Wilson v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/5/2016. (JLC)

FILED
2016 Aug-05 PM 04:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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) Case No.: 2:15-CV-0435-VEH
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MEMORANDUM OPINION
Plaintiff Billy Dwayne Wilson (hereinafter “Mr. Wilson”) brings this action
under 42 U.S.C. § 405(g), Section 205(g) of the Social Security Act. He seeks review
of a final adverse decision of the Commissioner of the Social Security Administration
(“Commissioner”), who denied his application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”).1 Mr. Wilson timely pursued and
exhausted his administrative remedies available before the Commissioner. The case

1

In general, the legal standards applied are the same regardless of whether a claimant
seeks DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI
claims. Therefore, citations in this opinion should be considered to refer to the appropriate
parallel provision as context dictates. The same applies to citations of statutes or regulations
found in quoted court decisions.

is thus ripe for review under 42 U.S.C. § 405(g).2
FACTUAL AND PROCEDURAL HISTORY
Mr. Wilson was 53 years old at the time of his hearing before the
Administrative Law Judge (“ALJ”). Compare Tr. 174 with Tr. 44. He has completed
the eleventh grade, and received a GED. Tr. 72. His past work experience includes
employment as a heating and air conditioner installer. Tr. 74. He claims he became
disabled on May 24, 2011, due to colon problems. Tr. 178, 51. His last period of work
ended on May 24, 2011. Tr. 206. He will be last insured on December 31, 2016. Tr.
27.
On August 16, 2011, Mr. Wilson protectively filed a Title II application for a
period of disability and DIB. Tr. 172. He also protectively filed a Title XVI
application for SSI on that date. Id. On November 18, 2011, the Commissioner
initially denied these claims. Tr. 98. Mr. Wilson timely filed a written request for a
hearing on January 9, 2012. Tr. 114. The ALJ conducted a hearing on the matter on
March 27, 2013. Tr. 46. On August 29, 2013, he issued his opinion concluding Mr.
Wilson was not disabled and denying him benefits. Tr. 23. On the same day, he timely
petitioned the Appeals Council to review the decision. Tr. 1. On January 12, 2015,

2

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.
2

the Appeals Council issued a denial of review on his claim. Id.
Mr. Wilson filed a Complaint with this court on March 13, 2015, seeking
review of the Commissioner’s determination. (Doc. 1). The Commissioner answered
on June 29, 2015. (Doc. 2). Mr. Wilson filed a supporting brief (Doc. 8) on August
13, 2015, and the Commissioner responded with her own (Doc. 9) on September 14,
2015. With the parties having fully briefed the matter, the court has carefully
considered the record and AFFIRMS the decision of the Commissioner.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
3

presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.3 The Regulations define “disabled” as
“the inability to do 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 (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory

3

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of July 28, 2016.
4

diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(i)

whether the claimant is currently employed;

(ii)

whether the claimant has a severe impairment;

(iii)

whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];

(iv)

whether the claimant can perform his or her past work; and

(v)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
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in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After consideration of the entire record, the ALJ made the following findings:
1.

Mr. Wilson met the insured status requirements of the Social Security
Act through December 31, 2016. Tr. 30.

2.

He had not engaged in substantial gainful activity since May 24, 2011,
the alleged disability onset date. Id.

3.

He had the following severe impairments: history of chronic obstructive
pulmonary disease (C.O.P.D.), right ankle pain, and abdominal pain with
diarrhea. Id.

4.

He did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. Tr. 33.

5.

He had the residual functioning capacity (“RFC”) to perform light work
as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b). Id.

6.

He was unable to perform any past relevant work. Tr. 37.

7.

He was 51 years old, which is defined as a person closely approaching
advanced age, on the alleged disability date. Id.

8.

He had a general education diploma and was able to communicate in
English. Id.

9.

He had acquired work skills from past relevant work. Id.

10.

