Pennington v. Colvin

Filing 17

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 2/3/15. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MAURICE B. PENNINGTON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.

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CIVIL ACTION NO. 2:13cv662-CSC
(WO)

MEMORANDUM OPINION
I. Introduction
The plaintiff applied for supplemental security income benefits under Title XVI of the
Social Security Act, 42 U.S.C. § 1381 et seq., alleging that he was unable to work because
of a disability. His application was denied at the initial administrative level. The plaintiff
then requested and received a hearing before an Administrative Law Judge (“ALJ”).
Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a
subsequent request for review. The ALJ’s decision consequently became the final decision
of the Commissioner of Social Security (Commissioner).2 See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). The parties have consented to the United States Magistrate Judge

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013

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 to the Commissioner of Social Security.

conducting all proceedings in this case and ordering the entry of final judgment, pursuant to
28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1. Based on the court’s review of the record in
this case and the briefs of the parties, the court concludes that the decision of the
Commissioner should be affirmed.
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 . . .
To make this determination,3 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1)
(2)
(3)
(4)
(5)

Is the person presently unemployed?
Is the person’s impairment severe?
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?
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 above 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.”

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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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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The standard of 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); Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir.
2007). “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); Crawford v. Comm'r of Soc.
Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004). A reviewing court may not look only to
those parts of the record which supports 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, 1180 (11th Cir. 1986). The court “may
not decide the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of
the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004)
(alteration in original) (quotation marks omitted).
[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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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) (Unit A).

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III. The Issues
A. Introduction. The plaintiff was 28 years old at the time of the hearing before the
ALJ and has an 8th grade education. The plaintiff’s prior work experience is very limited
but does include work as a restaurant dishwasher. Following the telephonic administrative
hearing at which the plaintiff waived counsel, the ALJ concluded that the plaintiff has severe
impairments of anti-social personality disorder and cannabis dependence in remission. At
the hearing, the plaintiff also alleged a breathing/asthma impairment.1 Nonetheless, the ALJ
concluded that the plaintiff was not disabled because the plaintiff has the residual functional
capacity to perform work.
B. Plaintiff’s Claims. The claims as stated by the plaintiff are (1) the ALJ failed to
properly evaluate and state the weight given to the opinions of Dr. Warren and Dr. Estock,
the administration’s own consultative examiners, and (2) the ALJ failed to properly consider
plaintiff’s breathing impairment pursuant to the Eleventh Circuit’s “slight abnormality”
standard.
IV. Discussion
A disability claimant bears the initial burden of demonstrating an inability to return
to his past work. Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990). In determining whether
the claimant has satisfied this burden, the Commissioner is guided by four factors: (1)

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The plaintiff alleged also that he was mentally retarded. The ALJ found that allegation lacking
in merit because it was not reported in his SSI application; there was no evidence that any mental deficiency
arose before age 21; and this impairment was not alleged at the hearing. (R. 23)

