Grisham v. Astrue (CONSENT)

Filing 16

MEMORANDUM OPINION AND ORDER directing that the decision of the Commissioner is AFFIRMED, as further set out. Signed by Honorable Judge Terry F. Moorer on 12/27/13. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
KELLY JEAN GRISHAM
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CASE NO. 1:12-cv-825-TFM
[wo]

MEMORANDUM OPINION AND ORDER
Kelly Jean Grisham (“Plaintiff” or “Grisham”) applied for disability insurance
benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq., on
August 14, 2009. Tr. 19. After being denied on November 2, 2009, Grisham timely filed
for and received a hearing before an administrative law judge (“ALJ”) who rendered an
unfavorable decision on February 18, 2011. Tr. 19, 35. Grisham subsequently petitioned
for review to the Appeals Council who rejected review of Grisham’s case on August 2,
2012.

Tr. 1.

As a result, the ALJ’s decision became the final decision of the

Commissioner of Social Security (“Commissioner”).

Id.

Judicial review proceeds

pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c). After careful scrutiny of the
record and briefs, for reasons herein explained, the Court AFFIRMS the Commissioner’s
decision.
I. NATURE OF THE CASE
Grisham seeks judicial review of the Commissioner’s decision denying her

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application for disability insurance benefits. 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. The court may affirm,
reverse and remand with instructions, or reverse and render a judgment. Id.
II. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983).
“The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the
Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). 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)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982)).
If the Commissioner’s decision is supported by substantial evidence, the district
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court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the evidence preponderates against the Commissioner’s findings. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986)). The Court must view the evidence as a whole, taking into account evidence
favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The Court “may not decide facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but
rather it “must defer to the Commissioner’s decision if it is supported by substantial
evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth,
703 F.2d at 1239).
The Court will also 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) (citing
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption
that the Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d
1233, 1236 (11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).
III. 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,

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provided they are both insured and disabled, regardless of indigence.1 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.2 Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, 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
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), 1382c(a)(3)(A). A “physical or mental impairment” is one
resulting from anatomical, physiological, or psychological abnormalities which are

1

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
http://www.ssa.gov/OP_Home/handbook/handbook.html
2
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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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).
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(4) Is the person unable to perform his or her former occupation?
(5) 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

3

This subpart is also referred to as “the Listing of Impairments” or “the Listings.”

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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 Guidelines4 (“grids”) or hear testimony from a vocational expert (“VE”). Id.
at 1239-40.
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.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Grisham, age 49 at the time of the hearing, has completed the 11th grade, and is
able to read and write. Tr. 160, 164, 171. Grisham has past relevant work as a bartender
(semi-skilled, light), receptionist (semi-skilled, sedentary), and insurance sales agent
(skilled, light). Tr. 33-34. Grisham’s alleged disability onset date is October 31, 2008.
Tr. 19. Grisham has not engaged in substantial gainful work activity since the alleged
onset date. Tr. 21. Grisham meets the insured status requirements of the Social Security
Act through December 31, 2013. Id. Grisham claims she is unable to work because of
4

See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in SSI cases).

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carpal tunnel syndrome, back pain, Attention Deficit Hyperactivity Disorder (“ADHD”),
interstitial cystitis, bronchitis/respiratory infections, and urinary tract infections. See Doc.
13 at 3-4. Grisham testified that, at the time of the hearing, she assisted an elderly couple
by doing chores for them two days per week and is paid $50 per visit. Tr. 50-51.
Grisham received treatment from various medical practitioners and the ALJ
considered the medical records from these practitioners.
A.

Primary Care Physician
Beginning in 2006, David Rhyne, M.D. (“Dr. Rhyne”) has served as Grisham’s

primary care physician. On October 10, 2006, Grisham saw Dr. Rhyne for the first time
with complaints of “urinary symptoms with frequency and urgency” and headaches. Tr.
296. Dr. Rhyne’s assessment was that Grisham’s headaches appeared to be “tension,
muscle-contraction” related, she had general fatigue, and her urinary problems were
related to a urinary tract infection (“UTI”). Id. Grisham was prescribed an antibiotic, but
returned to Dr. Rhyne’s office on October 17, 2006 because the antibiotic made her sick.
Tr. 295. Dr. Rhyne found that Grisham had “recent cystitis” and irritable bowl syndrome
(“IBS”), but noted that “CBC today was totally normal with urinalysis showing very
minimal pyuria.” Grisham was given multiple temporary prescription medications, and
did not return for four months. Tr. 294-95.
On February 28, 2007, Grisham returned to Dr. Rhyne’s office because a screening
test she had done at a health fair reported an abnormal bone density. Tr. 294. Dr. Rhyne
noted that it was a vague screening test, and there was no injury. Id. Dr. Rhyne also
noted that Grisham was “doing quite well,” but wanted to schedule a bone mineral
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density test to examine what he considered “questionable osteoporosis with abnormal
screening exam.” Id. On March 29, 2007, Grisham saw Dr. Rhyne with complaints of
pain in her hand and wrist. Tr. 293. Dr. Rhyne diagnosed Grisham with right hand carpal
tunnel syndrome, gave her a “cock-up wrist splint,” told her to take two Advil pills after
meals, and advised her that she may need surgery in the future. Id.
On July 31, 2007, Grisham returned to Dr. Rhyne’s office with complaints of
elevated blood pressure according to a home nurse, “GE reflux symptoms”, and the same
problems with “urinary frequency at night and nocturia x 3.” Tr. 292. Grisham’s blood
pressure was noted as normal on the date of the visit, but she was told to continue to
monitor it. Id. Dr. Rhyne also noted that Grisham had discontinued all medications he
previously prescribed “several weeks ago.” Id. Dr. Rhyne prescribed Zegerid for three
weeks to treat Grisham’s symptoms of gastroesophageal reflux disease (“GERD”), and
referred her to the urologist regarding her nocturia x 3. Id.
On December 27, 2007, Grisham sought treatment for pain in her neck from
carrying babies in her right arm for an extended period of time. Tr. 291. Dr. Rhyne
found dorsal thoracic kyphosis (over-curvature of the spine) present possibly caused by
degenerative disc disease, tender cervical fat pad, painful posteriority; however, he found
no real radiculopathy, good reflexes in both extremities, and Grisham’s x-rays were
normal. Id. Dr. Rhyne prescribed a temporary medication regimen. Id. Grisham
returned on January 3, 2008 with similar complaints of neck pain, but this stated her
belief that she overdid it putting up her Christmas decorations. Tr. 289. Gary G. Allen,

