Roberts v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 2/27/2017. (KAM, )

FILED
2017 Feb-27 AM 11:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
BRANDON ROBERTS,
Plaintiff,

vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Civil Action Number
3:16-cv-00312-AKK

MEMORANDUM OPINION
Brandon Roberts 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 (“ALJ”) applied the correct legal
standards and that her 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

Roberts filed an application for Title II child’s disability insurance benefits
on October 20, 2008, alleging a disability onset date of May 12, 1985 due to vision
problems and asthma. (R. 196). The SSA determined Roberts to be disabled
beginning January 1, 2006, and awarded him benefits. (R. 83). On May 14, 2013,

the SSA conducted a continuing disability review, and determined that Roberts
was no longer disabled. (R. 84–90, 98–103). Roberts requested reconsideration,
but the SSA again found that Roberts was “not disabled.” (R. 104–09, 142).
Roberts subsequently requested a hearing before an administrative law judge
(“ALJ”), (R. 145), who also denied Roberts’s claim, (R. 15–26). The Appeals
Council denied review, (R. 1–7), rendering the ALJ’s opinion the final decision of
the Commissioner. Roberts then filed this action pursuant to § 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 § 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, 791 (11th Cir. 1988); Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). 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)).
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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 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

42 U.S.C. § 432(f) governs the termination of benefits, and provides that a
recipient of benefits
may be determined not to be entitled to such benefits on the basis of a
finding that the physical or mental impairment on the basis of which
such benefits are provided has ceased, does not exist, or is not
disabling only if such finding is supported by —
(1) substantial evidence which demonstrates that —
(A) there has been any medical improvement in the
individual’s impairment or combination of impairments
(other than medical improvement which is not related to
the individual’s ability to work), and
(B) the individual is now able to engage in substantial gainful
activity.

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42 U.S.C. § 423(f)(1). 1
The SSA uses an eight-step sequential analysis in determining whether to
terminate disability benefits. See 20 C.F.R. § 404.1594(f). Relevant here, the
inquiry involves ascertaining, among other things, (1) whether there has been
medical improvement, as defined in 20 C.F.R. § 404.1594(b)(1), and (2) whether
the “medical improvement . . . is related to [the claimant’s] ability to do work . . .
i.e., whether or not there has been an increase in the residual functional capacity
based on the impairment(s) that was present at the time of the most recent
favorable medical determination.”

§ 404.1594(f)(4).

Assuming the “medical

improvement is shown to be related to [the claimant’s] ability to do work or if one
of the . . . exceptions to medical improvement applies,” the SSA will ascertain
whether the claimant’s “current impairments in combination are severe.”

§

404.1594(f)(6). If the answer is yes, the SSA will “assess [the claimant’s] current
ability to do substantial gainful activity in accordance with § 404.1560.”

§

404.1594(f)(7). A claimant is no longer disabled if the SSA determines that he can
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“Medical improvement” is

any decrease in the medical severity of your impairment(s) which was present at
the time of the most recent favorable medical decision that you were disabled or
continued to be disabled. A determination that there has been a decrease in
medical severity must be based on changes (improvement) in the symptoms, signs
and/or laboratory findings associated with your impairment(s) . . . .
20 C.F.R. § 404.1594(b)(1). Medical improvement is sufficient to support a termination of
benefits only if the medical improvement results in an increase in the claimant’s ability to
perform basic work activities. 20 C.F.R. § 404.1594(b)(3).
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still do his past work. Id. However, if the claimant is unable to do his past work,
then the SSA will ascertain whether he can do other work “[g]iven the residual
functional capacity assessment and considering [the claimant’s] age, education,
and past work experience . . . .” § 404.1594(f)(8).
IV.

The ALJ’s Decision

The ALJ noted that, as of March 29, 2006 (the date of the most recent
favorable medical decision, i.e., the “comparison point decision” or “CPD”),
Roberts had the following medically determinable impairments:
nystagmus, ocular albinism, and borderline intellectual functioning.

congenital
(R. 20).