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objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3)
subjective evidence of pain and disability, e.g., the testimony of the claimant and his family
or friends; and (4) the claimant’s age, education, and work history. Tieniber v. Heckler, 720
F.2d 1251 (11th Cir. 1983). The ALJ must conscientiously probe into, inquire of and explore
all relevant facts to elicit both favorable and unfavorable facts for review. Cowart v.
Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981). The ALJ must also state, with sufficient
specificity, the reasons for his decision referencing the plaintiff’s impairments.
Any such decision by the Commissioner of Social Security which involves a
determination of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphases added). Within this analytical framework, the court will
address the plaintiff’s claims.
A. The ALJ Properly Considered the Opinions of Drs. Warren and Estock. At
the behest of the Social Security Administration, Dr. Warren conducted a psychological
examination of Pennington in August 2010. Dr. Warren concluded
Maurice's ability to function independently is moderately impaired. Presently,
his ability to remember and carry out instructions, as well as respond
appropriately to supervisors, coworkers, and work pressures in a work setting
is moderately to severely impaired.
(R. 226)
Dr. Estock, a State Agency medical consultant, completed a mental residual functional
capacity assessment form after reviewing Pennington’s medical records. On the summary
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conclusion part of the form, Dr. Estock checked boxes labeled “markedly limited” in two
areas of social interaction: (1) the ability to accept instructions and respond appropriately to
criticism from supervisors, and (2) the ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes. (R. 243) At the hearing before the ALJ,
a vocational expert testified that a person with those impairments would not be able to
maintain work. (R. 60)
On this basis, Pennington argues that he is disabled and that the ALJ erred because
he did not properly consider the opinions of Drs. Warren and Estock. This contention is
incorrect for two reasons. First, as aptly noted by the Commissioner, Dr. Estock’s checking
of two markedly limited boxes in the summary conclusion section of the mental residual
functional capacity assessment form does not constitute his actual residual functional
assessment. See Land v. Comm’r of Soc. Sec., 494 Fed. Appx. 47, 49 (11th Cir. 2012).
Rather, Dr. Estock’s opinion is encapsulated in the “functional capacity assessment” section
of the form. (R. 244) And in that section, Dr. Estock stated
A.
Claimant could understand and remember simple instructions but not
detailed ones.
B.
Claimant could carry out simple instructions and sustain attention to
simple tasks for extended periods. Claimant would benefit from a flexible
schedule and would be expected to miss 1-2 days of work per month due to
condition. Claimant would benefit from casual supervision. Claimant would
function best with his own work area/station apart from others. Claimant could
tolerate ordinary work pressures/Claimant would benefit from a familiar
repetitive work routine but should avoid: excessive workloads, quick decision
making, rapid changes, and multiple demands. Claimant would benefit from
regular rest breaks and a slowed pace.
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C.
Contact with the public should be limited. Feedback should be
supportive. Feedback should be tactful and nonconfrontational. Contact with
coworkers should be limited. Claimant would be expected to have occasional
conflicts with coworkers.
D.
Claimant could adapt to infrequent, well explained changes. Claimant
would need help with planning and goal setting.
(R. 244).
In his opinion, the ALJ recited these findings and stated, “My findings are in
substantial agreement with those of Dr. Estock, the State Agency medical consultant who
also determined that the claimant was not disabled.” (R. 33) The ALJ also confirmed that
he gave “significant weight” to Dr. Warren’s opinion. (Id.) Thus, it is apparent that, contrary
to Pennington’s argument, the ALJ did consider the limitations found by both Drs. Warren
and Estock in his residual functional capacity determination which is stated in full below.
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform a full range of work at all exertional
levels but with the following nonexertional limitations: the claimant can
understand and remember simple instructions but not detailed ones. The
claimant can carry out simple instructions and sustain attention to simple tasks
for extended periods. The claimant would benefit from a flexible schedule and
would be expected to miss one to two days of work per month due to his
condition. A flexible schedule means claimant would have some control over
his day in terms of when job tasks would be performed during the day, and he
would not be restricted to an assembly line, set-time type of job. The claimant
would benefit from casual supervision. The claimant would function best with
his own work area/station apart from others. The claimant can tolerate ordinary
work pressures. The claimant would benefit from a familiar repetitive work
routine but should avoid excessive workloads, quick decision-making, rapid
changes, and multiple demands. The claimant would benefit from regular rest
breaks and a slowed pace. Contact with the public should be limited.
Feedback should be supportive. Feedback should be tactful and
nonconfrontational. Contact with co-workers should be limited. The claimant
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would be expected to have occasional conflicts with co-workers. The claimant
can adapt to infrequent, well-explained changes. The claimant would need help
with planning and goal setting.
(R. 28)
B. The ALJ Properly Consider Plaintiff’s Breathing Impairment. At step two
of the sequential evaluation, the ALJ considered Pennington’s alleged breathing impairment
and concluded that it was not severe. Pennington contends this was error because “the
medical evidence of record in its totality demonstrates asthma to be a ‘severe’ impairment,
thus, more than a “slight abnormality.” (Pl’s Br., doc. # 12, at 6) Here is what the ALJ said
about Pennington’s asthma.
In the Disability Report - Adult, the claimant alleged that he was disabled
because of asthma. Having considered the evidence, I find that this complaint
is not supported by objective medical findings which demonstrate any impact
on the ability to work, and thus, asthma is not a severe impairment. The record
reflects that the claimant presented to Southern Health Associates on
September 28, 2006 with a history of asthma. He had recently been released
from prison after being incarcerated for three years. On examination, he was
in no acute distress. There was wheezing in the left lung lobe. Peak flow in
the office was 340. He was a smoker. Dr. Todd B. Pearlstein's impression
was asthma. The claimant was started on Asmanex and Singulair. He was
instructed to use Albuterol on an as needed basis. Dr. Pearlstein indicated that
this would help his symptoms immensely (Exhibit 2F).
The claimant presented to Southern Health Associates on December 29, 2006
with complaint of sore throat, cough and wheezing. On examination, he was
in no acute distress. There was wheezing throughout the lungs. The claimant
was given one Pulmicort and Albuterol nebulizer treatment in the office and
his symptoms resolved almost completely (Exhibit 2F).
Records from Healthcare Corrections show that an x-ray of the chest was
performed and reviewed on June 26, 2007. The claimant's lungs were clear.
There was no evidence of active cardiopulmonary disease (Exhibit 1F).
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Records from Prison Health Services show that the claimant needed a new
inhaler on July 6, 2007. He had very mild wheezing bilaterally. The claimant
was assessed as having intermittent asthma on September 14, 2007. His lungs
were clear to auscultation bilaterally (Exhibit 1F).
Records from Fountain-Davis Correctional Facility show that an x-ray of the
chest was performed and reviewed on January 24, 2008. The claimant's lung
fields were clear without infiltrate, mass, effusion, or pneumothorax. Dr. Anne
Glaser's impression was negative chest x- ray (Exhibit 1F).
Records from Correctional Medical Services show that the claimant's lungs
were clear to auscultation bilaterally on February 12, 2008 (Exhibit 1F).
A health evaluation was conducted at Alabama Department of Corrections on
September 17, 2009. The claimant's lungs were clear to auscultation
bilaterally (Exhibit 1F).
The claimant presented to Southern Health Associates on February 17, 2010
with asthma flare. He was out of medication. He was a smoker. He smoked
one package of cigarettes each day. The claimant's asthma had previously been
well controlled on no daily medication. He had no history of hospitalizations.
On examination, he was in no acute distress. Examination of the lungs showed
that respiration rhythm and depth were normal. His lungs were clear to
auscultation. There was no decrease in breath sounds. There was no
wheezing. There were no rhonchi. Dr. Pamela S. Trantham assessed asthma
with acute exacerbation. The claimant was strongly urged to discontinue
smoking. Dr. Trantham offered medicines to help the claimant stop smoking.
The claimant declined (Exhibit 2F).
The claimant presented to Troy Medical Center Triage on April 22, 2010 in no
acute distress with reports of cold, cough, and wheezing times one day. The
claimant alleged having a history of asthma. The claimant's social history was
positive for smoking. The claimant denied having any pain. On examination,
his chest wall was non-tender. He had audible expiratory wheeze. He was
diagnosed with shortness of breath, and asthma exacerbation. He was
prescribed albuterol ampules, atrovent ampules, and doxycycline. Dr. Lenny
Nasca indicated that the claimant could return to work/school (Exhibit 3F).

