Boyd v. Astrue (CONSENT)

Filing 16

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 1/21/14. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JEROME BOYD,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO.: 2:12cv879-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Jerome Boyd, applied for disability insurance benefits and supplemental

security income (“SSI”). His application was denied at the initial administrative level.
Plaintiff then requested and received a hearing before an Administrative Law Judge
(“ALJ”). Following the hearing, the ALJ issued a decision in which he found Plaintiff
not disabled at any time through the date of the decision. The Appeals Council rejected
Plaintiff’s request for review of the ALJ’s decision. The ALJ’s decision consequently
became the final decision of the Commissioner of Social Security (“Commissioner”).1
See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the
1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.

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court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties
have consented to the conduct of all proceedings and entry of a final judgment by the
undersigned United States Magistrate Judge. Pl.’s Consent to Jurisdiction (Doc. 10);
Def.’s Consent to Jurisdiction (Doc. 9). Based on the court’s review of the record and the
briefs of the parties, the court AFFIRMS the decision of the Commissioner.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(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).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of
Impairments]?
(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 above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
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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.

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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).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried 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 Guidelines4 (grids) or call 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

3

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The
same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited
as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).

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See 20 C.F.R. pt. 404 subpt. P, app. 2.

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experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
“Substantial evidence is more than a scintilla, but less than a preponderance. It is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support the decision of the ALJ, but instead must
view the record in its entirety and take account of evidence which detracts from the
evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No
similar presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was forty-nine years old at the time he filed his application and had a

limited education. Tr. 38. Plaintiff’s past relevant work was as a “concrete finisher” and
a “construction laborer.” Id. Following the administrative hearing, and employing the
five-step process, the ALJ found Plaintiff “has not engaged in substantial gainful activity
since August 1, 2009, the alleged onset date.” (Step 1) Tr. 24. At Step 2, the ALJ found
that Plaintiff suffers from the following severe impairments: “hypertension and mild
degenerative changes of the knee.” Id. The ALJ then found that Plaintiff “does not have
an impairment or combination of impairments that meets or medically equals one of the
listed impairments.” (Step 3) Tr. 26. Next, the ALJ found that Plaintiff has the RFC to
perform light work with a few additional restrictions. Id. The ALJ then concluded that
Plaintiff “is unable to perform any past relevant work.” (Step 4) Tr. 37. At Step 5, the
ALJ found that, “[c]onsidering the claimant’s age, education, work experience, and
residual functional capacity,” and after consulting with the VE, “there are jobs that exist
in significant numbers in the national economy that the claimant can perform.” Tr. 38.
The ALJ identified the following occupations as examples: “mold filler,” “utility hand”
and “vacuum tender.” Tr. 39. Accordingly, the ALJ determined that Plaintiff “has not
been under a disability, as defined in the Social Security Act, from August 1, 2009,
through the date of this decision.” Id.

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IV.

PLAINTIFF’S CLAIMS
Plaintiff presents two issues for this court’s consideration in review of the ALJ’s

decision: (1) whether “the ALJ’s [RFC] findings are [] based on substantial evidence”;
and (2) whether “the ALJ erred in failing to consider physical and mental conditions in
combination.” Pl.’s Br. (Doc. 13) at 7-13. The court will address each argument below.
V.

DISCUSSION
A.

The RFC Findings

Plaintiff asserts that the ALJ’s RFC findings are not supported by substantial
evidence. It appears Plaintiff’s argument is two-fold. First, Plaintiff appears to argue
that the ALJ did not properly consider the treating source’s opinion.5 Pl.’s Br. (Doc. 13)
at 7-9. Second, Plaintiff asserts that the mental RFC findings were flawed because the
ALJ did not “state with particularity” the amount of time Plaintiff was capable of
spending with each activity. Pl.’s Br. (Doc. 13) at 9. The court finds both arguments to
be without merit.
To the extent that Plaintiff is arguing that the ALJ did not properly consider the
opinion of Dr. Yearwood, Plaintiff’s treating source, the court disagrees.

An ALJ

normally must give the opinion of a treating physician “substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” See Phillips, 357 F.3d at 1240.