These impairments resulted in a non-exertional residual functional capacity with
the following additional limitations:
limited far acuity, limited depth perception, limited visual
accommodation, limited color vision, limited field of vision, must
avoid all exposure to hazards (including machinery, heights, etc.), no
commercial driving, capable of understanding and remembering
simple instructions, capable of performing simple tasks over an eighthour work day with routine breaks, capable of interacting
appropriately with coworkers, supervisors, and the general public, and
changes in the work place should be introduced slowly.
(Id.). Roberts did not develop additional impairments from the date of the CPD
through May 1, 2013, and did not engage in substantial gainful activity during that
period. (Id.) (citing 20 C.F.R. § 404.1594(f)(1)).
The ALJ found medical improvement as of May 1, 2013, and concluded that
Roberts no longer had an impairment or combination of impairments that met or
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medically equaled the severity of an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525 and 404.1526), because the medical
improvement increased Roberts’s residual functional capacity and, thus, Roberts’s
ability to work. (Id.). Specifically, as of May 1, 2013, Roberts had a nonexertional residual functional capacity with the following additional limitations:
no climbing of ladders, ropes and scaffolds; no exposure to
unprotected heights or dangerous machinery; no commercial driving;
no reading very small print (such as telephone book size print); no
work with very small objects (such as beads or threads); can
understand, remember and carry out simple instructions; limited to
jobs involving infrequent and well-explained workplace changes; and
can concentrate and remain on tasks for two hours at a time (sufficient
to complete an eight-hour workday).
(R. 21). Based on this residual functional capacity and the medical improvement,
the ALJ found that Roberts could perform his past relevant work as a cart
attendant. (R. 25). Accordingly, the ALJ concluded that Roberts’s disability
ended as of May 1, 2013. (R. 26).
V.

ANALYSIS

Roberts takes issue with the Commissioner’s finding that he is no longer
disabled. According to Roberts, the finding is flawed because the ALJ purportedly
failed to (1) properly evaluate the opinions of the consulting physicians and (2)
pose a complete hypothetical to the vocational expert. For the reasons below, the
court rejects each contention and affirms the ALJ’s decision.

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A. The ALJ properly evaluated the opinions of the consultative
examiners and the medical record.
Roberts’s primary argument of alleged error is that the ALJ improperly
focused on his improved “visual acuity,” rather than the permanency of his
underlying visual conditions, in finding medical improvement in Roberts’s
impairments. (Doc. 9 at 6). As a secondary argument, Roberts contends that the
ALJ failed to afford proper weight to the consultative examiners’ opinions. (Id. at
7). The court will address these arguments in turn.
To support his contention that the ALJ erred by finding medical
improvement, Roberts points out initially that in March 2006, Dr. Frank Gillis
determined that Roberts “would have difficulty being able to accomplish most job
requirements secondary to the visual deficits he has.” (R. 320). Next, Roberts
adds that Dr. Steve Sullins determined in May 2013 — i.e., as part of the SSA’s
reevaluation of Roberts’s claim — that Roberts “had ocular albinism and
congenital nystagmus with restricted eye muscle function,” (R. 349), “did not have
useful binocular vision in all directions for distance or near vision and . . . did not
have depth perception . . .,” (R. 349–51), and that these conditions were
“permanent.” (R. 350). In essence, Roberts claims that Dr. Sullins’s opinion
mirrors that of Dr. Gillis and refutes any contention that Roberts’s condition has
improved.

Roberts overlooks, however, that Dr. Sullins also reported

improvement in Roberts’s corrected vision. Specifically, at the time of the 2006
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comparison point decision, Roberts had corrected bilateral far and near vision of
20/70 and 20/40, respectively. (R. 21, 319). However, when Dr. Sullins examined
Roberts in 2013, Roberts’s corrected bilateral far and near vision had both
increased to 20/30. (R. 21, 349). This finding supports the ALJ’s conclusion of
medical improvement.
Despite the improved vision, Roberts contends that the proper inquiry is “not
whether [his] visual acuity has improved,” but whether his “vision has improved.”
(Doc. 9 at 6) (emphasis omitted). Roberts’s contention is unavailing because, as
the Commissioner states, a determination of “a decrease in medical severity [is]
based on changes (improvement) in the symptoms, signs and/or laboratory findings
associated with [the claimant’s] impairment(s).” (Doc. 10 at 5–6 (citing 20 C.F.R.
§§ 416.994(b)(1)(i), (2)(i))) (emphasis added).