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Dr. Richard Whitney, the State Agency medical consultant reviewed the
documentary evidence at the initial level of the administrative review process.
Dr. Whitney completed a physical summary on July 7, 2010 indicating that the
claimant was alleging asthma. The claimant had no history of hospitalizations.
He had no underlying pathology. In April 2010, he was in the emergency
room with asthma (Exhibit 4F). Dr. Whitney's "02" rating is consistent with
a finding of no severe asthma impairment.
Per his testimony, the claimant claimed that he could not work due to asthma.
He described symptoms of shortness of breath and problems with asthma
triggers, such as smoke, chemicals, and weather changes. He reported using
oral medication, inhalers and nebulizers over the years to treat his asthma. The
claimant testified that he required no emergency room visits in 2011 due to
asthma. I actually see no emergency room visits since the application date in
May 2010. The record shows one emergency room visit in April 2010, which
was prior to filing; records indicate the claimant quickly responded to
conservative treatment for asthma related shortness of breath.
Pursuant to Social Security Ruling 96-6p, I have considered and given
substantial weight to the opinion of Dr. Whitney, the State Agency medical
consultant, who found no severe physical impairment. This opinion is
reasonably supported by the evidence available at that time, and supportive of
the decision being rendered herein. The claimant's medically determinable
physical impairment of asthma does not cause more than minimal limitations
in the claimant's ability to perform basic work activities and is therefore nonsevere. The record indicates that the claimant receives a good response to a
conservative medication regimen.
(R. 24-25)
This lengthy recitation of the ALJ’s consideration of the medical records demonstrates
that he fully considered the evidence. His conclusion that Pennington’s asthma was not
severe is wholly consistent with the legal standard that an impairment “is not severe if it does
not significantly limit [a claimant's] physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1521(a). In other words, merely because Pennington has asthma does not

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mean it is severe. Rather “the severity of a medically ascertained disability must be measured
in terms of its effect upon ability to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544,
1547 (11th Cir.1986). The ALJ properly considered the effect of Pennington’s asthma on
his ability to work, and his conclusion that Pennington’s asthma is not severe is supported
by substantial evidence.
The court has carefully and independently reviewed the record, and concludes that the
decision of the Commissioner is supported by substantial evidence. The court will enter a
final judgment affirming the Commissioner’s decision.
Done this 3rd day of February, 2015.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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