Ferrell v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 7/29/2016. (YMB)

FILED
2016 Jul-29 AM 08:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
DERRICK FERRELL,

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Plaintiff,

vs.
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,

Civil Action Number
1:15-cv-1200-AKK

Defendant.

MEMORANDUM OPINION
Derrick Ferrell (“Ferrell”) brings this action pursuant to Section 405(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
Ferrell filed his application for Title II Disability Insurance Benefits on
September 13, 2012, alleging a disability onset date of December 25, 2010 due to a
traumatic head injury that caused swelling of the head, blurred vision, and swelling
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in the right eye. (R. 118, 142, 145). After the SSA denied his application, Ferrell
requested a hearing before an ALJ. (R. 74–78, 79–80). The ALJ subsequently
denied Ferrell’s claim, (R. 9), which became the final decision of the
Commissioner when the Appeals Council refused to grant review, (R. 1–6). Ferrell
then filed this action pursuant to § 405(g) on July 15, 2015. Doc. 1.
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
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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.
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;
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(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

(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
In performing the five step analysis, the ALJ found that Ferrell had not
engaged in substantial gainful activity since December 25, 2010, and therefore met
Step One. (R. 14). Next, the ALJ found that Ferrell satisfied Step Two because he
suffered from the severe impairments of “status post closed C1 vertebrae fracture,
skill fracture, complicated scalp laceration, and traumatic ptosis of the right eye.”
(Id.). The ALJ then proceeded to the next step and found that Ferrell did not satisfy
Step Three because he “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
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impairments.” (R. 16). Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, he proceeded to Step
Four where he determined that Ferrell has the residual functional capacity (RFC) to
“perform a full range of work at all levels . . . .” (R. 17). However, the ALJ
restricted Ferrell from working “around unprotected heights, dangerous or moving
machinery, ladders ropes or scaffolds . . . [and] job[s] requiring pushing and/or
pulling bilaterally with his upper extremities . . . [and] overhead reaching.” (Id.). In
light of Ferrell’s RFC, the ALJ determined that Ferrell “is unable to perform any
past relevant work.” (R. 21). Lastly, in Step Five, the ALJ considered Ferrell’s age,
education, work experience, and RFC, and determined “there are jobs that exist in
significant numbers in the national economy that [Ferrell] can perform.” (R. 21).
Therefore, the ALJ found that Ferrell “has not been under a disability, as defined in
the Social Security Act, from December 25, 2010.” (R. 22).
V. Analysis
Ferrell’s contention of error centers on his emotional and psychological
impairments. Specifically, Ferrell claims that the ALJ erred by not finding these
impairments “severe” within the regulatory definition and by not considering them
in combination with his physical impairments in the RFC.1 Doc. 11 at 4. Allegedly,

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Ferrell also challenges the Appeals Council’s denial of review. However, except for his general
contention that the Appeals Council erred when it failed to reverse the ALJ, Ferrell provided no
specific argument to support his contentions. See doc. 11 at 4. In light of Ferrell’s failure to raise
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contrary to the evaluation of Dr. Robert A. Storjohann, the ALJ’s RFC “contains
no psychological or emotional limitations or impairments that have anything
whatsoever to do with [Ferrell’s] inability to sustain competitive employment.” Id.
at 3. The record belies Ferrell’s contentions.
A review of the record shows that the ALJ correctly evaluated the medical
evidence regarding Ferrell’s mental status. Specifically, after he determined that
Ferrell suffered from severe physical impairments, the ALJ turned to a detailed
discussion regarding Ferrell’s mental status. (R. 14). The ALJ first looked to
consulting psychologist Dr. Robert G. Summerlin’s psychological examination on
November 7, 2012, (Id.; R. 294), during which Ferrell self-reported his mood as
“like every other day, I reckon. Kinda happy go lucky,” (R. 64; 297). Dr.
Summerlin noted that Ferrell reported “no significant emotional symptoms
secondary to head injury,” that Ferrell’s affect was “broad and appropriate,” and
that Ferrell had only a “slight impairment in social, occupational, or personal
functioning.” (R. 64; 297; 299). Next, the ALJ looked at Dr. Storjohann’s
evaluation which diagnosed Ferrell as having “major depression, single episode,
severe without psychotic features, chronic; generalized anxiety disorder; specific

