Little v. Social Security Administration, Commissioner

Filing 8

MEMORANDUM OPINION, as set out. An order in accordance will be entered contemporaneously with this Memorandum Opinion. Signed by Judge Sharon Lovelace Blackburn on 3/23/15. (CTS, )

FILED
2015 Mar-23 AM 10:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
BRANDI MELISSA LITTLE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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CASE NO. 1:13-cv-1475-SLB

MEMORANDUM OPINION
I. INTRODUCTION
On April 16, 2002, the claimant, Brandi Melissa Little, applied for disability
insurance benefits under Title II of the Social Security Act. (R. 72.) The Commissioner
denied the claim both initially and on reconsideration. (R. 72-83, 91-95.) The claimant
filed a timely request before an Administrative Law Judge (“ALJ”), and the ALJ held a
hearing on January 7, 2013. (R. 30.)
In a decision dated March 6, 2013, the ALJ found that the claimant was not
disabled as defined by the Social Security Act. (R. 11.) On June 18, 2013, the Appeals
Council denied the claimant’s request for review. Consequently, the ALJ’s decision
became the final decision of the Commissioner of the Social Security Administration
(“Commissioner”). (R. 1-4.) The claimant has exhausted her administrative remedies and
the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. § 405(g).

Ms. Little was 32 years old at the time of the ALJ’s decision, and she has a college
degree. (R. 41.) Her past work experience was as a sales clerk, a production assembler,
an inventory crew manager, and a fuel truck driver in the military. (R. 66-67.) Ms. Little
alleges disability commencing on December 1, 2009, due to post traumatic stress disorder
(“PTSD”) with agoraphobia, depression, and a mild traumatic brain injury (“TBI”). (R.
13.)
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court “is limited to
an inquiry into whether there is substantial evidence to support the findings of the
Commissioner, and whether the correct legal standards were applied.” Wilson v.
Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698,
701 (11th Cir. 1988). The court gives deference to factual findings and reviews questions
of law de novo. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court
“may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that
of the [Commissioner], rather [it] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence.” Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983)) (internal quotations and other citation omitted). “The
Commissioner’s factual findings are conclusive if supported by substantial evidence.”
Wilson, 284 F.3d at 1221 (citing Martin, 894 F.2d at 1529; Allen v. Bowen, 816 F.2d 600,

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602 (11th Cir. 1987)). “Substantial evidence” is “more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal
quotations and citations omitted)
The court reviews the Commissioner’s conclusions of law de novo. Cornelius, 936
F.2d at 1145. “No . . . presumption of validity attaches to the [Commissioner’s]
conclusions of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
III. DISCUSSION
A. THE FIVE-STEP EVALUATION
When evaluating the disability of individuals over the age of 18, the regulations
require the Commissioner to follow a five-step sequential evaluation to determine
whether a claimant is eligible for a period of disability. See 20 C.F.R. §§ 404.1520,
416.920; Bowen v. City of New York, 476 U.S. 467, 470 (1986); see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). “[A]n individual shall be considered to be
disabled for purposes of [determining eligibility for DIB and SSI benefits] if [she] 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 twelve
months.” 42 U.S. C. § 1382c(a)(3)(C)(1); see also 42 U.S.C. § 416(i)(1); 42 U.S.C. §
423(d)(1)(A). The specific steps in the evaluation are as follows:

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1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). If the
claimant is working and that work is substantial gainful activity, the Commissioner will
find that the claimant is not disabled, regardless of the claimant’s medical condition or
her age, education, and work experience. 20 C.F.R. § 404.1520(b); 20 C.F.R. §
416.920(b). “Under the first step, the claimant has the burden to show that she is not
currently engaged in substantial gainful activity.” Reynolds-Buckley v. Commissioner of
Social Sec., 457 F. App’x 862, 863 (11th Cir. 2012).1
The ALJ found that the claimant met the insured status requirements of the Social
Security Act during the period from her alleged onset date of December 1, 2009, through
her date last insured of June 30, 2012. (R. 13.) He also determined that she had not
engaged in substantial gainful activity during that time. (Id.)
2. Severe Impairments
Because the claimant was not engaged in substantial gainful activity, the
Commissioner must next determine whether the claimant suffers from a severe
impairment or combination of impairments that significantly limits the claimant’s
physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c);

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Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be unpublished
unless a majority of the panel decides to publish it. Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2 (emphasis added).