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Defendant states in her brief that “Plaintiff mentions Dr. Yearwood’s opinion, noting that the
ALJ accepted portions of the opinion and rejected others, but does not allege the ALJ erred in
assigning weigh[t] to the opinion.” Def.’s Br. (Doc. 14) at 6. While the court tends to agree with
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“‘[G]ood cause’ exists when the: (1) treating physician’s opinion was not bolstered by
the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records.” Id. at
1240-41. Further, “[t]he ALJ must clearly articulate the reasons for giving less weight to
the opinion of a treating physician, and the failure to do so is reversible error.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also MacGregor v. Bowen, 786 F.2d
1050, 1053 (11th Cir. 1986) (holding the ALJ “must specify what weight is given to a
treating physician’s opinion and any reason for giving it no weight”).
Here, the ALJ did consider Dr. Yearwood’s opinion. In fact, the ALJ expressly
stated “I have generally accepted Dr. Yearwood’s opinions regarding physical capacity
and fatigue/weakness.” Tr. 34. The ALJ did find, contrary to Dr. Yearwood’s opinion of
Plaintiff’s physical capacities, that Plaintiff was capable of working an eight-hour
workday; it was Dr. Yearwood’s opinion that Plaintiff could work seven hours per day.
Tr. 34. The ALJ also rejected Dr. Yearwood’s “opinions as set forth in his responses to
the ‘Clinical Assessment of Pain’ questionnaire.” Tr. 34. To the extent the ALJ rejected
such portions of Dr. Yearwood’s opinion, the ALJ gave good cause. Specifically, the
ALJ stated,
I find that there is nothing in Dr. Yearwood’s records to support a finding
that [Plaintiff] is incapable of working for a total of 8-hours during a
workday. I find Dr. Yearwood’s opinion in this regard to be contradicted

this statement, the court will briefly address the issue.
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by his opinion that, while work activity may result in some increased
fatigue, it would not prevent adequate functioning.
Tr. 34. Additionally, the ALJ explained,
Dr. Yearwood’s opinions regarding pain lack persuasive weight; they are
unsubstantiated by any clinical or laboratory findings and they are not
accompanied by objective medical evidence. Indeed, a detailed review of
his records does not indicate a single report of objective medical evidence.
Indeed, a detailed review of his records does not indicate a single report of
objective diagnostic testing. Nor do the records reveal a single notation
reflecting the actual observation of an objective sign during physical
examination. Moreover, Dr. Yearwood’s assessments regarding pain are
inconsistent with his physical capacities evaluation and the claimant’s
relatively frequent reports of no pain appearing in his records. They are
entirely inconsistent with the observations of both the physicians who
performed detailed consultative evaluations of the claimant, and they are
inconsistent with the results of objective radiographic studies performed at
the time of the second consultative examination, discussed below. In short,
it appears that the opinions expressed by Dr. Yearwood regarding pain are
likely based entirely on the reports of the claimant.
Tr. 35. Thus, the ALJ articulated “good cause” for the rejection of Dr. Yearwood’s
statements—that the opinion was not bolstered by the evidence, evidence supported a
contrary finding, and the opinion was conclusory—and that rejection is supported by
substantial evidence.
To the extent that Plaintiff is arguing that the mental RFC findings were flawed
because the ALJ did not “state with particularity the amount of time a [p]laintiff is to
spend in each activity in total and at any one time,” the court finds no merit in Plaintiff’s
argument. Pl.’s Br. (Doc. 13) at 9. In particular, Plaintiff complains that the ALJ’s
decision lacked the required specificity in two instances: when the ALJ gave a sit/stand
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option for Plaintiff in the RFC without stating exact lengths of time for which Plaintiff
can sit and stand and when the ALJ used the word “some” (a term not defined in the
DOT) when stating Plaintiff has the ability to do “some pushing and pulling.” Id. at 9-10.
Plaintiff relies on SSR 83-12 and SSR 96-8p as authority for such a requirement. In
response, Defendant states that “[Plaintiff] has not cited with specificity the portions of
the rulings that provide the inconsistency.” Def.’s Br. (Doc. 14) at 5 (citations omitted).
The Commissioner could find no inconsistencies, and neither can the court.
Other courts have upheld RFCs including a sit/stand option and the use of a term
undefined by the DOT. Williams v. Barnhart, 140 F. App’x 932, 937 (11th Cir. 2005)
(unpublished) (“Although the ALJ failed to specify the frequency that [plaintiff] needed
to change his sit/stand position, the reasonable implication of the ALJ’s description was
that the sit/stand option would be at [plaintiff’s] own volition. This implication satisfies
[plaintiff’s] needs.”) (unpublished); Emory v. Astrue, 2013 WL 1010660, at *6 (N.D. Ga.
Feb. 5, 2013) (remand was unwarranted when ALJ included a sit/stand option and used
the term “repetitive” (a term undefined by the DOT) in RFC because it was apparent
from the record that the ALJ was using the term “repetitively” interchangeably with the
word “constantly,” a term which is defined by the DOT). In this case, it is clear that the
ALJ used the word “some” interchangeably with the word “occasional.”6 Neither the use

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In the RFC included in the decision, the ALJ stated that Plaintiff is capable of “some pushing
and pulling of arm and/or leg controls.” Tr. 26. However, at the hearing, when posing the
hypothetical question to the VE using the same limitations as included in the RFC, the ALJ used
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of the word “some,” nor the ALJ’s failure to specify an exact amount of time for sitting
and standing, are reversible error.
B.

