Miller v. Social Security Administration, Commissioner
MEMORANDUM OPINION (MSN)
2013 Dec-06 AM 10:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BERNARD MILLER, JR.,
CAROLYN W. COLVIN,
Commissioner of Social Security,
MEMORANDUM OF OPINION
The plaintiff, Bernard Miller, Jr., appeals from the decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying his
application for Supplemental Security Income (“SSI”), a period of disability, and
Disability Insurance Benefits (“DIB”). Mr. Miller timely pursued and exhausted his
administrative remedies and the decision of the Commissioner is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Mr. Miller was fifty years old at the time of the Administrative Law Judge’s
(“ALJ’s”) decision, he has a tenth grade education, and has no past relevant work.
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(Tr. at 38, 58–59, 91, 162, 180.) Mr. Miller claims that he became disabled on March
1, 2007, due to depression, poor memory, a bi-polar disorder, and problems with his
neck, arm, and back. (Tr. at 166.)
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§
404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The
first step requires a determination of whether the claimant is “doing substantial
gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he or she is, the
claimant is not disabled and the evaluation stops. Id. If he or she is not, the
Commissioner next considers the effect of all of the physical and mental impairments
combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments
must be severe and must meet the durational requirements before a claimant will be
found to be disabled. Id. The decision depends on the medical evidence in the record.
See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant’s impairments
are not severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
Otherwise, the analysis continues to step three, which is a determination of whether
the claimant’s impairments meet or equal the severity of an impairment listed in 20
C.F.R. pt. 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii),
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416.920(a)(4)(iii). If the claimant’s impairments fall within this category, he or she
will be found disabled without further consideration. Id. If they do not, a
determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step five
requires the court to consider the claimant’s RFC, as well as the claimant’s age,
education, and past work experience in order to determine if he or she can do other
work. 20 C.F.R. §§ 404.1520(a)(4)(v) 416.920(a)(4)(v). If the claimant can do other
work, the claimant is not disabled. Id.
Applying the sequential evaluation process, the ALJ found that Mr. Miller
meets the nondisability requirements for a period of disability and DIB, and was
insured through September 20, 2008. (Tr. at 28.) He further determined that Mr.
Miller has not engaged in substantial gainful activity since the alleged onset of his
disability. (Id.) According to the ALJ, Plaintiff’s “status post hernia repair, status post
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upper back contusion, scoliotic deformity at C3–4, chronic obstructive pulmonary
disease, status post left forearm fracture, status post blunt abdominal trauma,
antisocial personality, and polysubstance abuse” are considered “severe” based on
the requirements set forth in the regulations. (Id.) Further, he found that all of Mr.
Miller’s impairments, including the substance use disorder, meet section 12.09 of 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d) and 416.920(d)).
(Tr. at 28, 30.) However, the ALJ found that if Plaintiff stopped his substance abuse,
Plaintiff would not have an impairment or combination of impairments that meets or
medically equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. at 31–32.) Thus, the ALJ proceeded to the next step of the evaluation
and determined that if Mr. Miller stopped the substance abuse, he would have the
residual functional capacity (“RFC”) to perform:
light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b) except that he has no greater than moderate
restriction in the following areas: understanding, carrying
out, and remembering simple instructions; using judgment;
responding appropriately to supervision, co-workers and
usual work situations; dealing with changes in a routine
work setting; and responding to customary work pressures.
He should have no exposure to marked changes in
temperature and humidity; and no exposure to dust, fumes,
(Tr. at 32.)
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According to the ALJ, Plaintiff has no past relevant work under 20 C.F.R. §§
404.1565 and 416.965, even though he engaged in work activity during the relevant
period, because his earnings did not exceed the threshold for substantial gainful
activity. (Tr. at 35.) The ALJ further noted that Plaintiff is a “younger individual,”
and has a “limited education,” as those terms are defined by the regulations. (Id.) The
ALJ determined that “[t]ransferability of job skills is not an issue because the claimant
does not have past relevant work .” (Id.) The ALJ then determined that “[i]f the
claimant stopped the substance use, considering claimant’s age, education, work
experience, and residual functional capacity, there would be a significant number of
jobs in the national economy that the claimant could perform,” such as a deli worker,
cafeteria attendant, and textile related positions. (Tr. at 35–36.) Accordingly, the ALJ
found that because Plaintiff would not be disabled if he stopped the substance use, his
substance use is a contributing factor material to the determination of disability, and
thus, the plaintiff has “not been disabled within the meaning of the Social Security Act
at any time from the alleged onset date through the date of this decision.” (Tr. at 36.)
Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of its review is limited to determining (1) whether there is
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substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts,
weigh evidence, or substitute its judgment for that of the Commissioner. Id. “The
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.
1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)). Indeed, even if this Court finds that the evidence preponderates against
the Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for
“despite this deferential standard [for review of claims] it is imperative that the Court
scrutinize the record in its entirety to determine the reasonableness of the decision
reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to
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apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d
629, 635 (11th Cir. 1984).
Mr. Miller alleges that the ALJ’s decision should be reversed and remanded for
two reasons. First, the plaintiff alleges that the ALJ’s physical RFC assessment is not
supported by substantial evidence for various reasons. (Doc. 10 at Page 7.) Second,
the plaintiff asserts that the ALJ’s mental RFC assessment is not supported by
substantial evidence. (Doc. 10 at Page 11.)
Physical RFC Assessment
In support of his contention that the ALJ’s RFC assessment is not supported
by substantial evidence, Plaintiff argues that: 1) the ALJ failed to comply with the
requirements of Social Security Ruling (“SSR”) 96-8p, which requires a function-byfunction analysis; 2) the ALJ’s RFC assessment was contrary to the opinions of Dr.
Zaremba, the one-time consultative examiner, and Dr. Heilpern, the non-examining
medical consultant; and 3) the ALJ failed to order any additional medical opinions.
(Doc. 10 at 7, 9–10.)
Plaintiff first asserts that the ALJ did not provide a function-by-function
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assessment compliant with SSR 96-8p to determine his ability to handle exertional or
strength demands. (Doc. 10 at Page 7). Specifically, Plaintiff alleges that the ALJ failed
to make specific findings regarding his push/pulling, postural, and/or manipulative
A claimant’s RFC reflects the most he can do despite his limitations. See 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The determination of an RFC is an
administrative assessment based on all the evidence of how a claimant’s impairments
and related symptoms affect his ability to perform work-related activities. See SSR 968p, 1996 WL 374184, at *1–2 (S.S.A.). The final responsibility for assessing a
claimant’s RFC rests with the ALJ, based on the relevant medical and other evidence.
See C.F.R. §§ 404.1527(e)(2), 404.1545(a)(3), 404.1546(c), 416.927(e)(2),
416.945(a)(3), 416.946(c). Relevant medical and other evidence includes medical
assessments, medical reports from treating and examining sources, and description
and observations of a claimant’s limitations by the claimant and others. See 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3); SSR 96-8p, 1996 WL 374184, at *5.
SSR 96-8p states that “[t]he RFC assessment must first identify the
individual’s functional limitations or restrictions and assess his or her work-related
abilities on a function-by-function basis . . . Only after that may RFC be expressed in
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terms of the exertional levels of work, sedentary, light, medium, heavy, and very
heavy.” SSR 96-8p, 1996 WL 374184, at *5. In addition, the strength demands:
“[s]itting, standing, walking, lifting carrying, pushing, and pulling” must be
considered separately, even if the final RFC assessment combines those activities. (Id.
at 5.) The ruling, however, does not require a detailed analysis in the ALJ’s written
decision of a claimant’s ability to perform each function. See SSR 96-8p, 1996 WL
374184, at *5, 7.
Plaintiff alleges that the ALJ failed to adequately explain his findings on a
function-by-function basis. However, even assuming arguendo that the ALJ could have
been more specific, his findings are supported by substantial evidence. The Eleventh
Circuit has held that, even when the ALJ could have been “more specific and
explicit” in his findings with respect to a plaintiff’s “functional limitations and workrelated abilities on a function-by-function basis,” they nonetheless meet the
requirements under SSR 96-8p if the ALJ considered all of the evidence. Freeman v.
Barnhart, 220 F. App’x 957, 959 (11th Cir. 2007). See also Castel v. Comm’r of Soc.
Sec., 355 F. App’x 260, 263 (11th Cir. 2009) (an ALJ’s RFC finding is sufficiently
detailed despite lacking an express discussion of every function if there is substantial
evidence supporting the ALJ’s RFC assessment). In addition, the ALJ is not required
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to “specifically refer to every piece of evidence in his decision,” so long as the
decision is sufficient to allow the court to conclude that the ALJ considered the
plaintiff’s medical condition as a whole. See Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th Cir. 2005) (per curiam).
