Kent v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION Signed by Judge L Scott Coogler on 08/07/2013. (MSN)

FILED
2013 Aug-07 PM 12:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
BOBBY DUANE KENT
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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4:12-CV-0917-LSC

MEMORANDUM OPINION
I.

Introduction
The plaintiff, Bobby Duane Kent, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying his
application for a period of disability, Supplemental Security Income (“SSI”) and
Disability Insurance Benefits (“DIB”). Mr. Kent 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. Kent was forty years old at the time of the Administrative Law Judge’s
(“ALJ’s”) decision. (Tr. at 21-30, 72, 139.) He has a ninth grade education and has
been trained to drive a tractor-trailer. (Tr. at 73-74.) His past work experiences include

employment as a truck driver and driver trainer. (Id.) Mr. Kent claims that he became
disabled on April 24, 2009, due to obesity, an umbilical hernia, depression, and sleep
apnea. (Tr. at 163.)
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. Kent meets
the nondisability requirements for a period of disability and DIB and was insured
through the date of his decision. (Tr. at 23.) He further determined that Mr. Kent has
not engaged in substantial gainful activity since the alleged onset of his disability. (Id.)
According to the ALJ, Plaintiff’s morbid obesity, recurrent inguinal hernias,

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obstructive sleep apnea, chronic obstructive pulmonary disease secondary to morbid
obesity and tobacco abuse, depression, and a narcissistic personality disorder are
considered “severe” based on the requirements set forth in the regulations. (Id.)
However, the ALJ found that these impairments neither meet nor medically equal any
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 24.)
The ALJ determined that Mr. Kent has the RFC to perform sedentary work with the
following additional limitations:
The claimant can perform work with no operation of foot or leg controls
or pedals, and no repetitive overhead reaching or lifting; the claimant
may occasionally climb, balance or stoop, but should never kneel or
crawl; the claimant should avoid concentrated exposures to extreme
heat, humidity, dust fumes, noxious odors and other pulmonary irritants;
the claimant should avoid unprotected heights and should not operate
dangerous machinery; the claimant should avoid operating a motor
vehicle as part of his work duties; and contact with his co-workers,
supervisors and the general public should be brief and casual.
(Tr. at 26.)
According to the ALJ, Mr. Kent is unable to perform any of his past relevant
work, he is a “younger individual,” and he has a “limited education,” as those terms
are defined by the regulations. (Tr. at 29.) The ALJ determined that “transferability
of job skills is not material to the determination of disability because . . . the claimant
is ‘not disabled,’ whether or not the claimant has transferable job skills.” (Id.) The

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ALJ found that Mr. Kent has the residual functional capacity to perform a significant
range of sedentary work. (Id.) Even though Plaintiff cannot perform the full range of
sedentary work, the ALJ used Medical-Vocation Rule 201.25 as a guideline for finding
that there are a significant number of jobs in the national economy that he is capable
of performing, such as assembler, table worker, and surveillance system monitor. (Tr.
at 30.) The ALJ concluded his findings by stating that Plaintiff “was not under a
‘disability,’ as defined in the Social Security Act, at any time through the date of this
decision.” (Id.)
II.

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
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

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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
apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748
F.2d 629, 635 (11th Cir. 1984.)
III.

Discussion
Mr. Kent alleges that the ALJ’s decision should be reversed and remanded for

two reasons. First, he believes that the ALJ failed to properly consider the combined
effect of his impairments. (Doc. 8 at 4.) Second, Plaintiff contends that the ALJ did
not give proper weight to his therapist’s opinion. (Doc. 8 at 8.)

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A.

Combination of Impairments

Plaintiff contends that the ALJ failed to properly consider the combined effects
of his multiple impairments. (Doc 8 at 6.) Specifically, he argues that the ALJ did not
take Plaintiff’s obesity into consideration when determining whether Plaintiff’s
impairments met or equaled a listed impairment. Social Security regulations require
the ALJ to consider the combined effects of all impairments in evaluating disability:
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard
to whether any such impairment, if considered separately, would be of
sufficient severity. If we do find a medically severe combination of
impairments, the combined effect of the impairments will be considered
throughout the disability determination process. If we do not find that
you have a medically severe combination of impairments, we will
determine that you are not disabled.
20 C.F.R. § 404. 1523; see also Swindel v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990).
When a combination of impairments exists, a plaintiff may be found disabled, even
though none of the individual impairments, including pain, is disabling. Walker v.
Bowen, 826 F.2d 996, 1001 (11th Cir. 1987).
The Eleventh Circuit has held that the following statement made by an ALJ:
“[B]ased upon a thorough consideration of all evidence, the ALJ concludes the
appellant is not suffering from any impairment, or combination of impairments of
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sufficient severity to prevent him from engaging in any substantial gainful activity for
a period of at least twelve continuous months,” is sufficient evidence of proper
consideration of the claimant’s combined impairments. Wheeler v. Heckler, 784 F.2d
1073, 1076 (11th Cir. 1987). See also Jones v. Department of Health and Human Servs.,
941 F.2d 1529, 1553 (11th Cir. 1991) (holding that ALJ’s statement that though
claimant “‘has severe residuals of an injury’ he does not have ‘an impairment or
combination of impairments listed in, or medically equal to one listed in Appendix 1,
Subpart P, Regulation No. 4'” to be sufficient evidence of combined impairment
consideration).
In the instant case, the ALJ stated, “even when the effects of the claimant’s
conditions are considered singly and in combination, the record does not establish that
the claimant is subject to an impairment or combination of impairments that meets or
equals the requirements of any section of the Listings of Impairments in 20 CFR,
Subpart P, Appendix 1, Regulation Number 4.” (Tr. at 24.) This language alone is
sufficient to demonstrate that the ALJ properly considered Plaintiff’s combined
impairments. See Wheeler, 784 F.2d 1076; Jones, 941 F.2d 1553.
Further, and contrary to Plaintiff’s assertion, the ALJ specifically found that
Plaintiff’s obesity was a severe impairment. (Tr. at 23, finding 3.) The ALJ also

