Dodd v. Social Security Administration, Commissioner

Filing 11

AMENDED MEMORANDUM OPINION. Signed by Judge R David Proctor on 3/10/2016. (AVC)

FILED
2016 Mar-10 AM 09:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
TIMOTHY MICHAEL DODD,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No.: 1:15-cv-85-RDP

AMENDED MEMORANDUM OPINION1
Plaintiff, Timothy Michael Dodd, brings this action pursuant to Section 205(g) of the Social
Security Act (“the Act”) seeking review of the decision of the Commissioner of Social Security
(“Commissioner”) denying his applications for a period of disability, Disability Insurance Benefits
(“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI. See 42 U.S.C. §§
405(g), 1383(c)(3). For the reasons outlined below, the court finds that the decision of the
Commissioner is due to be affirmed because it is supported by substantial evidence and proper legal
standards were applied.
I.

Proceedings Below
Plaintiff filed his applications for a period of disability, DIB, and SSI on October 11, 2011,

alleging a disability onset date of September 1, 2010. (R. 224). On January 6, 2012, Plaintiff’s
applications were denied, (R. 125-29), and on January 19, 2012, Plaintiff timely requested an
administrative hearing, which was held before an Administrative Law Judge (“ALJ”) on May 7, 2013

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Amended to correct Plaintiff’s last name.

via video. (R. 76-97).

Both Plaintiff and Vocational Expert Linda S. Williams testified at the

hearing. (Id.). Plaintiff was represented by attorney Daniel Brian Smith at the hearing. (Id.)
In the July 13, 2013 decision, the ALJ determined that Plaintiff was not eligible for DIB or
SSI because he was not under a “disability,” as defined by the Act, at any time through the date of
decision. (R. 16-26). Thereafter, Plaintiff requested review of the ALJ decision by the Appeals
Council. (R. 9). After the Appeals Council denied Plaintiff’s request for review on December 9,
2014, (R. 1-5), that decision became the final decision of the Commissioner, and therefore a proper
subject of this court’s appellate review.
At the time of Plaintiff’s alleged onset of disability, he was thirty-nine years old. (R. 13, 82).
He completed high school and attended one year of college. (R. 84, 229). Plaintiff’s past relevant
work included work as a tack welder, a butcher, and materials handler. (R. 94, 264-79). According
to Plaintiff, he has been unable to engage in substantial gainful activity since September 1, 2010, due
to abdominal problems, a bulge on his right side, nerve pain, anxiety, panic attacks, depression, and
difficulty sleeping. (R. 22, 228).
II.

ALJ Decision
Determination of disability under the Social Security Act requires a five-step analysis. See

20 C.F.R. § 404.1 et. seq. First, the Commissioner determines whether the claimant is working
(“Step One”). Second, the Commissioner determines whether the claimant has an impairment which
prevents the performance of basic work activities (“Step Two”). Third, the Commissioner
determines whether claimant’s impairment meets or equals an impairment listed in Appendix 1 of
Part 404 of the Regulations (“Step Three”). Fourth, the Commissioner determines whether the
claimant’s residual functional capacity can meet the physical and mental demands of past work
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(“Step Four”). The claimant’s residual functional capacity consists of what the claimant can do
despite his impairment. Finally, the Commissioner determines whether the claimant’s age,
education, and past work experience prevent the performance of any other work (“Step Five”). In
making a final determination, the Commissioner will use the Medical-Vocational Guidelines in
Appendix 2 of Part 404 of the Regulations when all of the claimant’s vocational factors and the
residual functional capacity are the same as the criteria listed in the Appendix. If the Commissioner
finds that the claimant is disabled or not disabled at any step in this procedure, the Commissioner
will provide no further review of the claim.
The court recognizes that “the ultimate burden of proving disability is on the claimant” and
that the “claimant must establish a prima facie case by demonstrating that he can no longer perform
his former employment.” Freeman v. Schweiker, 681 F.2d 727, 729 (11th Cir. 1982) (other citations
omitted). Once a claimant shows that he can no longer perform his past employment, “the burden
then shifts to the [Commissioner] to establish that the claimant can perform other substantial gainful
employment.” Id.
The ALJ found that Plaintiff meets the insured status requirements of the Act through
December 31, 2015 (R.18, No. 1), and that he has not engaged in substantial gainful activity since
his alleged onset of disability on September 1, 2010. (R.18, No. 2). The ALJ found that, during the
relevant time period, Plaintiff suffered from the medically determinable impairments of degenerating
hematoma in the abdomen and herniated L1 disc, which he characterized as “severe.” (R. 18, No.
3). The ALJ found, however, that Plaintiff’s mild retropulsion at C6 was a non-severe impairment
because it did not cause more than minimal limitation in his ability to perform basic physical work
activities. (R. 19).
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At the second step in the relevant analysis, the Commissioner determines whether the
claimant has a medically determinable impairment, or a combination of impairments, that is severe.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