Here, as in Freeman, it is evident that the ALJ considered all of the evidence in
the record in assessing Plaintiff’s physical RFC. The ALJ noted that he made his
determinations “[a]fter careful consideration of the entire record,” including all of
Plaintiff’s symptoms and the extent to which those symptoms could reasonably be
accepted as consistent with the objective medical evidence and other evidence, based
on 20 C.F.R. §§ 404.1529 and 416.929 and SSRs 96-4p and 96-7p. (Tr. at 32.) The
ALJ also noted that he “considered opinion evidence in accordance with the
requirements of 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and
06-3p,” and that he carefully reviewed Plaintiff’s subjective complaints in accordance
with the guidelines provided by 20 C.F.R. §§404.1529 and 416.929, and in SSR 96-7p.
(Tr. at 33.)
The ALJ stated that he limited Plaintiff to light work based on the objective
medical evidence, including the opinion of Dr. Robert H. Heilpern, a non-examining
state agency medical consultant. In reference to Plaintiff, Dr. Heilpern opined that
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“straining could produce a scrotal extrusion to the claimant’s previously repaired
hernia, and that the claimant would be limited to the light exertional level.” (Tr. at 34,
307–10, 540.) Dr. Heilpern’s opinion that Plaintiff be limited to light work impliedly
limits Plaintiff’s ability to push/pull within an exertional range consistent with light
work. In addition, the ALJ considered a physical examination of Plaintiff conducted
one month before the hearing. See SSR 96-8p, 1996 WL 374184, at *3. The ALJ
noted that on June 13, 2010, Plaintiff was examined at the Trinity Regional Center by
Dr. Solar Doldar. (Tr. at 50, 848.) Dr. Doldar found that Plaintiff had normal range
of motion in his extremities and no swelling or deformities. (Tr. at 50, 848.) Plaintiff
also had “5/5” or full strength in his upper and lower extremities. (Tr. at 845.)
Plaintiff’s back was reported as “negative” for “CVAT” and his spine was nontender. (Tr. at 34, 848.) Though Plaintiff was diagnosed with chronic obstructive
pulmonary disease (“COPD”), the condition was classified as mild. (Tr. at 845, 848.)
Further, a consultative physical examination by Dr. Jack Zaremba on March 17, 2009,
revealed Plaintiff’s hips, knees, and ankles were normal. (Tr. at 474.) Finally,
Plaintiff also testified that he provides food and water to his pets. (Tr. at 73, 190.)
The act of providing food and water logically requires manipulative functioning to
open the food, pour the water, and place the food and water for consumption. See
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SSR 96-9p, 1996 WL 374185, at *8 (S.S.A.) (noting manipulative functioning means
use of both hands and fingers); see also Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir.
1987) (noting the ALJ may consider a claimant’s daily activities when determining the
issue of RFC).
Taking the aforementioned medical evidence into account, the ALJ, in posing
his hypothetical question to the VE, stated Plaintiff was capable exertionally of:
lifting 20 pounds occasionally, 10 pounds frequently, would
be able to sit for two hours at a time, six hours during an
eight hour day, walk two hours at a time, six hours during
an eight hour day, would be capable of constant fingering
and handling bilaterally [. . . but could have] no exposure to
marked changes in temperature and humidity and exposure
to dust, fumes, and gases.
(Tr. at 91–92.) The ALJ’s description of Plaintiff’s exertional RFC is consistent with
light work. See 20 C.F.R. §§ 404.1567(b), 416.967(b) (defining “light work” as:
“[l]ifting 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 is in
this category when it involves sitting most of the time with some pushing and pulling
of arm or leg controls.”).
Accordingly, it is clear from the evidence above that Plaintiff did not have
postural limitations beyond those required of light work. The ALJ complied with SSR
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96-8p, especially considering the fact that the ruling does not require a detailed
analysis in the ALJ’s written decision of a claimant’s ability to perform each function.
See SSR 96-8p, 1996 WL 374184, at *5, 7. Furthermore, even assuming arguendo that
the ALJ could have been more explicit in his findings, there is sufficient evidence to
support the ALJ’s findings that the plaintiff can do light work as defined by 20 C.F.R.