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M.D.5 (“Dr. Allen”) saw Grisham on this particular visit. Tr. 288. Dr. Allen noted that
Grisham does not have “any true radiculopathy-type symptoms,” her C-spine x-rays are
negative, she has 5/5 strength in upper extremeties, and she has full flexion and extension,
but with pain at the extremes of motion in lateral rotation and lateral bending. Tr. 289.
Dr. Allen’s impression was neck spasms, and assigned exercises and physical therapy.
Id.

On January 18, 2008, Grisham returned to Dr. Rhyne’s office requesting pain

medication for pain in her knees and shoulders; however, Dr. Allen noted that she was
already given Lortab and stated that he “refused to give her any form of pain medication.”
Tr. 288. Dr. Allen suggested that Grisham should go to the emergency room (“ER”) for
evaluation and observation if the pain was intolerable. Id.
On January 25, 2008, Grisham saw Dr. Rhyne again complaining of increased
problems with her neck, shoulders, and knees, and she also stated that the ordered
physical therapy did not improve her condition. Tr. 287. Dr. Rhyne noted that Grisham
did go to the ER, where she received a trigger injection in her neck and was prescribed
Darvocet and Naprosyn, but nothing for her knees. Id. Dr. Rhyne found a “large cervical
fat pad with definite tenderness by palpation posteriorly on the neck and upper T-spine
region,” but noted that Grisham’s range of motion was fair. Id. Dr. Rhyne also found
some early degenerative joint disease changes to her knees, but found no crepitance and
only mild ligament laxity evident. Id. Grisham was given four Depo Medrol injections,
her pain medication was increased, and she was instructed to use moist heat and utilize a
small pillow for relief. Id.
5

Dr. Allen is located within the same office as Dr. Rhyne.

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On April 21, 2008, Grisham returned with complaints of pain in her shoulder and
wrist (primarily in her wrist), as well as recent swelling in her feet and hands. Tr. 286.
Dr. Rhyne found mild pedal edema and right wrist inflammatory arthritis. Id. Dr. Rhyne
gave Grisham another Depo Medrol injection, recommended moist heat again, and
scheduled tests to check her kidney functioning. Id. Grisham returned on June 16, 2008
with complaints of a cough and loss of voice, along with a fever, chills, nausea, and
vomiting. Shane Cunningham, D.O.6 (“Dr. Cunningham”) noted that Grisham has a
history of tobacco abuse, she was not experiencing wheezing or shortness of breath, and
found that it was probably bronchitis. Id. Dr. Cunningham gave Grisham another Depo
Medrol injection, advised her to stop smoking, and prescribed Z-Pak, Tussionex, and
Phenergan. Id. Grisham called Dr. Rhyne’s office on June 17, 2008, and said she had
“spilled her bottle of Tussionex.” Tr. 285. Dr. Cunningham “[r]eluctantly” gave her
another two ounces. Id. On September 5, 2008, Grisham saw Dr. Rhyne with complaints
of right shoulder pain that radiates down her right arm. Tr. 281. Grisham stated there
was no event that caused the pain, but she “does a lot of lifting and working.” Id. Dr.
Rhyne’s assessment was that Grisham has “[c]ervical myositis plus/minus cervical
osteoarthritis,” and he advised her to apply moist heat and bio-freeze cream. Id.
On October 21, 2008, Grisham’s alleged onset date, she returned to Dr. Rhyne’s
office with complaints of persistent diarrhea lasting three weeks with associated anemia.
Tr. 280. Dr. Rhyne noted that there was “no [abdominal] tenderness whatsoever,” and the
physical exam on Grisham’s extremities was negative. Id. Dr. Rhyne’s diagnosis was
6

Dr. Cunningham is located within the same office as Dr. Rhyne.

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persistent diarrhea, and he prescribed Flagyl and Colestid to resolve the issues. Id.
Grisham returned on October 31, 2008 with similar complaint of “having some diarrhea
still;” however, “at times gets constipated.” Tr. 279. Dr. Rhyne found that Grisham
suffers from “intermittent diarrhea, persistent,” and intermittent cystitis.

Id.

He

prescribed Ferrous Sulfate, and referred Grisham to a gastroenterologist. Id.
On November 6, 2008, Dr. Rhyne performed a colonoscopy on Grisham which
revealed only “[m]ild mucosal erythema throughout the colon.” Tr. 243. On December
23, 2008, Grisham returned again with complaints of diarrhea that has had minimal
improvement. Tr. 278. Dr. Rhyne noted that a biopsy showed lymphocytic and possible
inflammation, and his diagnosis was lymphocytic colitis. Id. Dr. Rhyne prescribed
Lomotil, and instructed Grisham to avoid milk products. Id.
On January 23, 2009, Grisham returned to Dr. Rhyne’s office with complaints of
left leg and knee pain resulting from and injury she suffered the previous day. Tr. 277.
Grisham stated that she was pulling a wheelbarrow filled with logs that flipped on her and
the handle hit her leg and twisted her knee. Id. Dr. Rhyne found that Grisham had good
range of motion in her hip and knee, no real bruising seen, and “neurovascular intact in
the left leg,” but he did find “some pain along the lateral aspect.” Id. Dr Rhyne’s
assessment was a “left leg contusion and wrenching of the left knee,” and he prescribed
Skelaxin and Indocin and instructed Grisham to return if there is no improvement. Id.
On February 25, 2009, Grisham returned to Dr. Rhyne’s office with complaints of
right shoulder pain, swelling and pain in her hands, and occasional burning from her
elbows to her fingertips. Tr. 276. Dr. Rhyne noted that Grisham “has what appears to be