An impairment or combination of

impairments is severe if it “significantly limits” the claimant’s physical or mental ability to perform
basic work activities. See 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a); SSR
96-3p, 61 Fed. Reg. 34,468, 34,469 (July 2, 1996); Bridges v. Bowen, 815 F.2d 622, 625 (11th Cir.
1987). Examples of basic mental work activities include: understanding, carrying out, and
remembering simple instructions; use of judgment; responding appropriately to supervision,
co-workers, and usual work situations; and dealing with changes in a routine work setting. See 20
C.F.R. §§ 404.1521(b)(3)-(6), 416.921(b)(3)-(6). “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, regardless of age, education, or work
experience.” Bridges, 815 F.2d at 625 (quotations omitted).
As to Plaintiff’s mental impairments, the ALJ found them to be non-severe as well. (R. 20).
Specifically, the ALJ found that claimant’s metal impairments of adjustment disorder and anxiety
related disorder, considered singly and in combination, did not cause more than minimal limitation
in the claimant’s ability to perform basic mental work activities, and are, therefore, not severe. (R.
19). In reaching this conclusion, the ALJ considered the four broad functional areas provided in the
disability regulations for evaluating mental disorders. (R. 19-20). The ALJ found that Plaintiff had
“mild” limitation in activities of daily living, social functioning, and concentration, persistence or
pace, and that Plaintiff had not experienced any episodes of decompensation of extended duration.

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(R. 19-20). Based on these findings, the ALJ concluded that Plaintiff’s mental impairments were
not severe. (R. 20).
At step three, the ALJ determined that Plaintiff did not have an impairment or combination
of impairments that meet or medically equal the criteria of an impairment listed at 20 C.F.R. pt. 404,
subpt. P, app. 1. (R. 20, No. 4). The ALJ specifically considered Listing 1.04A for disorders of the
spine in making this determination. (R. 20).
Based upon his review of the record, the ALJ concluded that Plaintiff retains the residual
functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b)2 with the additional limitations of the following: (1) he can push/pull as much as he can
carry; (2) he is never to climb ramps or stairs; (3) he is never to climb ladders and scaffold; (4) he
is restricted to never kneel or crawl; (5) he should never be exposed to unprotected heights or
moving mechanical parts; (6) he is limited to simple, routine and repetitive tasks; (7) he is limited
to simple work-related decisions; (8) he can occasionally interact with co-workers and with the
public; and (9) he is limited to tolerating few changes in a routine work setting.

(R. 21, No. 5).

Aided by the testimony of a VE, the ALJ found that Plaintiff could not return to his past relevant
work, which is heavy, skilled, and semi-skilled in nature (R. 25, No. 6), although he did determine
there are jobs that exist in significant numbers that Plaintiff can perform, even considering his age,
education, work experience, and RFC. (R. 25, No. 10). Specifically, the ALJ relied on the VE’s
testimony that Plaintiff could perform certain light, unskilled occupations that exist in significant
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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.
“ 20 C.F.R. §§ 404.1567(b), 416.967(b). “Since frequent lifting or carrying requires being on one’s feet up to two-thirds
of a workday, the fully range of light work requires standing or walking, off and on, for a total of approximately 6 hours
of an 8 hour workday.” SSR 83-10, 1983 WL 31251, *6 (1983).

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numbers in the regional and national economy, such as inspector/hand packager, cleaner/
housekeeper, and small products assembler. (R. 26, No. 10). Thus, the ALJ found that Plaintiff was
not under a “disability” at any time during the relevant period. (R. 26, No. 11).
III.