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20 C.F.R. § 416.920(a)(4)(ii), (c). “[A] ‘physical or mental impairment’ is an impairment
that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C. § 423(d)(3); 42 U.S.C. § 1382c(a)(3)(D). The regulations provide: “[I]f 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 and are, therefore, not disabled. We will not consider your age,
education, and work experience.” 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c). “An
impairment can be considered as not severe only if it is a slight abnormality which has
such a minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work, irrespective of age, education, or work experience.” Brady v.
Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R. § 404.1521(a); 20 C.F.R.
§ 416.921(a). A claimant may be found disabled based on a combination of impairments
even though none of the individual impairments alone are disabling. Walker v. Brown,
826 F.2d 996, 1001 (11th Cir. 1985); see also 20 C.F.R. § 404.1523; 20 C.F.R. § 416.923.
A claimant has the burden to show that she has a severe impairment or combination of
impairments. Reynolds-Buckley, 457 F. App’x at 863.
The ALJ found that the claimant’s posttraumatic stress disorder with agoraphobia,
depression, and mild traumatic brain injury are considered “severe” based on the
requirements set forth in the regulations. (R. 13.)

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3. The Listings
Because the ALJ found the claimant has severe impairments, the Commissioner
must next determine whether the claimant’s impairments meet or equal the severity of any
one of the listed impairments. 20 C.F.R. Part 404.1520(a)(4)(iii), (d)-(e). Listed
impairments are so severe that they prevent an individual from performing substantial
gainful activity. 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404, Subpart P,
Appendix 1 [The Listings]. If the claimant’s impairments meet or equal a listing, the
Commissioner must find the claimant disabled, regardless of the claimant’s age,
education, and work experience. 20 C.F.R. § 404.1520(d); 20 C.F.R. § 416.920(d). If
they do not, the Commissioner must next determine the claimant’s residual functional
capacity (“RFC”), and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e),
416.920(e). Residual functional capacity is an assessment, based on all relevant evidence,
of a claimant’s remaining ability to do work despite her impairments. 20 C.F.R. §
404.1545(a). The claimant has the burden of proving that her impairment meets or equals
the criteria contained in one of the Listings. Reynolds-Buckley, 457 F. App’x at 863.
The ALJ found that the claimant’s mental impairments neither meet nor medically
equal a Listing. (R. 13.) Specifically, the ALJ found that the claimant had no marked
restrictions and no episodes of decompensation of extended duration. (R. 13-14.)

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4. Residual Functional Capacity and Past Relevant Work
Because the claimant’s impairments do not meet or equal a Listing, she must prove
that her impairments prevent her from performing her past relevant work. See 20 C.F.R.
§ 404.1520(a)(4)(iv), (f); 20 C.F. R. § 416.920(a)(4)(iv), (f). At step four, the
Commissioner “will first compare [his] assessment of [the claimant’s] residual functional
capacity [“RFC”] with the physical and mental demands of [the claimant’s] past relevant
work. 20 C.F.R. § 404.1560(b); 20 C.F.R. § 416.960(b). “Past relevant work is work that
[the claimant has] done within the past 15 years, that was substantial gainful activity, and
that lasted long enough for [her] to learn to do it. 20 C.F.R. § 404.1560(b)(1); 20 C.F.R.
§ 416.960(b)(1). If the claimant is capable of performing her past relevant work, the
Commissioner will find she is not disabled. 20 C.F.R. § 404.1560(e); 20 C.F.R. §
416.920(e). The claimant bears the burden of establishing that the impairment prevents
her from performing past work. Reynolds-Buckley, 457 F. App’x at 863.
The ALJ did not find the claimant’s statements concerning the intensity,
persistence, and limiting effects of her symptoms to be entirely credible, and he
determined that, prior to June 30, 2012, she had the following residual functional
capacity:
[T]he 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.
She is capable of performing simple tasks for two-hour increments over an
8-hour shift with routine breaks. She can have contact with supervisors, co-

