Rollins v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/22/2014. (JLC)
2014 Jul-22 PM 05:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
) Case No.: 4:13-CV-1979-VEH
CAROLYN COLVIN, ACTING )
COMMISSIONER, SOCIAL )
Plaintiff Michael Wayne Rollins (“Mr. Rollins”) 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 Supplemental Security Income
(“SSI”).1 Mr. Rollins timely pursued and exhausted his administrative remedies
available before the Commissioner. The case is thus ripe for review under 42 U.S.C.
In general, the legal standards applied are the same regardless of whether a claimant seeks
SSI or Disability Insurance Benefits (“DIB”). However, separate, parallel statutes and regulations
exist for SSI and DIB 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.
FACTUAL AND PROCEDURAL HISTORY
Mr. Rollins was 45 years old at the time of his hearing before the
Administrative Law Judge (“ALJ”). (Tr. 35). He has completed the seventh grade.
(Tr. 53). His past work experience includes employment as a truck driver and treecutter. (Tr. 39). He first claimed he became disabled on January 1, 2002, but, on May
8, 2012, amended his claim to state that he became disabled on June 1, 2011, due to
chronic obstructive pulmonary disease (“COPD”), back pain, carpel tunnel syndrome,
osteoporosis, migraines, and bipolar disorder with psychotic features. (Tr. 36, 148).
His last period of work ended in the second quarter of 2011. (Tr. 140).
On April 15, 2010, Mr. Rollins protectively filed a Title XVI application for
SSI. (Tr. 20). On October 19, 2010, the Commissioner initially denied this claim. Id.
Mr. Rollins timely filed a written request for a hearing on November 5, 2010. Id. The
ALJ conducted a hearing on the amended claim on May 8, 2012. Id. On June 12,
2012, he issued his opinion concluding Mr. Rollins was not disabled and denying him
benefits. (Tr. 28). Mr. Rollins timely petitioned the Appeals Council to review the
decision on July 9, 2012. (Tr. 14). On August 23, 2013, the Appeals Council issued
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.
a denial of review on his claim. (Tr. 1).
Mr. Rollins filed a Complaint with this court on October 25, 2013, seeking
review of the Commissioner’s determination. (Doc. 1). The Commissioner answered
on February 19, 2014. (Doc. 8). Mr. Rollins filed a supporting brief (Doc. 11) on
April 14, 2014, the Commissioner responded with her own (Doc. 12) on May 13,
2014, and Mr. Rollins filed a reply brief (Doc. 13) on May 19, 2014. 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
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 supplemental security income, 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
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499, revised as of June 26, 2014.
and laboratory 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
whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
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
in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After his review of the record, the ALJ made the following findings:
Mr. Rollins had not engaged in substantial gainful activity (“SGA”)
since June 1, 2011, the alleged disability onset date.
Mr. Rollins had the following severe impairments: chronic obstructive
pulmonary disease; degenerative joint disease of the thoracic spine;
degenerative joint disease of the lumbar spine; osteoarthritis; status post
fracture of the right wrist; migraine headaches; and low average
Mr. Rollins 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.
Mr. Rollins had the residual functioning capacity (“RFC”) to perform
light work as defined in 20 C.F.R. § 416.967(b), with abilities,
limitations, and restrictions to include the following: occasionally climb
ramp and stairs; frequently balance, stoop, kneel, and crouch;
occasionally crawl; no exposure to ladders, ropes, or scaffolds; avoid
concentrated exposure to extreme heat, extreme cold, and irritants; avoid
all hazardous machinery and unprotected heights; limited to simple,
unskilled work; occasional interaction with coworkers and supervisors;
and instructions must be given without the requirement of reading.
Mr. Rollins was unable to perform any past relevant work.
Mr. Rollins was 44 years old, which is defined as a younger individual
age 18-49, on his alleged disability date.
Mr. Rollins had limited education and was able to communicate in
Transferability of job skills was not an issue because Mr. Rollins’s past
relevant work was unskilled.
Considering Mr. Rollins’s age, education, work experience, and residual
functioning capacity, there were jobs that existed in significant numbers
in the national economy that he could perform.
Mr. Rollins had not been under a disability, as defined in the Social
Security Act, from June 1, 2011, through the date of this decision.