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reflex sympathetic dystrophy.” Id. Dr. Rhyne found “no radicular pain from her neck
present,” good pulses in her hands. Capillary refill was good in both hands, and there was
minimal swelling in her hands, and gave Grisham a trigger point injection of Depo
Medrol. Id.
Between March and August of 2009, Grisham sought treatment on four occasions
related to a cough, chest congestion, and shortness of breath. On March 30, 2009, Dr.
Rhyne diagnosed Grisham as having acute bronchitis with rhinitis and some epistaxis,
and prescribed medication. Tr. 275. On April 21, 2009, Dr. Rhyne saw Grisham after
she previously sought treatment in the ER and was told that she had pneumonia; however,
at a subsequent visit to Enterprise Hospital she was told she did not have pneumonia. Tr.
241-43, 275. Dr. Rhyne reviewed x-rays and found no evidence of pneumonia, and
believes it was “dyspnea with exertion” and “possibly” has some left ventricular
dysfunction.” Id. Dr. Rhyne ordered an echocardiogram and a thalium GXT stress test.
Id. On August 7, 2009, Grisham had complaints of a cough, chest congestion, and
abdominal cramps after being treated in the ER the previous day. Tr. 234-38, 271. Dr.
Rhyne stated that the abdominal cramps are likely due to her recently switching
depression medications and he instructed Grisham to switch back. Tr. 271. Dr. Rhyne
found rhinitis present and diagnosed Grisham with acute bronchitis, and prescribed her
multiple medications. Id. Grisham returned on August 10, 2009 because her bronchitis
had not been improving. Tr. 272. Dr. Rhyne gave Grisham a refill of the medications he
prescribed on the previous visit. Id.
Between October of 2009 and February of 2010, Grisham saw Dr. Rhyne for four

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unrelated issues. On October 1, 2009, Grisham saw Dr. Rhyne due to mild hoarseness
that began two weeks prior and was improving. Tr. 408. Grisham returned on October 8,
2009 due to abdomen pain and gastric bloating. Tr. 404.

Dr. Rhyne scheduled a

gastroenterology consultation later that day and told Grisham to start a low fat and bland
diet. Tr. 406. Grisham returned on November 16, 2009 with complaints of bilateral
lower back pain that radiates into both legs. Tr. 401. Dr. Rhyne scheduled Grisham for a
CT Scan and a physical therapy consultation, as well as prescribed Flexeril and Zipsor.
Tr. 403. On January 27, 2010, Grisham saw Dr. Rhyne with complaints of moderate pain
in her right middle finger. Tr. 397. Dr. Rhyne found that Grisham has trigger finger pain
and benign neoplasm of her skin, and conducted a punch biopsy, gave her a trigger point
injection, and prescribed Lortab. Tr. 400. Finally, on February 4, 2010, Grisham saw Dr.
Rhyne with complaints of sinus congestion that Dr. Rhyne found to be maxillary sinusitis
and prescribed multiple medications to help alleviate her problems. Tr. 393-95.
B.

Specialists
On September 26, 2008, Grisham began receiving treatment at the Urological

Associates of Dothan under the care of Rube R. Hundley, M.D. (“Dr. Hundley”). Tr.
341. Dr. Hundley noted that he does not think Grisham has interstitial cystitis, and that
her urine test came back negative. Id. Grisham returned on November 14, 2008 with
complaints of persistent pain in her bladder, which Dr. Hundley believes she may now
have interstitial cystitis. Tr. 339. Dr. Hundley scheduled Grisham for several procedures
that were completed on November 21, 2008. Tr. 338-39. Grisham returned in December
of 2008 and June of 2009 to discuss and change her medications for IBS and interstitial

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cystitis. Tr. 336-37.
On November 20, 2008, Grisham saw Robert P. Albares, M.D. (“Dr. Albares”)
upon referral by Dr. Rhyne for a gastroenterology consultation for her diarrhea, GERD,
and interstitial cystitis.

Tr. 326.

Dr. Albares went over the results of her recent

colonoscopy completed by Dr. Rhyne, and advised her that she was showing signs of
“some colitis.” Id. Dr. Albares adjusted Grisham’s current medications and scheduled a
follow up in two months. Id. Grisham did not return until October 13, 2009. Tr. 347.
Grisham returned for a consultation regarding abdominal pain in addition to the previous
symptoms from November.

Id.

Daniel F. Jackson, III, M.D. (“Dr. Jackson”)

recommended that Grisham undergo a stool study, a CT Scan of the abdomen and pelvis,
and another colonoscopy. Id. The CT scan revealed no acute abnormality. Tr. 439. The
scan of Grisham’s liver, spleen, pancreas, and adrenals were unremarkable, except for a
“few, tiny, hyperdense lesions [. . .] within the kidney, which are too small to characterize
and most likely represent renal cortical cysts.” Id. The CT scan also revealed no bowel
obstruction or pneumoperitoneum.

Id.