Considering his age, education, work experience, and residual
functioning capacity, he had acquired work skills from past relevant
work that are transferable to jobs that existed in significant numbers in
the national economy that he could perform. Tr. 38.
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11.

Mr. Wilson had not been under a disability, as defined in the Social
Security Act, from May 24, 2011, through the date of this decision. Id.
ANALYSIS

I.

INTRODUCTION
The court may only reverse a finding of the Commissioner if it is not supported

by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).4 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Mr. Wilson urges this court to reverse the Commissioner’s decision to deny his
benefits on two grounds. First, he claims that the ALJ improperly classified his RFC
as light work, when sedentary was the correct RFC. (Doc. 8 at 4-6). This argument
is based on Mr. Wilson’s contention that the ALJ improperly discounted part of the
opinion-evidence offered by Dr. Prameela Goli, M.D. (“Dr. Goli”) post-hearing. Id.
at 5. Second, Mr. Wilson argues that the ALJ erred when he determined that Mr.

4

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
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Wilson’s skills as a heating and air conditioning installer were transferable to new
work. Id. at 6-8.
II.

THE ALJ’S DECISION TO DISCOUNT PART OF DR. GOLI’S
OPINION AND FIND THAT MR. WILSON’S RFC WAS LIGHT WORK
WAS SUPPORTED BY SUBSTANTIAL EVIDENCE.
Mr. Wilson was treated by Dr. Goli once, after the evidentiary hearing. Tr. 400.

Dr. Goli is thus a consultative physician. Mr. Wilson further points out that the ALJ
erred by not accepting all of Dr. Goli’s testimony. (Doc. 8 at 5). Mr. Wilson claims
that if the ALJ had accepted Dr. Goli’s testimony in its entirety, that would have led
the ALJ to find that Mr. Wilson’s RFC was sedentary, not light work. Id. The ALJ
gave partial weight to Dr. Goli’s testimony. Tr. 36. When Dr. Goli’s testimony
contradicted itself, or contradicted other evidence in the record, the ALJ considered
this evidence less reliable. Tr. 37.
The ALJ cannot substitute his opinion for the opinion of medical or vocational
experts. Freeman v. Schweiker, 681 F.2d 727, 732 (11th Cir. 1992). It is improper for
the ALJ to act as a physician. Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th Cir.
1992) (Johnson, J. concurring) (“[The ALJ] may not arbitrarily substitute his own
hunch or intuition for the diagnosis of a medical professional.”). A treating doctor’s
opinion is given more weight than the opinion of a consultative doctor. Wilson v.
Heckler, 734 F.2d 513, 518 (11th Cir. 1984) (citing Oldham v. Schweiker, 660 F.2d
8

1078, 1084 (5th Cir. Unit B 1981)); Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th
Cir. 1986). A consultative doctor’s opinion is not entitled to deference and can be
discounted. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (citing Gibson
v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986)); Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1160 (11th Cir. 2004).
Several unpublished Eleventh Circuit cases give guidance to determine whether
an ALJ made a reversible error in discounting a RFC evaluation from a physician. In
cases where there was a RFC analysis by a physician, but it was not mentioned or
explicitly discounted by the ALJ, the Eleventh Circuit has remanded, ordering the
ALJ to consider that evidence, or clearly state why he chose to discount it. See
Dempsey v. Comm’r of Soc. Sec., 454 F. App’x 729, 733 (11th Cir. 2011) (remanding
when the ALJ gave great weight to a physician’s RFC analysis, but ignored a critical
portion); Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 871 (11th Cir. 2012)
(remanding where the ALJ gave great weight to a physician’s RFC opinion, but failed
to explain why he seemed to discount one portion); Gaskin v. Comm’r of Soc. Sec.,
533 F. App’x 929 (11th Cir. 2013) (remanding so the ALJ could expressly consider
a RFC opinion he had previously failed to address). But in other cases, in which the
ALJ explicitly explained the weight given to the RFC opinion and the reasons for it,
the Eleventh Circuit has affirmed. See Newberry v. Comm’r, Soc. Sec. Admin., 572
9

