Dean v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/16/2015. (YMB)

FILED
2015 Sep-16 AM 11:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
BILLY JAMES DEAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
1:14-cv-01691-AKK

MEMORANDUM OPINION
Plaintiff Billy James Dean brings this action pursuant to Section 205(g) of
the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the final
adverse decision of the Commissioner of the Social Security Administration
(“SSA”). This court finds that the Administrative Law Judge (“ALJ”) applied the
correct legal standard and that his decision—which has become the decision of the
Commissioner—is supported by substantial evidence. Therefore, the court affirms
the decision denying benefits.
I. Procedural History
Dean filed an application for Title II disability insurance benefits on March

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9, 2011, (R. 134–35), alleging a disability onset date of May 15, 2005, (R. 134),
due to degenerative joint disease in both shoulders, a neck condition, L-4–L-5
spondylosis, bone spurs in both heels, bilateral hearing loss, bilateral tinnitus,
sinusitis, sleep apnea, hypertension, residuals of an anal tear, diabetic neuropathy,
hyperlipidemia, residual scars with fever from smallpox, major depressive disorder
with anxiety, diabetes mellitus type II, carpal tunnel syndrome in both hands, and
chronic headaches, (R. 201). Dean was forty-three years old on his alleged onset
date and forty-nine years old on his date last insured, (R. 56), had a high-school
education, (R. 24), and had past light work as a janitor, medium work as a cook,
heavy work as a material handler, and medium work as a truck driver, (R. 51).
After the SSA denied his application, both initially on April 21, 2011, (R. 67), and
upon reconsideration on July 14, 2011, (R. 77), Dean requested a hearing, (R.
101–05). Dean did not engage in substantial gainful activity during the period
from his alleged onset date through his date last insured, (R. 14).
The ALJ denied Dean’s claim on January 7, 2013, (R. 9–30), which became
the final decision of the Commissioner when the Appeals Council refused to grant
review on July 3, 2014, (R. 1–5). Dean then filed this action pursuant to section
1631 of the Act, 42 U.S.C. § 1383(c)(3). Doc. 1.

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II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
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See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability 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. § 423(d)(1)(A); 42 U.S.C. § 416(i)(I)(A). A physical or
mental impairment is “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and
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(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
As a preliminary matter, the ALJ determined that Dean last met the insured
status requirements of the Act on June 30, 2011, (R. 14). Then, in performing the
Five Step sequential analysis, the ALJ initially determined that Dean had not
engaged in substantial gainful activity during the period from his alleged onset
date through his date last insured and therefore met Step One, (R. 14). Next, the
ALJ acknowledged that Dean’s severe impairments of lumbar degenerative disc
disease, bone spurs, in both heels, diabetes, carpal tunnel syndrome, and obesity
met Step Two. Id. However, the ALJ concluded that Dean’s bilateral shoulder
problems, cervical degenerative disc disease, bilateral hearing loss and tinnitus,

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diminished sight, sleep apnea, residuals of small pox, migraine headaches, anxiety,
depression, and anger management issues were non-severe impairments, (R. 18).
The ALJ then proceeded to the next step and found that, through the date last
insured, Dean did not satisfy Step Three since he “did not have an impairment or
combination of impairments that met or medically equals one of the listed
impairments,” (R. 19). Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to
Step Four, where he determined that:
through the date last insured, [Dean] had the residual functional capacity . . .
to perform sedentary work, as defined in 20 CFR404.1567(a) that requires
no more than occasional climbing ladders, ropes, or scaffolds; no more than
frequent balancing, stooping, kneeling, crouching, crawling, or climbing
ramps and stairs; and no more than frequent handling or fingering with the
right wrist. From a mental standpoint,[Dean] is precluded from public
contact or more than occasional contact with co-workers and supervisors,
and can adapt to infrequent workplace changes that are gradually
introduced.
(R. 19). The ALJ then noted that “[t]ransferability of job skills is not material to
the determination of disability because using the Medical-Vocation Rules as a
framework supports a finding that [Dean] is ‘not disabled,’ whether or not the
claimant has transferable job skills,” (R. 24) (citing S.S.R. 82-41 and 20 C.F.R.
Part 404, Subpart P, Appendix 2). Lastly, in Step Five, the ALJ considered Dean’s
age, education, work experience, and residual functional capacity (“RFC”), and
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determined, based on the Medical Vocational Guidelines found in 20 C.F.R. Part
404, Subpart P, Appendix 2, sections 201.28 and 201.21 and on the testimony of a
vocational expert, that “there were jobs that existed in significant numbers in the
national economy that [Dean] could have performed.” Id. Because the ALJ
answered Step Five in the negative, he determined that Dean was not disabled
between the alleged onset date and the date last insured (R. 25).
V. Analysis
The court turns now to Dean’s contentions that the ALJ erred (1) in his
assessment of Dean’s mental impairments, doc. 9 at 4–8, and (2) by failing to
consider whether he should have assessed Dean as a person approaching advanced
age, id. at 8–12. For the reasons stated below, the court finds that the ALJ applied
the correct legal standard and his opinion is supported by substantial evidence.
A.