§§ 404.1567(b) because it is clear that the ALJ considered all the evidence in the
record. Therefore, the ALJ sufficiently complied with the requirements of SSR 968p, notwithstanding that the ALJ may have been more “specific and explicit” in his
findings with respect to Plaintiff’s RFC. See Freeman, 220 F. App’x at 959.
Weight Given to Opinions of Consultative Examiner and
Non-Examining Medical Consultant
Next, Plaintiff argues that the ALJ’s RFC assessment is contrary to the
opinions of Drs. Zaremba and Heilpern. Within the classification of acceptable
medical sources are the following different types of sources which are entitled to
different weights of opinion: 1) a treating source, which is defined in the regulations
as “your physician, psychologist, or other acceptable medical source who provides
you, or has provided you, with medical treatment or evaluation and who has, or has
had, an ongoing treatment relationship with you;” 2) a non-treating source, which is
defined as “a physician, psychologist, or other acceptable medical source who has
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examined you but does not have, or did not have, an ongoing treatment relationship
with you;” and 3) a non-examining source, which is a “a physician, psychologist, or
other acceptable medical source who has not examined you but provides a medical or
other opinion in your case . . . includ[ing] State agency medical and psychological
consultants . . . .” 20 C.F.R. § 404.1502. The regulations and case law set forth a
general preference for treating sources’ opinions over those of non-treating sources,
and non-treating sources over non-examining sources.
See 20 C.F.R. §
404.1527(d)(2); Ryan v. Heckler, 762 F.2d 939, 942 (11th Cir. 1985). However, “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. Comm’r of Soc. Sec., 422 F. App’x 869, 873 (11th Cir. 2011).
Dr. Zaremba conducted a consultative examination of Plaintiff on March 17,
2009, at Baptist Health Center. (Doc. 10 at Page 9–10.) Dr. Zaremba found Plaintiff
had restricted range of motion in his cervical and dorsolumbar spines. (Tr. at 473,
476.) He diagnosed Plaintiff with “cervical degenerative disc disease,” “lower
lumbar mechanical pain radiating into the hips interfering with prolonged standing,
bending and lifting,” and “status post open reduction and internal fixation of a
forearm fracture in his dominant are with some persistent pain.” (Tr. at 476-77)
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Substantial evidence supports the ALJ’s decision to afford only minimal
weight to the opinion of Dr. Zaremba, a non-treating source. As the fact-finder, the
ALJ was entitled to weigh the evidence and ultimately reject portions of Dr.
Zaremba’s report as inconsistent with other evidence of record. See 20 C.F.R. §
416.929(c)(4); McCloud v. Barnhart, 166 F. App’x 410, 418–19 (11th Cir. 2006)
(holding that an ALJ “may reject the opinion of any physician when the evidence
supports a contrary conclusion”) (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1240
(11th Cir. 1983)). Further, the opinion of Dr. Zaremba was not entitled to any
deference because, as a one-time examiner, he was not a treating physician. See 20
C.F.R. § 404.1527(d)(I); Crawford v. Comm’r of Soc. Sec., 363 F.3d at 1160.
Substantial evidence supports the weight the ALJ afforded to Dr. Zaremba’s
medical opinion for the following reasons. The ALJ specifically discussed which
physicians’ medical opinions he afforded more weight and the basis for each decision.
(Tr. at 35.) The ALJ specifically noted that he afforded more weight to the opinions
of Dr. Cooper and Dr. Heilpurn because their opinions were “reasonable given the
combined effects of the claimant’s impairments as demonstrated by the objective
evidence.” (Id.) In support, the ALJ cited to exhibits 7F, 8F, 9F, 10F, 11F, and 12F
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in the record. (Id.) In contrast, the ALJ afforded minimal weight to Dr. Zaremba’s
medical opinion because it appeared that Dr. Zaremba relied solely upon the plaintiff’s
reports and subjective complaints.1 (Id.) Moreover, the ALJ found that Dr. Zaremba’s
findings were inconsistent with the objective medical evidence and the plaintiff’s prior
and subsequent physical examinations. (Id.) In addition, the ALJ noted that Plaintiff
attempted to mislead Dr. Zaremba. At the consultative physical examination
conducted by Dr. Zaremba, Plaintiff told him that he had no history of alcohol or drug
use, even though the record clearly indicated otherwise. (Tr. at 34, 469, 475.) In fact,
at an appointment with Dr. Summerlin on March 4, 2009, Plaintiff reportedly smelled
of alcohol and admitted to drinking six beers the night before the appointment, but
only after initially telling Dr. Summerlin that he had not drank in several days. (Tr. at
469.) At the same appointment Plaintiff admitted to significant use of numerous illegal
drugs and abuse of prescription drugs. (Id.) Yet, two weeks later, Dr. Zaremba wrote
“Alcohol - Negative” in Plaintiff’s social history. (Tr. at 475.) Moreover, Plaintiff
told Dr. Summerlin that he smoked between one and two packs of cigarettes a day, but
told Dr. Zaremba that he only smoked half a pack of cigarettes a day. (Tr. at 469, 475.)