F. App’x 671, 671 (11th Cir. 2014) (remand not needed if it was clear that the ALJ’s
conclusion was based on substantial objective medical evidence, even if some RFC
opinion disagreed); Adams v. Comm’r, Soc. Sec. Admin., 586 F. App’x 531, 534 (11th
Cir. 2014) (remand not necessary when the ALJ discounted consulting physician’s
opinion that plaintiff could not work, because it was considered by the ALJ, but
rejected because it contradicted other objective evidence). An ALJ can reject a RFC
evaluation when it is inconsistent with the objective evidence that doctor found, or
other medical information in the record, so long as there is ultimately substantial
evidence to support the ALJ’s RFC finding. See Ogranaja v. Comm’r of Social Sec.,
186 F. App’x 848, 850-51 (11th Cir. 2006) (ALJ did not err in discounting portions
of a RFC opinion that contradicted the doctor’s own objective evaluation, and
contradicted the evaluations of other doctors); Peters v. Astrue, 232 F. App’x 866,
871 (11th Cir. 2007) (ALJ did not err by discounting disability reports when they
contradicted that doctor’s treatment notes). In at least one case, the Eleventh Circuit
affirmed an ALJ who discounted the RFC report of a doctor because it was based on
self-reporting by the claimant that the ALJ found was not credible, and explained his
reasons for that finding. See Weekley v. Comm’r of Soc. Sec., 486 F. App’x. 806, 808
(11th Cir. 2012) (ALJ did not err in questioning the claimant’s credibility, and the
effect of her self-reporting on a doctor’s RFC evaluation); see also Moore v.
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Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005) (“[C]redibility determinations are the
province of the ALJ.”).
The ALJ found that Dr. Goli’s recommendation that Mr. Wilson use a cane (Tr.
404), and his opinion that Mr. Wilson could only lift up to ten pounds, was not
reliable. The ALJ dismissed the cane diagnosis as being inconsistent with other
evidence and based on dubious self-reporting by Mr. Wilson. If the ALJ had accepted
the cane diagnosis, Mr. Wilson would likely be unable to meet the “good deal of
walking or standing” requirement of light work. 20 C.F.R. § 404.1567(b); §
416.967(b). Mr. Wilson’s use of the cane was not mentioned by any other treating or
examining physician, including specifically his multiple treating physicians at UAB
Medical West. Tr. 36. Although Mr. Wilson came with a cane when he went to see
Dr. Goli, the results of her physical examination of him do not straightforwardly
support his need for a cane. See Tr. 400 (finding that hip, ankles, feet are all relatively
normal, despite some issues with his right hip). It seems that the recommendation was
based solely on Mr. Wilson’s self-report. See id. (“[H]e states the pain seems to be
really bad in his hip.”). But Mr. Wilson did not report to Dr. Clark Gray, M.D. (“Dr.
Gray”), a treating physician, that he was using a cane, if he was using one. See Tr.
221 (Mr. Wilson did not check a box that would indicate he was using a cane); see
also Tr. 311, 314 (Dr. Gray did not check a box that would indicate Mr. Wilson was
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using a cane). Other aspects of his self-reporting to Dr. Goli conflict with the rest of
his medical records, demonstrating why the ALJ found him less than credible.5 See
Tr. 35-37. Though not referring to whether Mr. Wilson needed a cane, Steven
Zimmerman, who also reviewed Mr. Wilson’s medical records, noted that “[m]any
of the symptoms and limitations mentioned by the claimant do not have medical
evidence to support them.” Tr. 349.6
There is substantial evidence to support the ALJ’s finding that Mr. Wilson
could meet the “good deal of walking or standing” requirement of light work as
required by a RFC of light work under 20 C.F.R. § 404.1567(b); § 416.967(b). The
ALJ relied on the opinion of Dr. Hasson, who twice found that Mr. Wilson’s
musculoskeletal system showed “no joint pain; no muscle pain.” Tr. 335, 372; see Tr.
36 (ALJ’s reliance on this testimony). Dr. Hasson also suggested that Mr. Wilson
should walk–and thus, in his opinion necessarily could walk–thirty minutes a day. Tr.
335; see Tr. 36 (ALJ’s reliance on this testimony).
The ALJ also found that Dr. Goli’s functional assessment that Mr. Wilson