any other basis for this appeal, he has waived other grounds upon which he might challenge the
ALJ’s decision. See Outlaw v. Barnhart, 197 F. App’x 825, 828 n.3 (11th Cir. 2006) (claimant
waived an issue because he did not elaborate on the claim or provide citation to authority
regarding the claim); N.L.R.B. v. McClain of Georgia, 138 F.3d 1418, 1422 (11th Cir. 1998)
(“Issues raised in a perfunctory manner, without supporting arguments and citation to authorities,
are generally deemed to be waived.”).
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phobia, other type with panic attacks; cognitive disorder; schizoid personality
disorder; paranoid personality disorder; and personality disorder, mixed type.” (R.
15). The ALJ, however, gave little weight to this evaluation because Dr.
Storjohann’s findings and opinions were “wildly inconsistent with the great weight
of the objective medical evidence and with [Ferrell’s] own testimony.” (R. 15). 2 To
support this finding, the ALJ pointed out that although Ferrell told Dr. Storjohann
that he spent most of his time in his bedroom, Ferrell testified at the hearing before
the ALJ that he had recently served a month in jail for failing to pay a speeding
ticket, and that Ferrell’s own reports that he helps with the dishes, sometimes
drives his father to appointments even though he has no license, and walks to the
school bus stop to pick up his brother’s children contradicted Dr. Storjohann’s
findings. (Id.; R. 44). 3 Lastly, the ALJ pointed out that Dr. Storjohann’s diagnoses
were inconsistent with the medical records as a whole, which had a marked
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Drs. Storjohann, Estock, and Summerlin each performed a single consultative evaluation of
Ferrell. “The ALJ does not have to defer to the opinion of a physician who conducted a single
examination, and who was not a treating physician.” Stone v. Comm’r of Soc. Sec., 544 F. App’x
839, 842 (11th Cir. 2013). Still, although the ALJ “may reject the opinion of any physician when
the evidence supports a contrary conclusion,” the ALJ is “required to state with particularity the
weight he gives to different medical opinions and the reasons why.” McCloud v. Barnhart, 166
F. App’x 410, 418–19 (11th Cir. 2006). Finally, the ALJ must consider the impairments alleged
and state “the weight accorded each item of impairment evidence and the reason for his decisions
on such evidence. The ALJ must state specifically the weight accorded each item of evidence
and the reasons for his decision.” Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986).

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The ALJ further noted Ferrell’s self-reported daily activities, which included being able to
“bathe, dress, and groom himself without assistance . . . [and] perform[] household chores,
including cooking, doing the laundry, and simple gardening.” (R. 15). The ALJ also touched on
the fact that Ferrell also did not mention depression as a disability until the hearing and, when
questioned by the ALJ, claimed he did not know that he had symptoms of depression. (R. 50).
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absence of psychiatric complaints, and Ferrell’s own testimony which indicated no
history of mental impairments prior to December 2010. (R. 15).
Finally, the ALJ discussed the review performed by the state psychological
consultant, Dr. Robert Estock, who determined that Ferrell had an organic mental
disorder. (R. 16). However, the ALJ noted that Dr. Estock’s diagnosis was also
inconsistent with the medical record as Ferrell “was not diagnosed with a traumatic
brain injury and there is no follow-up treatment to suggest he has an organic
mental disorder secondary to the injuries he received in the December 2010
accident.” (Id.). Moreover, the ALJ also noted that Dr. Estock admitted to giving
significant weight to third-party evaluations in reaching his diagnosis of organic
mental disorder, and that Dr. Estock ultimately concluded that Ferrell did not have
listing level functional limitations. (Id.; R. 65).
Ultimately, after weighing the evidence of the three consultative
psychologists, the ALJ concluded that the existence of a mental impairment could
not be medically determined. (R. 16). The court finds no error in this finding. In
fact, a careful review of the record shows that the ALJ’s finding that Ferrell did not
suffer from a mental impairment is based on substantial evidence. As the ALJ
pointed out, Dr. Storjohann’s findings—which form the basis for Ferrell’s
contentions of error in this appeal—are “wildly inconsistent” with the record. (R.
15). Therefore, because the ALJ gave specific reasons for discounting Dr.
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Storjohann, as well as Dr. Estock’s evaluations, the court rejects Ferrell’s
arguments that the ALJ erred in omitting them from the RFC.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Ferrell 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 the 29th day of July, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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