Similarly, Grisham’s October 27, 2009

colonoscopy revealed normal findings, with the exception of mild internal hemorrhoids.
Tr. 435.
On May 21, 2009, Grisham saw Alan D. Prince, M.D. (“Dr. Prince”) after being
referred by Dr. Rhyne for a neurological consultation. Tr. 253. Dr. Prince reviewed
Grisham’s complaints of pain in her arms and wrists, and numbness in her fingers. Id.
Dr. Prince noted her mental status as “normal to all parameters”, her cranial nerves as
unremarkable, and her motor exam revealed “some weakness in both abductor pollicis

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brevis muscles with a positive Tinel sign at both wrists.” Id. Dr. Prince diagnosed
Grisham with Bilateral Carpel Tunnel Syndrome, and referred her for possible surgery.
Tr. 254.
On June 5, 2009, Grisham underwent a right carpal tunnel release and a PIP joint
cyst excision on her right small finger. Tr. 263. Orvis H. Chitwood, III, M.D. (“Dr.
Chitwood”) noted that there were no immediate complications. Id. On June 18, 2009,
Grisham underwent left carpal tunnel release surgery with Dr. Chitwood after he found
that conservative treatment for carpal tunnel had failed. Tr. 262. Dr. Chitwood noted that
there were no immediate complications. Id. On June 30, 2009, Grisham returned for a
follow up, and Dr. Chitwood found the wound to be healed. Tr. 267.
On August 11, 2009, Grisham saw another urologist in Dr. Hundley’s office7 with
complaints of urinary urgency, frequency, and diminished force of stream for the past five
days. Tr. 335. The urologist noted that her bladder biopsies from November of 2008
were negative for malignancy, and Grisham reported improved symptoms after therapy.
Id. The urologist found that Grisham is taking multiple medications with anticholinergic
properties, and advised her to stop taking Oxybutynin for now. Id. The urologist also
found that the antihistamine Grisham was taking for a cold and her antidepressant
medication “may have combined to put her into urinary retention.” Id. The urologist
taught Grisham how to self-catheterize as “a temporary necessity.” Id. Grisham returned
on August 14, 2009, due to pain and a burning feeling in her buttocks. Tr. 334 Dr.
Hundley discussed the only medications that he wanted Grisham to be taking, and
7

The medical records only identify one of the urologist who saw Grisham by the initials BFW, the Court
will refer to this doctor as “the urologist.” Tr. 335.

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instructed her to self-catheterize later that day. Id.
On September 11, 2009, Grisham returned with complaints of pelvic burning and
pain. Tr. 333. The urologist noted that Grisham “is no longer self catheterizing” and that
“[s]he feels she is emptying her bladder well,” but she “just cannot tolerate the constant
burning that she feels in her bladder area.” Id. The urologist found no blood or signs of
infection in Grisham’s urine. Id. The urologist decided to try an intravesicle instillation,
and stated that if she does not get relief from this, then they will consider doing another
hydrodistention just like they did in November of 2008. Id. The urologist also advised
Grisham to continue taking the Elmiron that Dr. Hundley prescribed in August because it
often takes up to three months to see any significant symptomatic improvement. Id. On
September 17, 2009, Grisham underwent the hydrodistention procedure because she had
not gotten any relief since her appointment the previous week. Tr. 332. The urologist
noted a successful procedure, and that Grisham was voiding on her own prior to
discharge. Id.
Grisham returned for a follow up with the urologist on October 21, 2009. Tr. 540.
Grisham said that she was emptying her bladder appropriately at that time, and the
urologist noted that they “briefly [had] her on self catheterization while she was on many
medications with anticholinergic affects during an upper respiratory tract infection.” Id.
The urologist told Grisham to quit smoking and went over the positive effects it would
have on her urinary bladder and her bowels. Id. On December 14, 2009, Grisham saw
the urologist again after having a GI evaluation and was told that she has diverticulosis
and was prescribed Hyoscyamine. Tr. 539. Grisham stated the new medication has

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helped her diarrhea, calmed her bladder, and she has less urgency and frequency
problems, but her dysuria persists.

Id.

Grisham underwent another intravesical

instillation, and the urologist instructed her to stop taking Utira-C because of
anticholinergic properties in combination with another medication is likely the cause of
her retention issues. Id. The urologist again noted the one time they had her selfcatheterize due to the multiple medications that she took with anticholinergic properties;
however, they did not recommend self-catheterization again. Id.
On December 9, 2009, Grisham returned to Dr. Jackson with complaints of
abdominal pain, diarrhea, and concerns regarding medication side effects. Tr. 419. Dr.
Jackson noted that her recent colonoscopy and stool studies all came back negative, and
her recent symptoms are likely caused by IBS. Tr. 420. Dr. Jackson also went over
Grisham’s medication side effects, and told her to lower her dose if they cause
constipation. Id. Grisham returned on February 16, 2010 again suffering from abdominal
pain.

Tr.

416.

Dr.

Jackson

noted

that

Grisham

has

never

had

a

Esophagogastroduodenoscopy (“EGD”), discussed the risks of the procedure, and
received her informed consent. On March 11 2010, Grisham underwent an Upper GI
endoscopy to examine her epigastric abdominal pain. Tr. 415. Upon completing the
procedure Dr. Jackson found Grisham’s stomach and duodenum to be normal. Id. Dr.
Jackson recommended an antireflux regimen, and prescribed prilosec.
From January to May of 2010, Grisham began seeing Mark Byard, M.D. (“Dr.
Byard”) at Wiregrass Urology. Tr. 604-16. On January 26, 2010, Grisham saw Dr.
Byard for a second opinion. Tr. 615. Dr. Byard noted that Grisham had a high post void

Page 17 of 32

residual, but no sign of a UTI. Id. On February 16, 2010, Grisham returned with
complaints of pain, cramping, and burning. Tr. 609. Dr. Byard found that Grisham has a
neurogenic bladder condition and still has a high post void residual, and prescribed
medication. Tr. 612. On February 26, 2010, Dr. Byard performed a cystoscopy to drain
Grisham’s bladder and removed bladder stones. Tr. 557. On March 11, 2010, Grisham
returned for a followup after her cystoscopy. Tr. 608. On May 5, 2010, Grisham
returned stating that she feels she may not be emptying her bladder very well. Tr. 605.
Grisham told Dr. Byard that she has had to self-catheterize “once.” Id. Grisham was
prescribed medication. Id.
In August of 2010, Grisham returned to Dr. Chitwood due to her right middle and
ring fingers becoming progressively more painful.