5

Specifically, Mr. Wilson alleges rapid weight loss that is not supported by his medical
records. He told Dr. Goli that he had lost almost 50 pounds in the past forty days from 174
pounds to 125 pounds. Tr. 400. However, on his most recent visit to the doctor in the record
before the visit to Dr. Goli he weighed 130 pounds. Tr. 384.
6

Though the ALJ made clear that he did not rely on Mr. Zimmerman’s findings (Tr. 37),
it is nonetheless worth noting that both the ALJ and Mr. Zimmerman independently questioned
Mr. Wilson’s credibility, after reviewing the same medical records.
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could only lift ten pounds frequently was not reliable because it conflicted with Dr.
Goli’s own objective findings, and was based on dubious self-reporting. Tr. 36. If the
ALJ had accepted the “frequently lift up to ten pounds” diagnosis, he may have found
that Mr. Wilson did not meet requirements of light work, specifically the requirement
that he lift “no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b); § 416.967(b). Mr.
Wilson told Dr. Goli that he “has trouble even lifting a glass of water.” Tr. 400. But
Dr. Goli’s examination of Mr. Wilson’s upper extremities showed no issue with range
of motion, and no issue with his elbows or wrists, though he noted some shoulder
pain. Tr. 401; see also Tr. 37 (ALJ’s reliance on this medical testimony). The ALJ
noted that other examinations “regularly demonstrated that the claimant exhibited no
musculoskeletal or strength abnormalities, no abnormalities, no wasting or muscle
loss.” Tr. 37; see also Tr. 335 (Dr. Jack Hasson, a treating physician, noted normal
musculoskeletal system); see also Tr. 356, 374 (other examples of identical reports
by Dr. Hasson). It seems implausible that Mr. Wilson would be unable to lift a glass
of water, while multiple times Dr. Hasson found that he had “normal strength.” Given
the contradictions both within Dr. Goli’s report and with reports from other
physicians, the ALJ’s decision to discount Dr. Goli’s RFC conclusion was supported
by substantial evidence.
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Instead of Dr. Goli’s opinion, the ALJ relied on the records of other treating
physicians when he determined that Mr. Wilson’s proper RFC was light work. Most
of the evidence the ALJ cites to in his opinion discounts the alleged severity of Mr.
Wilson’s colon and breathing problems and their impact on his ability to work. Tr.
33-36. The ALJ discounts Mr. Wilson’s subjective testimony about the severity of
these medical issues, citing the Eleventh Circuit standard in Holt v. Sullivan, 921 F.2d
1221 (11th Cir. 1991) (giving a three-part test for an ALJ to follow in discounting
subjective evidence). Mr. Wilson does not contest these findings in his brief; they are
supported by substantial evidence. The other treating physicians in the record focused
on Mr. Wilson’s breathing and abdominal issues, and did not address his
musculoskeletal condition. Since the ALJ had substantial evidence for his findings,
made apparent which parts of Dr. Goli’s opinion he discounted, and made clear his
reasons for doing so, there is no error in his RFC determination.
III.

THE ALJ DID NOT ERR BY CONCLUDING THAT MR. WILSON HAD
TRANSFERABLE SKILLS.
A skill is a “knowledge of a work activity which requires the exercise of

significant judgment that goes beyond the carrying out of simple job duties and is
acquired through performance of an occupation which is above the unskilled level.”
Zimmer v. Comm'r of Soc. Sec., 211 F. App’x 819, 820 (11th Cir. 2006) (citing S.S.R.

