Allen v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 7/21/2014. (PSM)

FILED
2014 Jul-21 AM 10:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

THERESA LYNN ALLEN,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.
2:12-cv-2933-AKK

MEMORANDUM OPINION
Plaintiff Theresa Lynn Allen (“Allen”) 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’s (“ALJ”) decision which has become the decision of the Commissioner - is supported by substantial
evidence. Therefore, for the reasons elaborated herein, the court will affirm the
decision denying benefits.
I. Procedural History
Allen, whose past relevant experience includes work as a truck driver, filed an
application for Title II disability insurance benefits and Title XVI Supplemental
Security Income on January 14, 2009, with an amended disability onset date of
January 1, 2009, due to back problems, attention deficit hyperactivity disorder, and

emphysema. (R. 23, 168). After the SSA denied Allen’s claim, she requested a
hearing before an ALJ. (R. 23). The ALJ subsequently denied Allen’s claim, (R.
20-33), which became the final decision of the Commissioner when the Appeals
Council refused to grant review. (R. 1-4). Allen then filed this action for judicial
review pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). 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)
mandates 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
2

(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 impairments 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). 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

(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 Allen had not
engaged in substantial gainful activity since January 1, 2009, and, therefore, met Step
One. (R. 25). Next, the ALJ found that Allen satisfied Step Two because she
suffered from the severe impairments of “attention deficit hyperactivity disorder,
amphetamine abuse, major depressive disorder, recurrent, moderate; anxiety
disorder, NOS and borderline personality disorder.” Id. The ALJ then proceeded to
the next step and found that Allen failed to satisfy Step Three because she “does not
have an impairment or combination of impairments that meets or medically equals
one of the listed impairments.” Id. Although the ALJ answered Step Three in the
4

negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ
proceeded to Step Four where he determined that Allen has the residual functional
capacity (RFC) to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except that she could lift 20 pounds occasionally and 10 pounds
frequently, sit for 2 hours at a time out of an eight hour workday, stand
for 2 hours at a time out of an eight hour workday, walk for 2 hours at
a time out of an eight hour workday, handle and finger constantly,
bilaterally; would have no more than moderate limitations in basic
work activities such as understanding, remembering and carrying out
simple instructions, use of judgment and responding appropriately to
supervision, coworkers, and usual work situations, dealing with
changes in a routine work setting, responding to customary work
pressures and would miss no more than 1-2 days of work per month.
(R. 28). In light of her RFC, the ALJ held that Allen “is unable to perform any past
relevant work.” Id. Lastly, in Step Five, the ALJ considered Allen’s age, education,
work experience,1 and RFC and determined “there are jobs that exist in significant
numbers in the national economy [Allen] can perform.” (R. 32). Therefore, the
ALJ found that Allen “has not been under a disability, as defined in the Social
Security Act, from January 1, 2009, through the date of this decision.” (R. 33).
V. Analysis
The court now turns to Allen’s contentions that the ALJ erred because he (1)
did not give proper weight to the opinion provided by her treating therapist; and (2)

1

As of the date of the ALJ’s decision, Allen was 49 years old, had a limited
education, and had past relevant medium semi-skilled work as a truck driver. (R. 3132).
5

failed to recontact the therapist before rejecting her opinion. See doc. 8 at 6-9. The
court addresses each contention in turn.
A.

The ALJ properly considered the opinion of Allen’s treating therapist.

Allen contends the ALJ improperly rejected the opinions of Emily Holm,
Allen’s therapist, who submitted a Supplemental Questionnaire indicating Allen had
a “marked” impairment in maintaining social functioning, “marked” deficiencies of
concentration, persistence or pace, and a “marked” impairment in her ability to
understand, carry out, and remember instructions in a work setting. (R. 354).
Because Ms. Holm is not an acceptable medical source, see 20 C.F.R. § 404.1513(a)
(listing acceptable medical sources), her opinions are not medical source opinions.
20 C.F.R. § 404.1527(a)(2). Nonetheless, evidence from sources such as Ms. Holm
may be used to show the severity of a claimant’s impairment, 20 C.F.R. §
404.1513(d), and the ALJ “generally should explain the weight given to opinions
from these ‘other sources,’ or otherwise ensure that the discussion of the evidence in
the . . . decision allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case.” See
SSR 06-03p at *6.
The record here shows that the ALJ properly considered Ms. Holm’s opinion.
In a nutshell, the ALJ discussed Ms. Holm’s opinion in considering the evidence, (R.
27), and explained that it “is inconsistent with the other medical evidence in the file,
6