Tr. 619.

After deciding that

conservative treatment has failed, Dr. Chitwood performed a second successful trigger
finger operation on both middle and ring fingers. Tr. 618-19.
C.

Mental Health
On July 21, 2009, Grisham saw Dr. Rhyne because she felt depressed due to her

son moving away from home. Tr. 273. Dr. Rhyne noted that Grisham has been on
Prozac without response, and she is very anxious. Dr. Rhyne diagnosed Grisham with
situational depression and generalized anxiety disorder.

Id.

Dr. Rhyne noted that

Grisham denied suicidal ideations, and told her to discontinue taking Prozac in favor of
Pristiq. Id. During Grisham’s August 7, 2009 visit, Dr. Rhyne noted that Grisham
stopped taking Pristiq and started taking Prozac again, and he recommended that she
switch back. Id.

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On October 21, 2009, Grisham saw Randy Jordan, Psy.D. (“Dr. Jordan”) for a
mental examination. Tr. 370. Grisham had an overall normal examination with nearly no
difficulties reported. Id. Dr. Jordan stated that Grisham had more difficulties with severe
depression in the 1990's, but did find that Grisham has “Major Depressive Disorder,
recurrent, mild.” Tr. 371. Dr. Jordan noted that Grisham’s intellectual and psychiatric
functions do not interfere with her daily living skills, but are “somewhat compromised by
[her] physical function.” Id. Dr. Jordan found that Grisham can manage her own
finances, function independently, hear and understand normal conversation without great
difficulty, carry out and remember instructions of a simple, one-step nature, do multi-step
tasks without some degree of supervision, and respond well to coworkers, supervision,
and everyday work pressures. Tr. 372. However, Dr. Jordan did find that continued
psychiatric and medical care is needed. Id.
On February 11, 2010, Grisham saw Charles R. Hicks, M.D. (“Dr. Hicks”) based
on the referral of Dr. Jordan. Tr. 514. Grisham stated that she has been depressed over
the past month and has had behavioral problems in the past such as anger and lack of
impulse control. Id. She stated that her son moved to California and she misses him and
is increasingly sad, blue, and depressed; however, she takes Pristiq which helps with her
depressive symptoms. Id. She also stated her concern that Dr. Jordan told her that she
may have adult ADHD. Id. After a mental examination, Dr. Hicks impression is that
Grisham suffers from an adjustment disorder with depressed mood, major depression with
melancholia, phase of life problems, and he ruled out adult ADHD. Id.
On October 27, 2010, Grisham saw Joanna Koulianos, Ph.D. (Dr. Koulianos”) for

Page 19 of 32

a Mental RFC Assessment. Tr. 388. Dr. Koulianos found that Grisham was moderately
limited in her ability “to carry out detailed instructions,” “to maintain attention and
concentration for extended periods,” “to interact appropriately with the general public,”
and “to respond appropriately to changes in the work setting.” Tr. 388-89. Dr. Koulianos
found that Grisham was not significantly limited in all other categories.

Id.

Dr.

Koulianos’ assessment is that Grisham is able to understand, remember, and carry out
very short and simple instructions; can be in contact with the general public on an
infrequent basis; and can handle no more than minimal changes in her work duties. Tr.
390.
After review of the medical records, the ALJ found the following severe
functionally limiting medical impairments: “interstitial cystitis, bilateral carpel tunnel
syndrome, [IBS], diverticulitis, [GERD], recurrent asthmatic bronchitis, and mild
depressive disorder. Tr. 22. The ALJ found that Grisham “has the residual functional
capacity to perform many of the elements of light work,” with the exception of several
limitations. Tr. 26. The ALJ found that Grisham is unable to perform any past relevant
work. Tr. 33. The ALJ then found that considering Grisham’s “age, education, work
experience, and residual functional capacity, there are jobs that exist in significant
numbers in the national economy that [she] can perform.” Tr. 34.
V. ISSUES
Grisham raises two issues for judicial review:
(1) Whether the ALJ failed to provide adequate weight to the opinions of the
claimant’s treating physician; and

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(2) Whether the jobs that the VE testified that the claimant can perform conflict
with the Dictionary of Occupational Titles (“DOT”).
See Doc. 13 at 6.
VI. DISCUSSION
A.

The ALJ properly discounted the opinion of Grisham’s treating physician
because it is inconsistent with his own treatment records, treatment records of
specialists, objective medical evidence, and longitudinal medical evidence.
Grisham argues that the ALJ erred by failing to provide adequate weight to the

opinions of her treating physician. See Doc. 13 at 7. Specifically, Grisham argues that
the ALJ erred in assigning “little weight” to her treating physician, Dr. Rhyne. Id.
Grisham asserts that Dr. Rhyne’s “record is replete with numerous visits Ms. Grisham
made to Dr. Rhyne with complaints of pain.” See Doc. 13 at 10. Grisham also argues
that Dr. Rhyne’s specialty is listed as internal medicine, and treated Grisham for
“impairments such as low back pain, [COPD], inflammatory arthritis and degenerative
joint disease” which are within his area of expertise. Id. Finally, Grisham argues that the
longitudinal record shows that Grisham has “sought treatment for carpal tunnel, low back
pain, abdominal pain, [IBS], and trigger finger pain, all of which could reasonably be
expected to cause significant pain. See Doc. 13 at 10-11
The law in this Circuit is well-settled that the ALJ must accord “substantial
weight” or “considerable weight” to the opinion, diagnosis, and medical evidence of the
claimant’s treating physician unless good cause exists not to do so. Jones v. Bowen, 810
F. 2d 1001, 1005 (11th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir.
1985). The Commissioner, as reflected in his regulations, also demonstrates a similar