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workers and the general public, but it should be casual and nonconfrontational. Changes should be introduced gradually and infrequently.
(R. 16.) The ALJ specifically found that the claimant could perform her past relevant
work as a Production Assembler. (R. 16-25.) Therefore, the ALJ found that the claimant
was not disabled.
B. MS. LITTLE’S CLAIMS
Ms. Little alleges that the ALJ’s decision should be reversed and benefits awarded
because the ALJ improperly discounted the opinion of her treating psychiatrist, Dr.
Huggins, and the disability rating of the Veterans Administration. (Doc. 4 at 9.)
1. Dr. Huggins
Ms. Little first contends that Dr. Huggins’s opinion as stated in a Mental Residual
Functional Capacity Assessment (“MRFCA”) completed on October 5, 2012, establishes
that she is disabled. (Doc. 4 at 11.) In the MRFCA, Dr. Huggins indicated Ms. Little had
markedly limited ability to do eighteen of twenty listed basic mental work-related
functions. ( R. 530-532.) He also indicated that she met most of the criteria in Listing
12.04 (affective disorders) and 12.06 (anxiety related disorders), which would render her
disabled. (R. 524-532.)
A physician’s testimony is entitled to “substantial or considerable weight unless
‘good cause’ is shown to the contrary.” 20 C.F.R. §§ 404.1527(d), 416.927(d); and
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)
(quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal quotations
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omitted). “Good cause” exists for an ALJ to not give a treating physician’s opinion
substantial weight 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.” Phillips v.
Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also
Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good cause”
existed where the opinion was contradicted by other notations in the physician’s own
record).
The regulations also require that an ALJ consider the opinions of non-examining
physicians. 20 C.F.R. § 404.1527(f). “The weight due to a non-examining physician’s
opinion depends, among other things, on the extent to which it is supported by clinical
findings and is consistent with other evidence. Jarrett v. Commissioner of Social
Security, 422 F. App’x 869, 873 (11th Cir. 2011). The Court must also be aware of the
fact that opinions such as whether a claimant is disabled, the claimant’s residual
functional capacity, and the application of vocational factors “are not medical opinions,
. . . 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.” 20 C.F.R. §§ 404.1527(e), 416.927(d). The
Court is interested in the doctors’ evaluations of the claimant’s “condition and the
medical consequences thereof, not their opinions of the legal consequences of his [or her]

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condition.” Lewis, 125 F.3d at 1440. Such statements by a physician are relevant to the
ALJ’s findings, but they are not determinative, as it is the ALJ who bears the
responsibility for assessing a claimant’s residual functional capacity. See, e.g., 20 C.F.R.
§ 404.1546(c).
Contrary to Ms. Little’s contention, the ALJ correctly applied the law and
articulated multiple reasons for declining to give Dr. Huggins’s opinion controlling
weight. At the outset, the court notes that Dr. Huggins’s finding that claimant’s
impairments meet listings 12.04 for affective disorder and 12.06 for anxiety-related
disorders (Exhibit 7F), amounts to an “opinion[] on issues reserved to the Commissioner
because they are administrative findings that are dispositive of a case,” and the finding is,
therefore, not a medical opinion. 20 C.F.R. §§ 404.1527(e), 416.927(d). The ALJ also
found that Dr. Huggins’s progress notes do not contain a comprehensive psychiatric
evaluation or mental status exam. (R. 13.) Moreover, the ALJ found that Dr. Huggins’s
opinion is not consistent with medical records, which show no psychiatric hospitalizations
and “only conservative mental health treatment in the form of counseling, anger
management classes, and low doses of psychotropic medications (Exhibits 5F, 6F); with
WAIS-IV intelligence testing (Exhibit 6F, page 16); with normal mental status exams
(MSE WNL) at the Vets Center (Exhibits 4F; 5F; 6F, pages 15-16, 70-71); with Doctors
Summerlin’s and Blackmon’s opinions (Exhibits 2A, 4F); and claimant’s activities of
daily living (Exhibit 4E, 4F).” (R. 13.)

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Based on the record before this court, it is evident that the ALJ considered the
factors set forth in the regulations and, consistent with the law of this circuit, articulated
good cause for not giving Dr. Huggins’s opinion substantial weight. Specifically, he
noted:
[Dr. Huggins’s] opinion is simply inconsistent with the overall record. For
example, [he] indicates that the claimant is markedly limited in her ability to
make simple work-related decisions and to sustain an ordinary routine
without special supervision. This is inconsistent with the fact that the
claimant lives alone, carries out her activities of daily living unassisted, and
has custody of a very young child who requires constant supervision. He
indicates that the claimant is markedly limited in her ability to maintain
socially appropriate behavior and to adhere to basic standards of neatness
and cleanliness. And yet, various mental health professionals in this case
have observed the claimant to be pleasant, cooperative, neatly groomed
with adequate hygiene (Exhibits 4F, page 3; Exhibit 6F, pages 15, 70). He
indicates that the claimant is markedly limited in her ability to travel to
unfamiliar places or use public transportation. And yet, in June 2012, the
claimant and her daughter took a air flight [sic] to Idaho to see her
daughter’s paternal grandparents, apparently for three weeks (Exhibit 5 F,
pages 16-18).
(R. 23.) Dr. Huggins’s opinion was conclusory (it consisted of items checked on a
survey), inconsistent with his treatment notes, and not bolstered by the other medical
evidence.2 See Lewis, 125 F.3d at 1440 (“Good cause” exists when opinion is conclusory,
inconsistent with the physician’s own medical records, or not bolstered by the other
evidence); 20 C.F.R. § 416.927(c)(2) (opinion must be “‘well-supported’ by medically

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Ms. Little asserts that the ALJ improperly downplayed a neuropsychological evaluation
performed by Dr. Kristine Lokken, which would have supported Dr. Huggins’s assessment had it
been properly considered. (Doc. 4 at 13.) The court finds such assertion to be unfounded. To the
contrary, the ALJ thoroughly covered Dr. Lokken’s findings in his decision. (R. 20-21.)