Plaintiff’s Argument for Remand or Reversal
Plaintiff seeks to have the ALJ’s decision, which became the final decision of the

Commissioner following the denial of review by the Appeals Council, reversed, or in the alternative,
remanded for further consideration. (Doc. # 6). Specifically, Plaintiff argues that the ALJ’s decision
is not supported by substantial evidence and improper legal standards were applied because the
“failure of the ALJ to identify the plaintiff’s emotional problems as severe poisoned the remainder
of the ALJ”s decision that a significant number of jobs exist in the national economy that the
plaintiff could perform.” (Doc. #6 at 3.) Plaintiff insists that “[t]his case should be reversed and
remanded so that all established ‘severe’ medical impairments can be considered in the disability
evaluation process.” (Id.). Plaintiff also argues (although not explicitly) that the ALJ improperly
gave little weight to his treating psychiatrist/psychologist Dr. Eddie Huggins, while giving greater
weight to the non-treating physician, Dr. Robert Estock. (Id. at 7-12).
IV.

Standard of Review
The only issues before this court are whether the record reveals 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 correct legal standards were applied, 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 findings are conclusive if supported by
“substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court
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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, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations
omitted). If supported by substantial evidence, the Commissioner’s factual findings must be
affirmed even if the evidence preponderates against the Commissioner’s findings. See Martin, 894
F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s findings is limited in
scope, the court also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at
701.
V.

Discussion
As discussed above, Plaintiff contends that the ALJ erred in finding that his mental

impairments were non-severe. Although not stating it in these terms, Plaintiff also argues that the
ALJ improperly gave little weight to his treating psychiatrist/psychologist Dr. Eddie Huggins, while
giving greater weight to the non-treating physician, Dr. Robert Estock. The court disagrees with both
assertions and addresses them in reverse order below.
A.

The ALJ properly analyzed Plaintiff’s mental conditions and applied the correct
legal standards with regard to the weight given to the opinions of Dr. Estock
and Dr. Huggins.

The weight properly afforded to a medical opinion regarding the nature and severity of a
plaintiff's impairments depends upon a number of factors, including the source's examining and
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treating relationship with the plaintiff, the evidence presented to support the opinion, the consistency
of the opinion with the record as a whole, and the speciality of the medical source. See 20 C.F.R.
§ 416.927(d). The opinion of a physician, even a treating physician, may properly be discounted for
good cause. Crawford v. Commissioner, 363 F.3d 1155, 1159-60 (11th Cir. 2004). Indeed, although
a treating physician's opinion is typically given "substantial or considerable weight," that opinion
may deserve less weight under the following circumstances: "(1) [the] treating physician's opinion
was not bolstered by the evidence; (2) [the] evidence supported a contrary finding; or (3) [the]
treating physician's opinion was conclusory or inconsistent with the doctor's own medical records."
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2003)(affirming the ALJ's decision to give little
weight to a treating physician's opinion due to several specific contradictions between the physician's
opinion and other evidence of record). Nonetheless, if the ALJ has failed to articulate "good cause"
for assigning less weight to a treating physicians's opinion, reversible error has occurred. Lewis, 125
F.3d at 1440.
In this case, the ALJ articulated legitimate reasons (which meet the good cause standard) for
discounting the opinion expressed by Dr. Huggins, and properly gave great weight to the opinion of
Dr. Estock. The ALJ first considered the assessment of Dr. Robert Estock, a licensed psychiatrist
and state agency psychological consultant.3 (R. 19, 105-06). In January 2012, Dr. Estock reviewed
the medical evidence then of record and applied the “psychiatric review technique,” the process set
forth in the regulations for assessing mental disorders. (R. 105-06). See 20 C.F.R. pt. 404, subpt.
P, app. 1 § 12.00. Dr. Estock concluded that Plaintiff had medically determinable impairments for

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Non-examining consultants, such as Dr. Estock, are highly-qualified physicians who are also experts in Social
Security disability evaluation, according to the regulations. See 20 C.F.R. §§ 404.1527(e)(2)(I), 416.927(e)(2)(I); SSR
96-6p, 61 Fed. Reg. 34,466-01, 34,467 (July 2, 1996).