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preference for the opinion of treating physicians:
Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of
individual examinations, such as consultive examinations or brief
hospitalizations.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 CFR §404.1527
(d)(2)). The ALJ’s failure to give considerable weight to the treating physician’s opinion
is reversible error. Broughton, 776 F.2d at 961-62.
However, there are limited circumstances when the ALJ can disregard the treating
physician’s opinion. The requisite “good cause” for discounting a treating physician’s
opinion may exist where the opinion is not supported by the evidence, or where the
evidence supports a contrary finding. See Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir.
1987); see also Phillips v. Barnhart, 357 F.3d 1232, 1240–41 (11th Cir.2004). An ALJ
can also discount the opinion of a medical source where it is inconsistent with the
source’s own notes. 20 C.F.R. § 404.1527(c)(3); Phillips, 357 F.3d at 1240–41. In
weighing medical opinions, an ALJ need not explicitly address every factor so long as the
ALJ provides good cause for rejecting the opinions. Lawton v. Comm’r of Soc. Sec., 431
Fed. Appx. 830 (11th Cir. 2011). The ALJ must articulate the weight given to a treating
physician’s opinion and must articulate any reasons for discounting the opinion. Schnorr,
816 F.2d at 581.
The ALJ held:
None of the claimant’s treating physicians have opined that the claimant has

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any particular restrictions on the basis of her impairments. On May 12,
2010, Dr. David Rhyne, a primary care physician, did opine that the
claimant would have pain present to such an extent as to be distracting to
the adequate performance of work activity (Exhibit 15F, page2). He also
opined that physical activity such as walking, standing, bending, stooping,
and moving of extremities would variably increase the claimant’s pain to
such a degree as to cause distraction from tasks or total abandonment of
task (Exhibit 15F, page 2). He also opined that the claimant’s prescribed
medication would cause side effects that could be expected to be severe and
limit effectiveness due to distraction in attention and drowsiness (Exhibit
15F, page 2). The opinion of Dr. Rhyne was given little weight for multiple
reasons.
Tr. 31. The ALJ gave Dr. Rhyne’s opinion little weight because he found it to be
inconsistent with his treatment records; based, in part, outside of his area of expertise; not
supported by the longitudinal medical evidence; and with heavy reliance on Grisham’s
subjective report of symptoms that are contrary to objective medical evidence. Tr. 31-32.
First, the ALJ found Dr. Rhyne’s opinions inconsistent with his own treatment
record. Tr. 31. The ALJ found that despite Dr. Rhyne’s opinion that Grisham would
have severe side effects from the medications that she is taking, Grisham never
complained about side effects, nor do Dr. Rhyne’s treatment records indicate that he has
discussed side effects with Grisham. Id. The ALJ also found that although Dr. Rhyne
said Grisham would be experiencing a large amount of pain, he did not give any work
restrictions or refer Grisham to a pain management specialist.8 Finally, the ALJ found
that although Grisham visited Dr. Rhyne for a long period of time, “her visits were
sporadic and consistently related to different, often minor temporary ailments.” Id. The
ALJ noted that Grisham’s visits would range from skin lesion, bladder infection,
8

The Court notes that Dr. Rhyne has referred Grisham to several specialists throughout his treatment
history, and Grisham sought treatment from each of the specialists without reservation.

Page 23 of 32

stomachache, or back pain with no consistent and repeated complaints of “pain caused
constantly by any particular impairment, and Dr. Rhyne never emphasized that she had ay
particular chronic condition that would cause her extensive pain.” Id.
Next, the ALJ found Dr. Rhyne’s opinion rested, in part, on an assessment of
impairments outside of his area of expertise. Id. In addition to Dr. Rhyne, Grisham also
sought treatment from specialists for each of her impairments. For example, Grisham
saw a gastroenterologist for her IBS, a urologist for her interstitial cystitis, a bone and
joint specialist for her carpal tunnel, and mental health specialists for her depression and
anxiety. The ALJ noted that Grisham’s urologist “did not opine that her interstitial
cystitis would cause her much pain, and he did not give [Grisham] any work related
restrictions.” Id. Similarly, Grisham’s gastroenterologist “did not opine that her [IBS]
would cause her much pain, and he did not give [Grisham] any work related restrictions.”
Id. The ALJ ultimately held that “[i]n the absense of such opinions of the claimant’s
treating specialists, it is very difficult to assign much weight to an apparent extreme
opinion offered by a treating general care physician. Tr. 32.
Additionally, the ALJ found that Dr. Rhyne often heavily relied on Grisham’s
“subjective report of symptoms and limitations, when the objective evidence did not
support her symptoms.” Id. The ALJ cites to a October 25, 2010 visit which an x-ray of
Grisham’s lumbar spine showed no evidence of fracture, dislocation, or arthritis; her
intervertebral spaces, apophyseal, and sacroiliac joints were well preserved; and he soft
tissue structure around the spine was normal.

Id.

“Despite the negative objective

evidence, Dr. Rhyne diagnosed the claimant with back pain and ordered her to have a