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acceptable clinical and laboratory diagnostic techniques,” and “not inconsistent with the
other substantial evidence to receive controlling weight”). Therefore, because this court
does not “reconsider the facts, reevaluate the evidence, or substitute its judgment for that
of the Commissioner,” Martin, 894 F.2d at 1529, the court finds the ALJ had good cause
for declining to give Dr. Huggins’s opinion substantial weight, and committed no
reversible error.
2. The VA Disability Rating
Ms. Little also alleges that the ALJ erred by failing to mention the compensation
and pension exam (“C&P exam”) for post traumatic stress disorder in his opinion, as well
as her 70% service connected disability rating. (Doc. 4 at 13.) The Commissioner
concedes that “the ALJ’s decision did not explain the weight the ALJ gave the VA’s
notation of Plaintiff’s 70% service connected disability,” but argues that the ALJ
implicitly addressed the VA rating by “rel[ying] on the VA records and referenc[ing] the
disability ratings, in addition to the rest of the relevant evidence,” which is adequate in
this Circuit. (Doc. 6 at 18 (citing Kemp v. Astrue, 308 F. App’x 423, 426 (11th Cir.
2009)).
“A VA rating is certainly not binding on the Secretary, but it is evidence that
should be considered and is entitled to great weight.” Rodriguez v. Schweiker, 640 F.2d
682, 686 (5th Cir. 1981) (citing Epps v. Harris, 624 F.2d 1267, 1274 (5th Cir. 1980));
DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972). Because decisions such as

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agency disability determinations may provide insight about a claimant’s impairments, the
Commissioner should evaluate those decisions and explain the consideration given. See
Social Security Ruling (“SSR”) 06-03p; 20 C.F.R. §404.1512(b)(5).
In the instant case, Ms. Little’s 70% service connected disability rating is noted
throughout her medical records. Additionally, a C&P exam was performed on June 12,
2012, by Clinical Psychologist, Karen Clark, in which her disability rating is noted. (R.
60-71.) Dr. Clark also noted:
Veteran’s symptoms are causing moderate to severe impairments in
occupational functioning. Veteran likely would have significant difficulty
working in position that involved even minimal contact with other people.
Furthermore, she likely would have problems tolerating a work environment
that was noisy. She also would likely have difficulty tolerating a position
that involved even mild to moderate levels of stress. She would likely have
difficulty adapting to any changes in the workplace. Her problems with
attention/concentration may also impact her ability to complete tasks
correctly and efficiently.
At this time, veteran’s symptoms likely make it difficult for her to obtain or
maintain gainful employment. However, veteran is not likely permanently
unemployable. Veteran’s symptoms may improve with continued
participation in treatment and she may be able to be employed in the future.
Recommend her employability status be re-evaluated in several years.
(R. 427.) The ALJ makes no mention in his decision of Ms. Little’s service connected
disability rating or Dr. Clark’s assessment. Although the ALJ’s decision is otherwise
thorough and well-reasoned, the court cannot assess the weight given to this evidence
when the decision doesn’t acknowledge the same.

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Although the Commissioner is correct that the ALJ “may implicitly address a VA
disability rating by ‘rely[ing] on the VA records and referenc[ing] the disability ratings, in
addition to the rest of the relevant evidence” (doc. 6 at 18 (citing Kemp, 308 F. App’x at
426)), the court finds this case distinguishable. In Kemp, although the ALJ did not
specifically state the weight given the VA disability rating, “the ALJ continuously refers
to the VA’s evaluations and disability rating throughout the evaluation process,” and
“gave specific reasons for why the VA’s 30% disability rating based on PTSD did not
qualify the condition as a severe impairment under the SSA guidelines.” Kemp, 308 Fed.
App’x at 426. In the instant case, the ALJ did not discuss the weight given to the VA
disability rating. Although the court is not convinced that consideration of the VA rating
or Dr. Clark’s assessment would change the result, it is convinced that failure to consider
the evidence at all is in error. As such, the case is due to be remanded to the
Commissioner for proper consideration of the VA disability determination.
CONCLUSION
For the reasons set forth herein, the Commissioner’s decision is due to be
remanded for consideration of Ms. Little’s VA disability determination. An order in
accordance will be entered contemporaneously with this Memorandum Opinion.
DONE this 23rd day of March, 2015.
SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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