and is therefore given little weight, as she is a licensed counselor, rather than a
licensed psychologist.” (R. 31). Significantly, the other medical evidence, which
includes a psychiatric evaluation from Dr. Dennis Smith, who the ALJ noted
assessed a current GAF score of 50-55,2 (R. 30, 212), supports the ALJ’s decision.
As the ALJ observed, Dr. Smith noted that Allen reported “her depression as 0/10,
and stated that ‘she really does not feel anxious outside of the stressors in her life,’”
and that she “rated her attention deficit disorder as 5-6/10.” (R. 31, 200). These
treatment notes from Allen’s treating psychiatrist contradict Ms. Holm’s opinion, and
provide substantial evidence to support the ALJ’s decision to give Ms. Holm’s
supplemental questionnaire little weight. See 20 C.F.R. §§ 404.1527(c)(5),
416.927(c)(5) (more weight is generally given to the opinion of a specialist);
Bloodworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983) (The ALJ “may reject
the opinion of any physician when the evidence supports a contrary conclusion.”).

2

The Global Assessment of Functioning (GAF) Scale is used to report an
individual’s overall level of functioning. Diagnostic and Statistical Manual of
Mental Disorders 32 (4th ed., Text Revision). A GAF of 41-50 indicates: “Serious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or
any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).” Id. at 34 (emphasis in original). A rating of 51-60
reflects: “Moderate symptoms (e.g., flat affect and circumstantial speech, occasional
panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers.)” Id. (emphasis in
original).
7

Therefore, Allen’s contention that the ALJ did not give Ms. Holm’s opinion proper
weight is without merit.
B.

The ALJ was not required to recontact Ms. Holm.

Allen’s secondary contention that the ALJ was required to recontact Ms.
Holm before rejecting her opinion is unavailing because the regulations and Social
Security Ruling she cites (20 C.F.R. §§ 404.1512(e), 416.912(e), and SSR96-5p)
apply only to medical source opinions. Specifically the regulations provide in
pertinent part: “When the evidence we receive from your treating physician or
psychologist or other medical source is inadequate for us to determine whether you
are disabled, we will need additional information to reach a determination or a
decision.” 20 C.F.R. §§ 404.1512(e), 416.912(e) (2010) (emphasis added).
Likewise, SSR 96-5p, which is entitled “Medical Source Opinions on Issues
Reserved to the Commissioner,” (emphasis added), provides a policy interpretation
of the regulations relating to medical source opinions:
The regulations at 20 CFR 404.1527(a) and 416.927(a) define medical
opinions as “statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis
and prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.” The regulations recognize that treating
sources are important sources of medical evidence and expert
testimony, and that their opinions about the nature and severity of an
individual’s impairment(s) are entitled to special significance;
sometimes the medical opinions of treating sources are entitled to
controlling weight.
8

SSR 96-5p, 1996 WL 374183 at *2 (S.S.A.). Therefore, when the ruling states that
“[f]or treating sources, the rules also require that we make every reasonable effort to
recontact such sources for clarification when they provide opinions on issues
reserved to the Commissioner and the bases for such opinions are not clear to us,”
Id., it is referring to 20 C.F.R. §§ 404.1512(e) and 416.912(e), which apply only to
opinions from acceptable medical sources. In other words, because Ms. Holm is not
an acceptable medical source, the ALJ was not required to recontact her before
rejecting her opinions. Accordingly, the ALJ committed no reversible error.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Allen 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 21st day of July, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

9