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explicitly stated that he considered Plaintiff’s obesity in conjunction with his other
impairments, noting, “The undersigned has considered Social Security Ruling 02-1p,
. . . which states that an individual with obesity will be found to meet the requirements
of a listing if there is an impairment that, in combination with obesity, meets the
criteria of a listing.” (Tr. at 24.) The ALJ went on to thoroughly discuss the
limitations caused by Plaintiff’s obesity and its effects in detail. The ALJ stated that
Plaintiff’s obesity is not so severe as to preclude all ambulation, reaching, orthopaedic
and postural maneuvers. (Id.) He noted that Plaintiff’s obesity did, however, “in
combination with his other conditions, significantly reduce his ability to stand and
walk, to stoop or bend, to perform reaching maneuvers with his upper extremities and
to maintain postures without the need for alteration.” (Id.) He also stated, in
considering Plaintiff’s overall condition, including his obesity, that Plaintiff was to
avoid concentrated exposure to extremes in heat, humidity, dust, fumes, noxious
odors and other pulmonary irritants. (Tr. at 26.) The ALJ’s findings concerning the
limitations caused by Plaintiff’s obesity clearly indicate that the ALJ properly took
Plaintiff’s obesity into account when considering whether Plaintiff met the criteria for
a listing. Plaintiff has failed to show that the ALJ’s consideration of his obesity was
inadequate, and he failed to show that his condition, including his obesity, prevented

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him from performing the range of sedentary work delineated by the ALJ. (Tr. at 26,
finding 5.)
B.

Weight Given to Plaintiff’s Therapist

Plaintiff argues that the ALJ failed to accord appropriate weight to the opinion
of his therapist, Ms. Susan Brunson, a licensed clinical social worker. Specifically,
Plaintiff complains that the ALJ did not give sufficient weight to Ms. Brunson’s
opinion that he would neither be able to “obtain a full time job, nor maintain a job”
and that he suffers from major depression, posttraumatic stress disorder, panic
disorder and generalized anxiety disorder. (Tr. at 289-90.)
When discussing the weight the ALJ assigned to Ms. Brunson’s testimony, the
Court first must be mindful of the fact that opinions regarding whether a claimant is
disabled, the claimant’s residual functional capacity, and the application of vocational
factors “are not medical opinions, . . . but are, instead, opinions on issues reserved for
the Commissioner because they are administrative findings that are dispositive of a
case; i.e., that would direct the determination or decision of disability.” 20 C.F.R. §§
404.1527(e), 416.927(d.) Such statements by a physician are relevant to the ALJ’s
findings, but they are not determinative, as it is the ALJ who bears the responsibility
for assessing a claimant’s residual functional capacity. See, e.g., 20 C.F.R. §

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404.1546(c).
Accordingly, it was entirely proper for the ALJ to reject Ms. Brunson’s opinion
that Plaintiff was unable to hold a meaningful job because this question was reserved
for the Commissioner. The ALJ has the responsibility of determining whether Plaintiff
was able to work, and therefore, Ms. Brunson’s opinion regarding the issue was not
entitled to special significance or controlling weight. See Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997.)
Furthermore, Ms. Brunson is not an acceptable medical source as defined in
agency regulations; therefore, the ALJ was not required to give her opinion the same
consideration he would be required to give to a treating physician’s opinion. The
Code of Federal Regulations distinguishes between opinions from “acceptable
medical sources” and those from “other sources.” The code sets forth guidelines
which the Commissioner must follow when weighing conflicting opinions from
acceptable medical sources, while it contains no specific guidelines for the weighing
of opinions from other sources. See 20 C.F.R. §§ 404.1513(a) and (e), 416.913(a) and
(e). This omission permits the Commissioner to accord opinions from other sources
less weight than opinions from acceptable medical sources. Gomez v. Chater, 74 F.3d
967 (9th Cir. 1996.)