The ALJ found Plaintiff to be not fully credible due to multiple misrepresentations he made
to examining physicians, and his reported failure to put forth a good effort during an examination by
Dr. Robert Summerlin—a psychological consultative examiner—who also opined that “there may
have been an element of malingering to [Plaintiff’s] overall presentation.” (Tr. at 33–34.) Plaintiff
does not challenge the ALJ’s findings regarding his credibility.
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Thus, the ALJ determined that Plaintiff was less than forthcoming in his reports to Dr.
Zaremba, causing the ALJ to question to validity of Dr. Zaremba’s findings.
In light of the fact that Dr. Zaremba relied on Plaintiff’s reports and subjective
claims in rendering his medical opinion, there is substantial evidence to support the
ALJ’s decision to only afford minimal weight to Dr. Zaremba’s March 2009
assessment of Plaintiff’s condition. See McCloud, 166 F. App’x at 418–419; Crawford,
363 F.3d at 1160. See also 20 C.F.R. § 404.1527(d)(I).
As noted, Dr. Heilpern opined in part that Plaintiff could do light work but that
he was limited to pushing and pulling occasionally with his left arm and frequently
with his right and had postural and manipulative limitations. (Tr. at 536-38.) Dr.
Heilpern’s assessment was based in part on Dr. Zaremba’s examination. (Tr. at 536.)
The ALJ gave significant, but not controlling, weight to Dr. Heilpern’s opinions of
Plaintiff’s exertional abilities “given the combined effects of Plaintiff’s impairments
as demonstrated by the objective evidence.”
(Tr. at 51.) See 20 C.F.R. §§
404.1527(c)(4), 416.927(c)(4). As discussed in part III.A.2., supra, substantial medical
evidence in the record supported the ALJ’s exertional RFC determination, which was
based in part on Dr. Heilpern’s opinion. Plaintiff has not demonstrated that the ALJ
erred by assigning substantial, but not controlling, weight to Dr. Heilpern’s opinion.
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See Jarrett, 422 F. App’x at 873 (“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”).
Failure to Obtain Additional Medical Opinions
The plaintiff also summarily states that the ALJ should have obtained testimony
from a medical expert or ordered an additional consultative examination with a
medical source opinion before determining Plaintiff’s RFC. (Doc. 10 at Page 8.)
However, by Plaintiff’s own admission, there is no express requirement for a medical
source opinion or RFC assessment to be of record in order for the ALJ to make RFC
findings. (Doc. 10 at Page 7.) See also Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253,
1269 (11th Cir. 2007) (holding that an ALJ is not required to obtain additional medical
opinion when the record contains sufficient evidence for the ALJ to make a disability
Additionally, the only legal authority Plaintiff cited in support of his assertion
is 20 C.F.R. § 404.1529(b), which states that the ALJ may ask for and consider the
opinion of a medical expert. By its plain language, the regulation does not require an
ALJ to seek an additional medical opinion when the record is sufficiently developed
for the ALJ to determine a plaintiff’s RFC. Here, there is sufficient objective medical
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evidence in the record to support the ALJ’s RFC findings. The ALJ specifically noted
in his decision the specific medical findings of eight different physicians: Dr. Salar
Doldar, Dr. Joel Mixon, Dr. Robert Summerlin, Dr. Amy Cooper, Dr. Bibb Allen, Dr.
Ronald Lepke, Dr. Robert Heilpern, and Dr. J. L. Zaremba. (Tr. at 28–31, 34–35.)
Plaintiff has not shown that an additional medical consultation would have
demonstrated any limitations beyond those that the ALJ included in his RFC, and in
light of the fact that the ALJ discussed the medical opinions of eight examining and
non-examining physicians in his decision, it seems highly unlikely that obtaining an
additional medical opinion or consultation would have unearthed any new limitations.