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his anxiety and depression, see 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04 (affective disorders),
12.06 (anxiety disorders), but that they were not severe in light of the four broad functional areas4
known as the “Paragraph B” criteria. (R. 105-06). Dr. Estock opined that Plaintiff had mild
limitation in the first three functional areas and no episodes of decompensation. (R. 106).
Specifically, Dr. Estock noted that Plaintiff had no history of formal mental health treatment or
hospitalizations. (R. 105-06). Plaintiff was on Ambien for sleep problems and Xanax for anxiety and
had reported that his mental problems were almost completely due to his physical problems and
associated issues. (Id.) Accordingly, Dr. Estock concluded Plaintiff’s mental impairments were not
severe. (R. 106).
The ALJ also considered the medical evidence from the time period after Dr. Estock’s
review. The ALJ noted that the mental health treatment evidence was from two very recent visits
to a psychiatrist or psychologist on February 6, 2013 and March 14, 2013. (R. 546-51). Although
the treatment notes are unsigned and do not identify the medical provider, Plaintiff testified that he
was being seen by Dr. Eddie Huggins, Jr. (R. 86).
The notes from the February visit stated that Plaintiff complained of anxiety, shortness of
breath, lack of sleep, crying spells, poor concentration, and sadness due to quality of life. (R. 54647). He reported he had never been hospitalized for psychiatric reasons. (R. 547). The treatment
note appears to indicate that at some prior time Plaintiff took anti-depressants, but there is no record
of those medications. (R. 547). Dr. Huggins prescribed Prozac, Zyprexa, and Xanax. (R. 546).

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The four broad areas are: (1) restriction of activities of daily living; (2) difficulties in maintaining social functioning;
(3) difficulties in maintaining concentration, persistence, or pace; and (4) repeated episodes of decompensation, each
of extended duration.

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At the visit in March 2013, Dr. Huggins noted Plaintiff’s thought processes were mostly
normal and that he “ruminate[d] on his physical decline.” (R. 549). Dr. Huggins further noted
Plaintiff’s judgment and insight were fair, he was oriented times four, his memory was good, his
attention/concentration was intact, his language was adequate, his fund of knowledge was intact, but
that his mood and affect was depressed/tearful. (R. 550). Dr. Huggins diagnosed Plaintiff with
depression and assigned a global assessment of functioning (GAF) score of 32.5 (R. 549-50).
Additionally, he completed a questionnaire regarding Plaintiff’s functioning ability and opined that
there was not a job Plaintiff could perform for a regular workweek due to his depression and anxiety.
(R. 553-555).
The ALJ gave greater weight to the opinion of Dr. Estock because it was supported by the
medical evidence of record, as discussed in detail above. (R. 19); see also 20 C.F.R. 404.1527(c)(3),
(4) & (e)(2)(ii), 416.927(c)(3), (4) (e)(2)(ii); Crawford, 363 F.3d at 1158. In contrast, the ALJ gave
little weight to the opinion of Dr. Huggins because (1) he had only recently started treating Plaintiff,
(2) he had only seen Plaintiff on two occasions, and (3) he had only seen Dr. Huggins once a month
(at best). (R. 19). The regulations specifically provide that the length of the treatment relationship
and the frequency of the evaluations are factors to be considered when evaluating opinion evidence.
See 20 C.F.R. §§ 404.1527(c)(2)(I) & 416.927(c)(2)(1). In addition, the ALJ discounted the opinion
of Dr. Huggins that Plaintiff could not work because there was no other mental health record to
support it. The Eleventh Circuit has consistently concluded that “good cause” exists to discount a
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The court notes that the Commissioner has declined to endorse the GAF scale for use in the disability programs and
has stated that the GAF scale “does not have a direct correlation to the severity requirements in our mental disorders
listings.” 65 Fed. Red. 50, 746, 50, 764-65 (Aug. 21, 2000). Additionally, in its most recent publication, the American
Psychiatric Association abandoned the use of GAF scores “for several reasons, including its conceptual lack of clarity
. . . and questionable psychometrics in routine practice.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 16 (5th ed. 2013).

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treating physician’s opinion where the opinion is not bolstered by the other medical evidence. See
Crawford, 363 F.3d at 1159-60; Phillips v. Barnhart, 357 F. 3d 1232, 1240-41 (11th Cir. 2004);
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). For these reasons, the ALJ applied the
proper legals standard when he assigned little weight to the opinion of Dr. Huggins and substantial
evidence supports his analysis.
B.