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As Ms. Brunson is a licensed clinical social worker, she is classified as an “other
source” rather than an “acceptable medical source.” See 20 C.F.R. § 404.1513.(a),
(d)(1), 416.913(a), (d)(1). Therefore, the ALJ properly did not afford Ms. Brunson’s
testimony the same weight he might have afforded a treating physician.
Even if Ms. Brunson was “an acceptable medical source” as defined by agency
standards, the ALJ’s decision not to afford Ms. Brunson’s opinion controlling weight
would be proper. An ALJ may refuse to give “substantial or considerable weight” to
a treating physician’s opinion if “‘good cause’ is shown to the contrary.” Crawford
v. Comm’r of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Lewis, 125
F.3d at 1140.) There are a variety of reasons an ALJ may find “good cause” to give
less weight to a treating physician’s opinion, such as: “(1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary finding;
or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004)
(citing Lewis, 125 F.3d at 1140); see also Edwards v. Sullivan, 937 F.2d 580, 583-84
(11th Cir. 1991) (holding that “good cause” existed where the opinion was
contradicted by other notations in the physician’s own record.).
The ALJ articulated “good cause” for discounting Ms. Brunson’s opinions,

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including: (1) the treatment plan Ms. Brunson developed for the plaintiff was
inconsistent with her diagnosis and assessment of the plaintiff’s condition; (2) Ms.
Brunson’s opinion was inconsistent with the opinion of the consultative examining
physician, June Nichols, Psy. D.; and (3) Plaintiff’s daily activities were inconsistent
with Ms. Brunson’s findings and undermined Ms. Brunson’s opinions. (Tr. at 243.)
The record supports the ALJ’s conclusion that Ms. Brunson’s treatment plan
conflicted with her opinion concerning Plaintiff’s ability to hold a job. Although in the
support letter and assessment Ms. Brunson submitted to the Department of Disability
Services on May 23, 2011, she reported that the plaintiff was functionally impaired at
a level of “marked to extreme” in all daily activities and unable to hold a job, the
treatment plan Ms. Brunson created on June 13, 2011, portrayed Plaintiff’s condition
as being significantly less severe. (Tr. at 289-93, 315.) In the treatment plan, Ms.
Brunson set a goal that the plaintiff’s depressive and anxious symptoms cease to
impair his ability to function by September 21, 2011. (Tr. at 315.) This goal indicates
that Ms. Brunson believed that if the plaintiff followed the prescribed course of
treatment, he would be capable of making a complete recovery within six months of
beginning treatment. The ALJ correctly noted that the time frame given by Ms.
Brunson’s treatment goals indicated that the impairment did not meet the durational

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requirement that the impairment must last or be expected to last for at least 12
months. See 20 C.F.R. §§ 404.1522; 416.922 (stating that an impairment or
combination of impairments must last or be expected to last for at least 12 months to
be considered a disability).
The ALJ also correctly rejected Ms. Brunson’s opinion because it was
inconsistent with the opinion of Dr. Nichols, who examined Plaintiff on November 24,
2009, at the request of Disability Determination Services. While Ms. Brunson
indicated that Plaintiff’s limitations were “marked” to “extreme,” Dr. Nichols
indicated that Plaintiff’s limitations were significantly less severe. Dr. Nichols
concluded that while the plaintiff had many characteristics commonly found in
individuals with narcissistic personality disorder, Plaintiff’s mental condition only
“mildly compromised” his ability to relate interpersonally and withstand the
pressures of every day-work. (Tr. at 244.) Dr. Nichols also found that Plaintiff did not
have disabilities that would interfere with his ability to remember, understand, or carry
out work-related instructions, manage his own funds, or live independently. (Id.)
Finally, the ALJ acted properly when he considered the range of Plaintiff’s daily
activities as grounds for rejecting Ms. Brunson’s opinion. For example, Plaintiff told
Dr. Nichols that he cared for his dogs, cooked, watched television, talked on the

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phone, listened to music, and had friends with whom he socialized regularly. (Id.)
While these activities are not alone sufficient to find Plaintiff not disabled and capable
of working, see Dyer v. Barnhart, 395 F.3d 1206 (11th Cir. 2005) (holding that using a
plaintiff’s activities as grounds for discrediting his claim of disability is permissible so
long as other medical evidence is also considered), an ALJ may properly consider a
plaintiff’s activities together with the other evidence in accordance with the
regulations, SSR 96-7p, and Eleventh Circuit case law.

See 20 C.F.R. §

416.29(c)(3)(I). The ALJ did that here. (Tr. at 23-28.) In sum, based on the
aforementioned reasons, the ALJ afforded Ms. Brunson’s opinions proper weight.
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr. Kent’s

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law. A separate order will be entered.
Done this 7th day of August 2013.

L. Scott Coogler
United States District Judge
[160704]

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