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trigger point injection.” Id. The ALJ found Dr. Rhyne’s periodic reliance on Grisham’s
subjective complaints over “an obvious lack of objective medical evidence” to be
“troubling.” Id.
Finally, the ALJ found that Dr. Rhyne’s opinion “is not supported by the
longitudinal medical evidence, including the treatment records of the claimant’s
specialists.” Id. The ALJ found that the record does show intermittent flare-ups of
Grisham’s impairments; however, the record does not support the extreme pain that Dr.
Rhyne alleges. Id. Since the ALJ recognized that Grisham does suffer from intermittent
flare-ups, he sets forth several physical restrictions in his RFC assessment “which
provide[] additional protection during a particular flare-up of one of the claimant’s
conditions. Id.
Grisham argues that the ALJ erred by discounting her treating physician because
his “opinion seems to rest at least in part on an assessment of an impairment outside his
area of expertise,” and his “opinion is not supported by the longitudinal medical
evidence.” Tr. 31-32; see also Doc. 13 at 10-11. An ALJ may, by showing good cause,
give minimal weight to a treating physician’s opinion that a claimant is disabled when
that opinion is “inconsistent with other evidence in the record.” Fries v. Comm’r of Soc.
Sec. Admin., 196 Fed. Appx. 827, 833 (11th Cir. 2006). With regard to the ALJ finding
that Dr. Rhyne’s opinions are inconsistent with the medical records of Grisham’s
specialists, courts have held that “[m]ore weight is given ‘to the opinion of a specialist
about medical issues related to his or her area of specialty than to the opinion of a source
who is not a specialist.’” King v. Barnhart, 320 F. Supp. 2d 1227, 1231-32 (N.D. Ala.

Page 25 of 32

2004) (quoting 20 C.F.R. § 404.1527(d)(5)). Here, in addition to treating Grisham, Dr.
Rhyne referred her to several specialists regarding her impairments. Grisham sought
treatment from each specialist on several occasions; in fact many of Grisham’s
appointments with specialists were either immediately following or immediately
preceding an appointment with Dr. Rhyne with similar complaints.
In addition to the examples given by the ALJ, the Court also finds several more
instances where Grisham’s specialists’ opinions were not as severe as Dr. Rhyne’s
opinion. Dr. Chitwood performed two successful right carpal tunnel release surgeries and
one successful left carpal tunnel release surgery.

In follow up appointments, Dr.

Chitwood noted that there were no complications, that Grisham’s wounds healed, that
they had discussed physical therapy, and that Grisham was instructed to return if the
symptoms do not improve. Dr. Chitwood did not put any restrictions on Grisham after
the follow ups, and Grisham never returned to report any complications. Although
Grisham has had regular flare-ups of her interstitial cystitis and IBS, the records regularly
indicate negative testing and improved symptoms after treatment. For example, Grisham
had two colonoscopies; one revealing “some colitis” but was otherwise normal and the
other revealing normal findings with the exception of mild internal hemorrhoids. CT
scans regularly revealed no abnormalities or bowel obstructions. Bladder biopsies were
negative for malignancy.
On follow-up visits Grisham regularly reported improved symptoms after therapy
or receiving medication, and when applicable her specialists would report that Grisham
was voiding properly before she was discharged. Many of Grisham’s symptoms related

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to her bladder retention were due to symptoms caused by a combined effect of
medications prescribed.

Once her urologist resolved the medication issue, Grisham

reported that the new medication regime helped her diarrhea, calmed her bladder, and she
had less urgency and frequency problems.
These examples also support the ALJ’s holding that Dr. Rhyne’s opinion is not
consistent with the longitudinal medical evidence. The ALJ held that “[w]hile the record
does document intermittent flare-ups of the claimant’s impairments, it does not support
such extreme pain experienced by the claimant.” Tr. 32. In addition to the examples
above where Grisham would report substantial improvement after treatment, the record
shows that Grisham would seek treatment often, however, not for the same symptoms.
Grisham’s medical records begin in October 2006 with urinary symptoms, but she did not
return with similar complaints until July 2007 (about nine months later) despite being
treated for other complaints during that time.

Grisham next complained of urinary

symptoms in September 2008 (about a year and three month later), August through
October 2009 (about eleven months later), and January through May 2010 (about three
months later).
Similarly, Grisham began seeking treatment for Carpal Tunnel from May through
June 2009, but after two surgeries did not return with complaints until August 2010
(about a year and two months later). Grisham began seeking treatment for abdomen pain
and diarrhea from October through December of 2008, but did not have further
complaints until October 2009 (about ten months later), then again in December 2009
(about two months later), and March 2010 (three months later). Finally, Grisham sought

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treatment for neck and shoulder pain regularly from December 2007 through April 2008,
but only returned one other time with further complaints of neck and shoulder pain in
February 2009 (about eleven months later). Grisham also sought treatment for leg and
knee pain, coughing and chest congestion, low back pain, and sinus congestion; however,
she was only treated for each of these one time and did not return with further
complaints.9

Finally, Grisham only sought treatment from mental health specialists

regarding depression and anxiety in July and October of 2009, and February of 2010
(each visit was about four months apart).10
The Court finds that the record provides substantial evidence for the ALJ’s
findings. Consequently, there is no error in the ALJ’s determination that Dr. Rhyne’s
records were not consistent with those of Grisham’s specialists or the longitudinal
medical evidence, and the ALJ assigning little weight to Dr. Rhyne’s opinion for these
reasons.11
Grisham also argues that “it is error for the ALJ to dismiss the treating physician’s
opinion as to the claimant’s RFC and disability status without specifically considering
and discussing the factors listed in 20 C.F.R. § 404.1527(d).” See Doc. 13 at 11.
Subsection (d) states:
(d) Medical source opinions on issues reserved to the Commissioner.
9

Grisham’s complaints of back, neck, leg and knee pain all came as a result of injuries sustained from
physical activities.
10
See the above Administrative Findings and Conclusions for an in depth outline of Grisham’s medical
history.
11
The Court notes that the ALJ also assigned little weight to Dr. Rhyne’s opinion because it was
inconsistent with his own treatment records, and due to reliance on Grisham’s subjective complaints when
objective evidence did not support her claims; however, Grisham did not dispute these findings in her
brief. Therefore, the Court will not discuss them in detail, but it does find that the record provides
substantial evidence to support these findings as well.