14

82–41 at 2, 1975-1982 Soc.Sec.Rep.Serv. 847 (Jan. 1, 1982)) (internal quotations
omitted). Transferability is more likely when jobs have similar levels of skill, or
similar tools, processes, products or services, though these do not all need to be
present. Id. (citing 20 C.F.R. §§ 404.1568(d)(2), 416.968(d)(2)). An ALJ can rely on
the testimony of a VE to determine “what level of skill the claimant achieved in his
past work, whether the claimant has transferable skills, and whether the claimant can
perform other jobs.” Id. (citing Jones v. Apfel, 190 F.3d 1224,1229 (11th Cir. 1999)).
An ALJ “may rely solely on a VE’s testimony.” Jones, 190 F.3d at 1230. The ALJ in
the present case relied on the VE’s testimony. See Tr. 37 (using the VE’s testimony
for his ninth finding); see also Tr. 74 (VE’s testimony that past work was skilled). It
is notable that after finding that Mr. Wilson had transferable skills, the jobs the VE
found that Mr. Wilson could perform were all unskilled jobs–cashier, marker, and
bench assembler. See Tr. 76 (VE’s testimony that cashier, marker, and bench
assembler are all unskilled); see also Tr. 38 (ALJ’s reliance on the VE’s testimony).
Since the ALJ properly relied on the VE, the ALJ’s finding that Mr. Wilson’s skills
are transferable is supported by substantial evidence.
But even if the ALJ had erred when he determined that Mr. Wilson’s skills
were transferable and applied the incorrect rule under the Medical/Vocational
Guidelines, this would have been a harmless error. In the Eleventh Circuit, courts will
15

not reverse and remand if the error does not prejudice the claimant. See Diorio v.
Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (remand not needed for harmless error
of misclassifying plaintiff’s age and work history); Mills v. Astrue, 226 F. App’x 926,
931 (11th Cir. 2007) (“However, when an incorrect application of the regulations
results in harmless error because the correct application would not contradict the
ALJ's ultimate findings, the ALJ's decision will stand.”). This standard should apply
to the use of the incorrect rule under the Medical/Vocational Guidelines. See Burrell
v. Astrue, No. 11-0141-N, 2012 WL 3817788, at *4 n.4 (S.D. Ala. Aug. 31, 2012)
(“The court is satisfied that, where there exists another Grid Rule applicable to
plaintiff's position which would support the same determination as was made using
the wrong rule, harmless error analysis applies.”)
Applying the Medical/Vocational Guideline Grids, 20 C.F.R. § 404.1569,
Appendix 2, Mr. Wilson argues that he should be evaluated as someone who has
previous work experience of “Skilled or semi-skilled–skills not transferable.” The
ALJ evaluated Mr. Wilson under Table 2, since the ALJ found that he had a RFC of
light work.7 Mr. Wilson is “closely approaching advanced age”, since he was 51 years
old on the alleged onset date. He has a general education diploma, which is the

7

The plaintiff’s brief points to Table 1, based on his contention that the ALJ improperly
found that he had a RFC of light work. The court rejected those arguments above.
16

equivalent of a high school diploma, meaning that Mr. Wilson is treated as a high
school graduate. See 34 C.F.R. § 600.2 (Department of Education defining a GED as
the equivalent of a high school diploma). Applying each of those factors to the grids,
whether Mr. Wilson’s skills were transferable would only determine whether Rule
202.14 or Rule 202.15 applies. Under either rule, the decision is the same–not
disabled. In other words, under Grid Rules 202.13 and 202.14, Mr. Wilson would still
be classified as not disabled. Thus, remand for such a harmless error, even assuming
arguendo that such an error exists, would be improper.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the decision of the Commissioner is supported by
substantial evidence and that he applied proper legal standards in arriving at it.
Accordingly, the decision will be affirmed by separate order.
DONE and ORDERED this the 5th day of August, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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