The ALJ Properly Considered Plaintiff’s Mental Impairments under the Four
Broad Areas Used to Evaluate Mental Disorders.

Listing 12.04 covers affective disorders, which are defined as disorders “[c]haracterized by
a disturbance of mood, accompanied by a full or partial manic or depressive syndrome.” 20 C.F.R.
§ Pt. 404, Subpt. P, App. 1. A claimant can show the required level of severity by satisfying either
Paragraphs A and B or Paragraph C alone. Id. Paragraphs A and B are at issue here6 and state as
follows:
A. Medically documented persistence, either continuous or intermittent, of one of the
following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities;
Appetite disturbance with change in weight;
Sleep disturbance;
Psychomotor agitation or retardation;
Decreased energy;
f. Feelings of guilt or worthlessness;
g. Difficulty concentrating or thinking;
h. Thoughts of suicide; or
I. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity;
b. Pressure of speech;
c. Flight of ideas;

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Although the ALJ specifically found that “there was no evidence that establish the presence of the “C” criteria,”
(R. 19), Plaintiff does not discuss this finding in his argument to the court.

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d. Inflated self-esteem;
e. Decreased need for sleep;
f. Easy distractibility;
g. Involvement in activities that have a high probability of painful consequences
which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive syndromes (and currently
characterized by either or both syndromes);
and
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living;
2. Marked difficulties in maintaining social functioning;
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
Id. (emphasis added).
The ALJ found that Plaintiff's mental impairment was not severe enough to meet the criteria
of Paragraph B. (R. 19-20). This conclusion followed from his findings that (1) Plaintiff had only
“mild limitations” in activities of daily living, maintaining social function, and sustaining
concentration, persistence or pace, and (2) Plaintiff had experienced no episodes of decompensation
of extended duration. (R. 19-20). The court does not find any errors in these findings.
The ALJ adequately explained his assessment of each functional area and the reasoning
behind his conclusions in each area. Under the area of activities of daily living, the ALJ found that
Plaintiff was “capable of initiating and participating in activities of daily living such as cooking
simple meals, shop for food and light chores independent of supervision or direction,” and his
performance of simple routine tasks is appropriate, effective and sustainable.” (R. 19-20). As for
social functioning, the ALJ found that Plaintiff was able to initiate social contacts, demonstrate
cooperative behavior, but had “some difficulty communicating clearly.” (R. 20). In the third

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functional area of concentration, persistence, or pace, the ALJ found Plaintiff “can sustain focused
attention and concentration sufficiently long to permit the timely and appropriate completion of tasks
commonly found in routine and repetitive tasks.” (R. 20). Finally, with respect to the fourth area,
the ALJ found Plaintiff had not experienced any episodes of decompensation, noting that “[h]is
record does not indicate significant, sustained loss of adaptive functioning.” (R. 20).
Because substantial evidence supports a finding that Plaintiff’s mental impairments caused
no more than mild limitation in any of the first three functional areas, and no episodes of
decompensation in the fourth area, the ALJ properly concluded his mental impairments were
non-severe. See 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1) (stating that an impairment is
considered not severe if the degree of limitation in these functional areas is “none” or “mild”);
Garrard v. Colvin, 2014 WL 6972120, at *4 (N.D. Ala. Dec. 9, 2014) (concluding ALJ’s finding that
claimant’s mental impairment was not severe followed from his findings that claimant had mild
restrictions in two areas, moderate restriction in a third area, and no episodes of decompensation).
As such, substantial evidence also supports the ALJ’s finding that Plaintiff’s mental impairments
were non-severe.7
VI.

Conclusion
For the reasons stated above, the Commissioner’s final decision is due to be affirmed. A

separate order will be entered.

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The court notes that although the ALJ found Plaintiff’s mental impairments non-severe, she still made allowances
for them in her RFC assessment. (R. 20). Specifically, the ALJ restricted Plaintiff to simple, routine, and repetitive
tasks, simple work-related decision, and occasional interaction with co-workers and the public. (R. 20-21). The ALJ
further limited Plaintiff to tolerating few changes in his work routine. (R. 21). These limitations to his RFC undermine
Plaintiff’s overall argument for reversal.

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DONE and ORDERED this

10th

day of March, 2016.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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