Dean’s mental impairments
As an initial matter, the court notes that Dean’s primary contention

regarding the ALJ’s assessment of his mental impairments is that the ALJ erred by
concluding that Dean’s depression was a non-severe impairment. Id. at 4. This
argument is a nonstarter. “Even if the ALJ erred in not indicating whether [Dean’s
depression] was a severe impairment, the error was harmless because the ALJ
concluded that [Dean] had a severe impairment[,] and that finding is all that step
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two requires.” Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 824–25 (11th Cir.
2010) (emphasis added); see also Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.
1987) (emphasis added) (“the finding of any severe impairment” is enough to
satisfy step two). As the court previously stated, the ALJ found that Dean’s lumbar
degenerative disc disease, bone spurs, in both heels, diabetes, carpal tunnel
syndrome, and obesity were severe impairments that met Step Two. Consequently,
the ALJ did not err by concluding that Dean’s depression was a non-severe
impairment.
More generally, Dean seems to contend that the ALJ erred by failing to
conclude that his mental health impairments have rendered him unable to work.
This argument fails, however, because substantial evidence supports the ALJ’s
conclusion that Dean’s mental impairments were non-severe. First, although Dean
points to a handful of medical records that he claims support his contentions
regarding the severity of his mental impairments, see doc. 9 at 6–7, he fails to
account for the voluminous treatment records1 indicating that he responded well to

1

The court notes, as did the ALJ, that Dean underwent brief psychiatric hospitalization in
December 2010, (R. 16) (citing (R. 536–44)). However, again, as the ALJ noted, the
hospitalization was “pursuant to an unfortunate confluence of transient psychological stressors
that included his wife’s request for divorce, his son’s incarceration for child molestation, and his
mother-in-law’s further incapacitation by stroke.” Id. Dean responded well to conservative
treatment, id., the facility discharged him four days after his intake, id, and the following month
he reported his depression had improved and displayed appropriate mood and affect, (R. 603).
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“conservative treatment with commonly prescribed psychotropic agents,” (R. 16).
In particular, the ALJ noted that Dean’s
mental status exams are routinely unremarkable for clinical signs consistent
with [Dean’s] dire allegations, as attending medical personnel routinely
document his “alert, cooperative and pleasant” demeanor; “talkative”
interaction; “clean and neat appearance”; “appropriate” mood; congruent
affect; “good fund of knowledge”; effective memory and recall; “good” eye
contact; full orientation; sound judgment and insight; “average”
intelligence; “spontaneous and coherent speech”; and lack of hallucinations,
delusions, obsessions, compulsions, paranoia, flashbacks, or
suicidal/homicidal ideations.
Id. (quoting (R. 320, 346–47, 352, 354, 382, 396, 405, 478, 497, 541, 563, 586,
603, 732, 806, 824, 1194, 1227, 1313, 1429, 1444, 1458, 1477, 1493, 1501)). The
ALJ also noted that Dean’s counseling records frequently reflected “assigned
Global Assessment of Functioning Scale . . . scores between 60 and 70[,]
commensurate with predominately mild symptomatology and attendant
limitations.” Id. (citing (R. 347, 352, 471–72, 487, 799, 814, 830, 836, 1203)).
Critically, as the ALJ noted, treating physician D. Shawn Surrat “reported a lack of
‘any limitations in functioning secondary to [Dean’s] mental condition.’” Id.
(quoting (R. 322)). Reiterating its earlier explanation of the standard of review in
the present matter, the court must affirm the ALJ’s decision if it is supported by

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substantial evidence.2 42 U.S.C. § 405(g). This is not a stringent standard;
substantial evidence falls somewhere between a scintilla and a preponderance of
evidence, and, if supported by substantial evidence, the court must affirm the
Commissioner’s factual findings even if the preponderance of the evidence is
against the Commissioner’s findings. Martin, 894 F.2d at 1529. The court finds
that the evidence relied on by the ALJ more than qualifies as substantial evidence
supporting his conclusion that Dean’s mental health impairments are non-severe.
Second, in addition to examining Dean’s medical records, the ALJ also
assessed the severity of Dean’s mental impairments pursuant to the disability
regulations for evaluating mental disorders, which are colloquially referred to as
the “paragraph B” criteria, (R. 17–19). The SSA has “identified four broad
functional areas in which [it] will rate the degree of [a claimant’s] functional
limitation: Activities of daily living; social functioning; concentration, persistence,
or pace; and episodes of decompensation.” 20 C.F.R. 404.1520a(c)(3). It rates “the
degree of limitation in the first three functional areas . . . us[ing] the following
five-point scale: None, mild, moderate, marked, and extreme.” 20 C.F.R.
404.1520a(c)(4). “If [the SSA] rate[s] the degree of [a claimant’s] limitation in the