Consideration of Mental and Physical Conditions in Combination

Plaintiff asserts that the ALJ’s failure to consider physical and mental conditions
in combination was in error. Specifically, the Plaintiff asserts that (1) “the ALJ did not
adequately justify” why depression “should be relegated to a non[-]severe impairment
characterized as mild”; and (2) the ALJ should have considered all of Plaintiff’s
medically determinable impairments of which we are aware, including the medically
determinable impairments that are not “severe,” when the ALJ assessed Plaintiff’s RFC.
Pl.’s Br. (Doc. 13) at 13.
In the first argument, Plaintiff asserts that the ALJ failed to adequately justify the
determination that Plaintiff’s alleged depression was non-severe. At Step 2 in the ALJ’s
evaluation process, the burden of proof rests with a plaintiff to establish the presence of
specific severe impairments. See Phillips, 357 F.3d at 1237-39. An impairment is found
to be severe only if it significantly limits a plaintiff’s physical or mental ability to do
basic work activities. 20 CFR 404.1520(c) (“You must have a severe impairment. If you
do not have any impairment or combination of impairments which significantly limits
your physical or mental ability to do basic work activities, we will find that you do not
have a severe impairment . . . . ”).

the word “occasional” in place of the word “some.” Tr. 67-68. The court finds this sufficient to
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In this case, the ALJ stated,
Although an examining source has listed “depression” as an impression, I
find depression to be non-severe, based on the entirety of the relevant
evidence, which is discussed in detail, below. I have considered the four
broad functional areas set out in the disability regulations for evaluation
mental disorders and in section 12.04 of the Listing of Impairments. These
four broad functional areas are known as the “paragraph B” criteria. The
first functional area is activities of daily living. In this area, the claimant
has no limitation. The next functional area is social functioning. In this
area, the claimant has mild limitation. The third functional area is
concentration, persistence or pace. In this area, the claimant has no
limitation. The fourth functional area is episodes of decompensation. In
this area, the claimant has experienced no episodes of decompensation of
extended duration. In reaching these conclusions, I have adopted the
findings of a State Agency consulting psychologist. See the discussion
below. Because claimant’s “depression” causes no more than a “mild”
limitation in any of the first three areas and “no” episodes of
decompensation of extended duration in the fourth area, it is nonsevere.
Tr. 26 (citations omitted). Further in the decision, the ALJ explained,
Based on my detailed review of the entirety of the evidence, . . . I agree
with the findings of Dr. Jackson and have determined that, although
depression is a “medically determined” mental impairment, the claimant
has failed to carry his burden of showing that the alleged depression is
“severe” as that term is defined by the regulations.
Tr. 31. The court finds that the ALJ did adequately justify why Plaintiff’s alleged
depression was found to be mild and non-severe.
In the final argument, Plaintiff asserts that the ALJ should have considered
Plaintiff’s depression in conjunction with his other medically determinable impairments
when the ALJ assessed Plaintiff’s RFC. Pl.’s Br. (Doc. 13) at 12. Plaintiff properly

show that the ALJ was using the word “some” interchangeably with the word “occasional.”
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states that an ALJ must “consider all of [a plaintiff’s] medically determinable
impairments of which [the ALJ is] aware, including [the] medically determinable
impairments (MDI) that are not ‘severe,’ when [the ALJ] assess[es] [a plaintiff’s]
[RFC].” Id. (citing 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)). However, the ALJ did
consider Plaintiff’s alleged depression and its effect on Plaintiff’s ability to work when
discussing the RFC. Specifically, as Defendant points out, “[t]he ALJ specifically noted
that she had to consider Plaintiff’s impairments in combination at steps two and three of
the sequential evaluation in determining residual functional capacity.” Def.’s Br. (Doc.
14) at 9 (citing Tr. 23). Additionally, none of the physician’s in this case opined that
Plaintiff suffered from any mental limitation that affected his ability to work. In the
ALJ’s explanation of the RFC, the ALJ found Plaintiff’s allegations of depression to be
lacking credibility completely, highlighting at least four examples of Plaintiff having
visited his treating physician without reporting any symptoms of depression. The ALJ
further explained his reasoning for not finding the depression to effect the RFC by
stating,
I find it somewhat implausible that claimant could be in the depressive state
(for years), as alleged and reported to Dr. Kirkland, and never have
reported the condition to his treating physician. I also find it implausible
that he could have been (or presently could be) in such a condition and not
even try to access one of the many free, public, mental health clinics located
throughout the state. Finally, I would note that, although requested to identify
every condition that interfered with his ability to work during the hearing, the
claimant did not mention or refer to depression or any other mental condition.

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Tr. 31. The court finds that the ALJ did consider the Plaintiff’s alleged depression when
assessing Plaintiff’s RFC. The ALJ’s decision was supported by substantial evidence and
thus no error has occurred here.
VI.

CONCLUSION
The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is AFFIRMED.
separate judgment will issue.
Done this 21st day of January, 2014.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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A