Indeed, the ALJ can, in fact,

evaluate the improvement in symptoms because the purpose of a continuing
disability review is to discern any decrease in the severity of a claimant’s
symptoms that may increase his ability to work.

See 20 C.F.R. §§

416.994(b)(1)(iii), (2)(ii). See also Chereza v. Comm’r of SSA, 379 F. App’x 934,
940–41 (11th Cir. 2010) (substantial evidence supported ALJ’s finding of medical
improvement in claimant’s depression and anxiety, and cessation of disability
benefits, when a more recent evaluation showed those conditions were “controlled
by medications”); Edmundson v. Astrue, No. 8:10-cv-675-T-26TBM, 2011 U.S.
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Dist. LEXIS 98660, at *20 (M.D. Fla. Aug. 10, 2011), adopted by 2011 U.S. Dist.
LEXIS 98659 (M.D. Fla. Sept. 1, 2011) (“[T]he record adequately supports the
ALJ’s finding of medical improvement in [the claimant’s] disabling impairment
(coloboma with visual inattentiveness and/or blindness). While [the claimant] is
correct that coloboma is a permanent impairment, . . . medical improvement is
demonstrated by the . . . statement of [the claimant’s] pediatric ophthalmologist . . .
that [the claimant’s] visual acuity is corrected with glasses . . . .”). Moreover, in
addition to the documented improvement in Roberts’s vision, the ALJ also factored
in her determination evidence that Roberts is able to “handle all of his personal
care independently, clean his room and take out the garbage,” and to “read, draw
and watch television,” (R. 23 (citing R. 205–06)). Finally, the ALJ considered the
evidence that Roberts “has failed to follow up with his eye doctor as advised and
testified that he has not gotten new prescription glasses ‘in a long time’ (i.e. several
years) even though he had insurance coverage” and “‘forgot’ to wear his tinted
prescription glasses to the hearing.” (R. 23). See also (R. 37–41). For all of these
reasons, the court concludes that substantial evidence supported the ALJ’s finding
of medical improvement that increased Roberts’s ability to work.
Roberts next contends that the ALJ erred by affording little weight to Dr.
Gillis’s 2006 opinion and failing to specify the weight she afforded to Dr. Sullins’s
opinion. (Doc. 9 at 7). These contentions fail because, first, the ALJ was not
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required to give any particular deference to the opinions of these two consulting
physicians. See Meade v. Astrue, No. 8:09-cv-02027-T-27AEP, 2010 U.S. Dist.
LEXIS 139669, at *10 (M.D. Fla. Dec. 17, 2010), adopted by 2011 U.S. Dist.
LEXIS 3473 (M.D. Fla. Jan. 13, 2011) (quoting Kirby v. Astrue, 500 F.3d 705, 709
(8th Cir. 2007)) (“[A] consulting physician’s opinion ‘deserves no special
weight.’”); 20 C.F.R. § 404.1527(d)(2) (“Generally, we give more weight to
opinions from your treating sources, since these sources are likely to [be] able to
provide a detailed, longitudinal picture of your medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be obtained from . .
. reports of individual examinations, such as consultative examinations or brief
hospitalizations.”). Cf. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986) (an ALJ “must specify what weight is given to a treating physician’s opinion
and any reason for giving it no weight”) (emphasis added). Second, the ALJ
explained her reasons for not giving weight to Dr. Gillis’s 2006 opinion, i.e., that it
was not consistent with the more recent evidence (Dr. Sullins’s May 2013
evaluation) which showed improvement in Roberts’s ability to see. (R. 24). See
Polk v. Colvin, No. 4:12-cv-1957-LSC, 2013 U.S. Dist. LEXIS 112454, at **8–10
(N.D. Ala. Aug. 9, 2013) (ALJ did not err by giving more weight to opinion of
more recent examiner, when both physicians performed one-time consultative
examinations). Finally, while the ALJ did not explicitly articulate the weight she
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gave to Dr. Sullins’s opinion, Roberts does not explain how this purported error
affected the administrative result or otherwise prejudiced him. See Sanchez v.
Comm’r of Soc. Sec., 507 F. App’x 855, 856 (11th Cir. 2013) (“We have . . .
declined to remand for express findings when doing so would be a wasteful
corrective exercise in light of the evidence of record and when no further findings
could be made that would alter the ALJ’s decision.”) (quotation marks omitted);
Wright v. Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005) (“Although the ALJ
did not explicitly state what weight he afforded the opinions of [particular
physicians], none of their opinions directly contradicted the ALJ’s findings, and,
therefore, any error regarding their opinions is harmless.”).
Because the record as a whole supports a finding that Roberts’s vision had
improved (and therefore his residual functional capacity had increased), and in
light of Roberts’s failure to show how the ALJ’s failure to afford particular weight
to the consultative physicians’ opinions was erroneous or prejudiced him, the court
finds that the ALJ applied the proper legal standards and/or did not commit
reversible error.
B. The ALJ posed an adequate hypothetical question to the vocational
expert.
As his final contention of error, Roberts claims that the ALJ erred by failing
to “pose a complete hypothetical question to the vocational expert which
include[d] all of [Roberts’s] limitations.” (Doc. 9 at 7). Allegedly, the ALJ’s
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question 2 failed to account for Roberts’s rapid eye movement, lack of “useful
binocular vision,” and lack of “depth perception.” (Doc. 9 at 8). 3 Roberts is
indeed correct that the ALJ “must pose a hypothetical question which comprises all
of a claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.
2002).