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Opinions on some issues, such as the examples that follow, are not medical
opinions, as described in paragraph (a)(2) of this section, but are, instead,
opinions on issues reserved to the Commissioner because they are
administrative findings that are dispositive of a case; i.e., that would direct
the determination or decision of disability.
(1) Opinions that you are disabled. We are responsible for making
the determination or decision about whether you meet the statutory
definition of disability. In so doing, we review all of the medical
findings and other evidence that support a medical source's statement
that you are disabled. A statement by a medical source that you are
“disabled” or “unable to work” does not mean that we will determine
that you are disabled.
(2) Other opinions on issues reserved to the Commissioner. We use
medical sources, including your treating source, to provide evidence,
including opinions, on the nature and severity of your impairment(s).
Although we consider opinions from medical sources on issues such
as whether your impairment(s) meets or equals the requirements of
any impairment(s) in the Listing of Impairments in appendix 1 to this
subpart, your residual functional capacity (see §§ 404.1545 and
404.1546), or the application of vocational factors, the final
responsibility for deciding these issues is reserved to the
Commissioner.
(3) We will not give any special significance to the source of an
opinion on issues reserved to the Commissioner described in
paragraphs (d)(1) and (d)(2) of this section.
20 C.F.R. § 404.1527(d). Subsection (d) provides nothing more than a general overview
discussing which issues are reserved to the Commissioner. The Court is unable to flesh
out any “factors” that the ALJ would be required to discuss. Additionally, Grisham has
failed to cite to a single factor or make any argument as to how the ALJ failed to properly
address the alleged factors. It is clear to this Court that the ALJ carefully considered the
medical evidence in the record in its totality in deciding to discount Grisham’s treating
physician, and the record contains sufficient evidence for the ALJ to make his decision.

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B.

The VE’s testimony regarding the jobs that the claimant can perform do not
conflict with the DOT.
Grisham argues that the “Commissioner’s decision should be reversed because the

jobs the [VE] testified the claimant can perform conflicts with the [DOT].” See Doc. 13
at 11. The VE testified that Grisham could perform jobs such as a call out operator,
counter clerk, and surveillance system monitor. Tr. 34, 72. Grisham asserts that the
“very short and simple instructions” designation made by the ALJ would result in a
General Education Development (“GED”) reasoning level of one under the DOT. See
Doc. 13 at 13. On the other hand, the jobs that the VE testified Grisham could perform
range from a reasoning level of two to three.12 Id. Grisham argues that the ALJ failed to
resolve this inconsistency, and that she is not able to perform the jobs identified by the
VE. See Doc 13 at 14.
The court in Leonard v. Astrue provided a helpful outline of SSR 00-4p in relation
to a conflict between a VE’s testimony and the DOT:
In SSR 00-4p, the [SSA] recognized that the VE's testimony should
generally be consistent with the information contained in the DOT. See
SSR 00-4p. Accordingly, when an apparent conflict between the two arises,
the SSR directs that the ALJ “must elicit a reasonable explanation for the
conflict before relying on the VE['s testimony].” Id. 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. See id. In
addition, before the ALJ can rely on the VE's testimony as substantial
evidence for his or her determination, he or she must resolve any conflict
between the VE's testimony and the DOT. See id. SSR 00-4p provides that
“[t]he adjudicator will explain in the determination or decision how he or
she resolved the apparent conflict.” Id. It also indicates that “[t]he
adjudicator must explain the resolution of the conflict irrespective of how
the conflict was identified.” Id.
12

Grisham focuses more on the positions of call out operator and surveillance system monitor because
they require a reasoning level of three, while counter clerk only requires a reasoning level of two.

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487 F. Supp. 2d 1333, 1338-39 (M.D. Fla. 2007), aff’d Leonard v. Comm'r of Soc. Sec.,
409 F. App'x 298 (11th Cir. 2011).
However, it has been found that “[e]ven assuming that an inconsistency existed
between the testimony of the vocational expert and the DOT, the ALJ did not err when,
without first resolving the alleged conflict, he relied on the testimony of the vocational
expert.” Miller v. Comm'r of Soc. Sec., 246 F. App'x 660, 662 (11th Cir. 2007); see also
Wilds v. Comm'r of Soc. Sec., 322 F. App'x 800, 801 (11th Cir. 2009) (holding that if a
conflict had existed, the administrative law judge would have been entitled to rely on the
testimony of the vocational expert). The Eleventh Circuit adopted the Sixth Circuit’s
view and held that the “VE's testimony ‘trumps’ the DOT.” Jones, 190 F.3d at 1230
(11th Cir. 1999). Although the Jones ruling was issued prior to the promulgation of SSR
00-4p, this Court has found that the “promulgation of SSR 00-4p does not [ ] undo the
rule in Jones nor does the ruling by its own wording, mandate that an ALJ has a duty to
independently investigate whether there is a conflict between the VE's testimony and the
DOT.” Campbell v. Astrue, 2010 WL 3362230, *7 (M.D. Ala. 2010) (quoting Garskof v.
Astrue, 2008 WL 4405050, *5 (M.D. Fla. 2008). The reason SSR 00-4p does not undo
the rule in Jones is because an “agency's ruling does not bind this court.” B. B. v.
Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981).13
Here, the ALJ clearly requested that the VE testify whether his testimony

13

A decision of the Unit B panel of the Former Fifth Circuit is regarded an as binding precedent which
should be followed absent Eleventh Circuit en banc consideration. Stein v. Reynolds Sec., Inc., 667 F.2d
33, 34 (11th Cir. 1982).

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“materially differs from the information set forth in the [DOT].” Tr. 70. To which the
VE responded “Yes, Your Honor.” Id. The ALJ even provided Grisham’s counsel with
the option to question the VE which would have been an opportune time to raise the issue
of such a conflict to the ALJ’s attention; however, no questions related to this issue were
asked. Tr. 75-77. Accordingly, the Court finds that the ALJ properly inquired as to
whether there was a conflict between the VE’s testimony and the DOT, and was under no
further duty to independently investigate the issue without more.
VII. CONCLUSION
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 is entered
herewith.
DONE this 27th day of December, 2013.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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