Thus, the ALJ’s RFC assessment was based on substantial evidence notwithstanding
the fact that the ALJ did not request or order any medical opinions or consultations
regarding the plaintiff’s limitations in addition to those already contained in the
Mental RFC Findings
Plaintiff contends that the ALJ’s finding at steps 2 and 3 of the sequential
evaluation—that he would not have a severe mental impairment if he stopped abusing
substances—is inconsistent with the ALJ’s ultimate RFC finding, which included
moderate mental limitations. (Doc. 10 at Page 11.)
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In considering an individual with a mental impairment the ALJ is required to
use the “special technique” dictated by the Psychiatric Review Technique Form
(PRTF) for evaluating mental impairments. See Moore v. Barnhart, 405 F.3d 1208,
1213 (11th Cir. 2005) (citing 20 C.F.R. § [416.920a-(a)]). This technique requires
separate evaluations on a four-point scale of how the individual’s mental impairment
impacts four functional areas: “activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation.” (Id.) These
four broad functional areas are known as the “paragraph B” criteria. See SSR 96-8p,
1996 WL 374184, at *4. In his decision, the ALJ completed a PRFT and incorporated
the results of the technique into the findings and conclusions of his decision. (Tr. at
After analyzing each of the four functional areas in turn, the ALJ found that if
Plaintiff stopped his substance abuse he would have no more than mild limitations in
the first three functional areas. (Id.) As to the fourth functional area, the ALJ found
that Plaintiff would experience no episodes of decompensation if he stopped abusing
substances. (Tr. at 31.) Thus, the ALJ assigned a rating of “mild” to the first three
functional areas and found “no” limitation in the fourth area. (Id.) As the ALJ
correctly stated, such determinations generally result in a finding that the mental
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impairment is non-severe. See 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1).
Nevertheless, an ALJ must consider a plaintiff’s severe and non-severe impairments
in assessing his RFC. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).
The ALJ correctly explained that the limitations identified in the “paragraph
B” criteria are not an RFC assessment, but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. (Tr. at 31.) See SSR
96-8p, 1996 WL 374184, at *4. The ALJ noted, “the mental RFC assessment used at
steps 4 and 5 of the sequential evaluation process requires a more detailed assessment
by itemizing various functions contained in the broad categories found in paragraph
B of the adult mental disorders listings in 12.00 of the Listing of Impairments.” (Id.)
See SSR 96-8p, 1996 WL 374184, at *4. The ALJ then went on to state that the RFC
assessment he decided upon reflected the degree of limitation he found in the
paragraph B mental function analysis. (Id.) In assessing Plaintiff’s mental RFC, the
ALJ found that he would have:
no greater than moderate restriction in the following areas:
understanding, carrying out, and remembering simple
instructions; using judgment; responding appropriately to
supervision, co-workers and usual work situations; dealing
with changes in a routine work setting; and responding to
customary work pressures.
(Tr. at 32.) Thus, to the extent the ALJ translated his “paragraph B” findings into an
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RFC with moderate limitations, it was actually to Plaintiff’s benefit. See SSR 96–8p,
1996 WL 374184, at *4, 6.
Plaintiff also argues that the ALJ’s use of “moderate” in his RFC finding is not
a “vocationally relevant” term to quantify his mental limitations. (Doc. 10 at Page 12.)
However, the VE, in response to the ALJ’s hypothetical question, stated there were
other jobs Plaintiff could perform even with “moderate” mental limitations. (Tr. at
92–93.) In addition, Social Security Ruling 85-16, 1985 WL 56855, which addresses
the assessment of RFC for mental impairments, notes that individuals with a mental
impairment may “experience moderate to moderately severe difficulties in relating to
coworkers or supervisors, or in tolerating normal work pressures. The conclusion of
reduced RFC in this area can be applied to all steps of vocational assessment.” See
SSR 85-16, 1985 WL 56855, at *3. Thus, the term “moderate” may be used in
Plaintiff’s vocational assessment.
Upon review of the administrative record, and considering all of Mr. Miller’s
arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law.2 A separate order will be entered.
The Court notes that Plaintiff makes several conclusory statements in her brief that could
perhaps be construed as additional arguments in her favor. These brief statements are not enough,
Page 22 of 23
Done this 6th day of December 2013.
L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
however, to properly place these issues before this Court and should be deemed waived. See
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“A passing reference
to an issue in a brief is not enough, and the failure to make arguments and cite authorities in support
of an issue waives it.”).
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