2

Application of incorrect legal standards is also grounds for remand, see Lamb, 847 F.2d
at 701, but Dean does not appear to contend that the ALJ applied incorrect legal standards when
evaluating Dean’s mental impairments.
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first three functional areas as “none” or “mild” and “none” in the fourth area, [it]
will generally conclude that [the claimant’s] impairment is not severe . . . .” 20
C.F.R. 404.1520a(d)(1).
The ALJ concluded that Dean had “only mild limitations with activities of
daily living, social functioning, concentration, persistence, and pace,” which,
coupled with the lack of any allegations that Dean suffered from periods of
decompensation, supported his conclusion that Dean’s mental impairments were
not severe, (R. 18). In reaching this conclusion, the ALJ relied on evidence
derived from a variety of sources. Chiefly, he noted that Dean “described3 a
largely independent married lifestyle . . . populated with an array of conventional
daily, social, and cognitive activities that confound more than mild limitations,”
(R. 17), including:
helping care for his blind, infirmed mother-in-law, “cooking meals, washing
clothes, and doing any house cleaning[,]” assisting with the care of the

3

The ALJ relied on a functional report Dean prepared in connection with a previous
unsuccessful disability application, (R. 166–74), rather than the functional report Dean prepared
in connection with the disability application at issue here, (R. 213–23), “because there is no
correspondent evidence in the objective record to justify either the compromised ability to
manage basic personal care and administer medication without assistance or the capacity to finish
things started and follow instruction[, n]or is this progressive decline consistent with the
claimant’s failure to identfy related and worsening symtomatology during a routing and
intervening status update in the disability application process,” (R. 17–18 (citing R. 239)). The
ALJ concluded that “answers in the second Function Report arguably represent less credible
allegations made to increase the likelihood of approval following his claim’s early denial,” (R.
18). Dean does not contend that the ALJ erred in relying on the earlier functional report.
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family’s pet dog[,] performing a full range of daily personal care and
hygiene . . . as well as taking prescribed medication, getting to appointed
places, and doing chores, all without required reminders[,] preparing at least
simple meals using common kitchen appliances like a microwave or
conventional oven to cook frozen foods[,] getting out of the house . . . “2 or
3 times a day[,]” driving [,] grocery shopping[,] paying bills[,] counting
change[,] managing a bank account[,] using a checkbook or money orders[,]
watching television “from the time he gets up [until] he goes to bed[,]”
playing cards—especially “Rummy”—and reading for diversion[,] getting
along with family, friends, neighbors, authority figures and previous coworkers[,] with “no problems[,]” attending church[,] exhibiting “ok”-to“good” abilities handling stress and changes in routine[,] managing public
welfare benefits (i.e. food stamps) without a payee[,] and doing common
household duties like “laundry, washing dishes, dusting furniture,” and
vacuuming.
Id. (citing (R. 164, 167–173, 177–182, 554, 630, 801)). The ALJ also noted that
Dean’s wife “averred that her husband’s interpersonal skills and ability to handle
money had not been impaired by his alleged illness, injuries, or conditions,” id.
(citing R. 180–81), and that “[d]espite allegedly severe problems with
attentiveness and perseverance, [Dean] exhibited no difficulty with the accurate
and detailed completion of considerable disability application paperwork, and I
observed him to be well acclimated, focused and responsive throughout the
hearing, as well as an effective personal and medical historian,”4 (R. 18). The ALJ
4

“In the Eleventh Circuit, it is not appropriate for the Administrative Law Judge, who is
not a medical expert, subjectively to arrive at an index of traits that he expects the claimant to
manifest at the hearing, and then to deny the claim when such traits are not observed.” Freeman
v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982). The ALJ’s observation here is not the
quintessential impermissible sit and squirm jurisprudence because it is consistent with Dean’s
wife’s testimony and the medical evidence. Moreover, the ALJ did not rely exclusively on his
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acknowledged that Dean received treatment for anxiety and Dean’s contentions
regarding his struggles with anger management, but concluded that the
conservative nature of the former and “modest medical history” of the later
compelled a finding that Dean’s mental impairments produce only mild limitations
with social functioning. Id. In reaching this conclusion, the ALJ noted that it
comparted with a Psychiatric Review Technique (“PRT”) analysis performed by
agency medical consultant Shelby Gennett, Ph.D, who, like the ALJ, concluded
that Dean’s mental impairments produce a mild degree of limitation with regard to
restriction of activities of daily living, difficulties in maintaining social
functioning, and difficulties in maintaining concentration, persistence, or pace. Id;
(R. 333).
Dean contends that the ALJ erred in discounting a second PRT analysis
performed by George Grubbs, Psy.D., doc. 9 at 5, in which Dr. Grubbs concluded
Dean’s mental impairments produced a moderate degree of limitation with regard
to restriction of activities of daily living, mild difficulties in maintaining
concentration, persistence, or pace, and no difficulties in maintaining social
functioning, (R. 1026), presumably because Dr. Grubbs’ conclusion that Dean’s
mental impairments produced a moderate degree of limitation with regard to