However, “[t]he hypothetical need only include the claimant’s

impairments, not each and every symptom of the claimant.” Ingram v. Comm’r of
SSA, 496 F.3d 1253, 1270 (11th Cir. 2007) (emphasis added). The court finds no
error here, because “[a] hypothetical question may be adequate where it implicitly
accounts for the claimant’s limitations.” Beegle v. SSA, 482 F. App’x 483, 487
(11th Cir. 2012). While the ALJ’s question did not explicitly mention Roberts’s
rapid eye movement, binocular vision, or depth perception, the question accounted
for Roberts’s limited ability to read very small print and handle very small objects,
2

The question stated:

Let’s assume we have a hypothetical individual, the claimant’s education, training
and work experience and we’ll do this for Mr. Alpha. He has no exertional
limitations except would need to avoid – there’d be no climbing of ropes, ladders
or scaffolds. No unprotected heights. Would need to avoid dangerous, moving,
unguarded machinery. No commercial driving. No reading of telephone book
size print. No work with various small objects such as beads or threads and
would be limited to unskilled work where he would be limited to jobs involving
infrequent and well explained work place changes. Would Mr. Alpha be able to
perform any of the past relevant work?
(R. 48).
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Although the ALJ did not include these symptoms in the hypothetical question she
posed to the vocational expert, she otherwise considered them. See (R. 21) (“[T]he claimant’s
eye muscle function remains restricted due to his impairments, he does not have useful binocular
vision even with glasses and he lacks depth perception.”).
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and stated that Roberts could not be exposed to unprotected heights or dangerous
machinery or drive a commercial vehicle. (R. 21). As posed, the ALJ’s question
at least implicitly accounted for Roberts’s rapid eye movement and lack of
binocular vision and depth perception. Accordingly, the court finds that the ALJ
did not ask an incomplete question.
VI.

CONCLUSION

Based on the foregoing, the court concludes that the ALJ’s determination
that Roberts is no longer disabled and has the RFC to perform light or medium
unskilled work 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. The court will enter a separate
order in accordance with this Memorandum Opinion.
DONE the 27th day of February, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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