personal observations in denying Dean’s claim.
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restriction of activities of daily living would preclude a finding that his mental
impairments are non-severe pursuant to 20 C.F.R. 404.1520a(d)(1). However, the
ALJ discounted Dr. Grubbs’ finding because they were contrary to the significant
amount of evidence indicating that Dean participates in a wide variety of
activities, which the court described above. An ALJ may reject the opinion of even
a treating physician, let alone a non-examining consultant like Dr. Grubbs, if the
opinion runs contrary to the weight of the evidence. Johnson v. Barnhart, 138 F.
App’x 266, 270 (11th Cir. 2005). Moreover, the opinion of a non-examining
physician “is entitled to little weight and taken alone does not constitute
substantial evidence to support an administrative decision.” Swindle v. Sullivan,
914 F.2d 222, 226 n. 3 (11th Cir. 1990) (citing Broughton v. Heckler, 776 F.2d
960, 962 (11th Cir. 1985)). As such, the ALJ correctly discounted Dr. Grubbs’
findings.
In sum, because the ALJ determined that at least one of Dean’s other
impairments was severe, and because substantial evidence supports his conclusion
to the contrary regarding Dean’s mental impairments, the ALJ did not err in
concluding that Dean’s mental impairments were not severe.
B. Dean’s Age Classification
Dean contends that the ALJ applied an incorrect legal standard by failing to
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consider whether he should be classified as a person closely approaching advanced
age, i.e. older than fifty, rather than a younger person,5 because Dean was 101 days
short of his fiftieth birthday on his date last insured. Doc. 9 at 11. In support of his
position, Dean notes that, per the regulations:
[The SSA] will not apply the age categories mechanically in a borderline
situation. If [a claimant is] within a few days to a few months of reaching an
older age category, and using the older age category would result in a
determination or decision that [the claimant is] disabled, [the SSA] will
consider whether to use the older age category after evaluating the overall
impact of all the factors of [the claimant’s] case.
20 C.F.R. § 404.1563(b);6 see also Garner v. Heckler, 735 F.2d 1291, 1295 (11th
Cir. 1984) (holding that the ALJ erred by mechanically applying the age criteria of
the Grids). Unfortunately for Dean, here, the ALJ did not mechanically apply the
age criteria of the Grids. While he did use the Grids as a guideline, he also relied

5

When a claimant is less than fifty years old, the SSA generally does not consider
whether the claimant’s age will seriously affect his ability to adjust to other work, 20. C.F.R.
404.1563(c), but if a claimant is “closely approaching advanced age (age 50–54), [the SSA] will
consider that [the claimant’s] age along with a severe impairment(s) and limited work experience
may seriously affect [the claimant’s] ability to adjust to other work,” 20. C.F.R. 404.1563(d).
6

Dean contends that language in the SSA’s Program Operations Manual System
(POMS), which provides guidance to Administrate Law Judges, dictates that an ALJ commits
legal error by failing to consider whether to use an older age category in a borderline situation.
Doc. 9 at 8. In light of the absence of much in the way of explanation by Dean, it appears to the
court that the language in question is meant to clarify the purpose of a test used to identify
borderline situations rather than indicate that consideration of whether to use an older age
category in those situations is mandatory, see POMS DI 25015.005, but at any rate, “the POMS
does not have the force of law.” See Wells v. Comm’r of Soc. Sec., 430 F. App’x 785, 786 (11th
Cir. 2011) (citing Wash. State Dep’t of Soc. and Health Servs. v. Keffeler, 537 U.S. 371, 385
(2003); Stroup v. Barnhart, 327 F.3d 1258, 1262 (11th Cir. 2003)).
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upon the testimony of the VE. Consequently, he did not err by failing to consider
whether Dean should be classified as a person closely approaching advanced age.
See Miller v. Comm’r of Soc. Sec., 241 F. App’x 631, 635–36 (11th Cir. 2007)
(holding that the ALJ did not err by mechanically applying the age criteria of the
grids when the ALJ relied upon the testimony of a VE and failed to explicitly
consider whether to apply an older age category to the plaintiff).
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Dean is not disabled is supported by substantial evidence and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is affirmed. A separate order in accordance with the
memorandum of decision will be entered.
Done this 16th day of September, 2015.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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