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. Rollins urges this court to reverse the Commissioner’s decision to deny his
benefits on these grounds:
(1) the ALJ had a duty to order a consultative psychiatric examination;
(2) the ALJ substituted his opinion for that of Mr. Rollins’s treating
(3) the ALJ’s finding that Mr. Rollins had SGA as a truck driver was not
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).
supported by substantial evidence;
(4) the ALJ’s determination of Mr. Rollins’s RFC and the denial of
benefits were not supported by substantial evidence;
(5) the ALJ’s finding that Mr. Rollins is not credible was neither
supported by substantial evidence nor adequately explained.
(Doc. 11 at 2).The court rejects these grounds for appeal, and instead finds that the
ALJ applied the proper legal standards and that his decision was supported by
The ALJ Was Not Required To Order A Second Consultative Psychiatric
The ALJ’s duty to develop the record encompasses an obligation to order a
consultative evaluation “when the evidence as a whole is insufficient to allow [the
Commissioner] to make a determination or decision on [the] claim.” 20 C.F.R §
404.1519a(b). When the record does contain sufficient evidence to make an informed
decision, the ALJ is not required to order a consultative examination. See Holladay
v. Bowen, 848 F.2d 1206, 1210 (11th Cir. 1988) (“[T]he [ALJ] is not required to order
a consultative examination unless the record establishes that such an examination is
necessary to enable the [ALJ] to render a decision.” (citing Ford v. Secretary of
The undersigned has rendered a comparable decision from which the framework, analysis,
and disposition of this section, in part, persuasively flow. See Kyle v. Colvin, No. 4:12-CV-03556VEH, 2013 WL 6800631, at *6 (N.D. Ala. Dec. 20, 2013).
Health & Human Servs., 659 F.2d 66, 69 (5th Cir. 1981))). Sufficient evidence does
not mean “absolute certainty” regarding a claimant’s condition; the Social Security
Act “requires only substantial evidence.” Id. at 1210.
Mr. Rollins argues that the administrative record does not contain sufficient
evidence for the ALJ to have made an informed decision regarding his diagnosis of
bipolar disorder, and that the ALJ should have ordered an additional consultative
examination to properly assess that condition. (Doc. 11 at 15). This court disagrees.
The ALJ addressed Mr. Rollins’s bipolar diagnosis, stating:
In addition to alcohol abuse, the claimant has been diagnosed with
bipolar disorder ... There is no indication that the bipolar disorder has
lasted, or [is] expected to last, for 12 months therefore it does not meet
the 12 month durational requirement ... Moreover, the consultative
examiner did not diagnose the bipolar disorder in September 2010. In
addition, neither has resulted in documented impairment-caused
limitation of function and they are, therefore, nonsevere impairments as
a matter of law.
(Tr. 23) (citations omitted). The ALJ’s decision to accord more weight to the
evidence which shows Mr. Rollins’s bipolar disorder to be insufficient in duration
and non-severe, including the reliance on an examining psychologist’s opinion, was
supported by substantial evidence.
This case is distinguishable from the decisions cited in Mr. Rollins’s brief.
(Doc. 11 at 15-17). For example, no medical source indicated that further testing or
examination was necessary to evaluate Mr. Rollins’s mental condition, unlike the
situation in Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984) (“[T]he ALJ
failed to order a consultative examination by an orthopedist even though the SSA’s
consulting doctor recommended such an examination. ”). Also, the ALJ addressed
Mr. Rollins’s bipolar disorder and explained his reasons for finding the impairment
to be non-severe, unlike in Ford, 659 F.2d at 69 (“The [ALJ] failed to make an
express factual finding with regard to the severity of appellant’s alleged mental
impairment and failed to specify his reasons for denying appellant’s request for a
consultative psychiatric examination ... the [ALJ] failed to fulfill his duty.”).
Mr. Rollins’s citation to Holladay is puzzling because the Eleventh Circuit
actually upheld the ALJ’s refusal to order a new examination, finding that substantial
evidence supported the ALJ’s conclusion, and that insisting upon absolute certainty
was inconsistent with the substantial evidence standard. See Holladay 848 F.2d at
1210 (“Yet the statute does not require absolute certainty; it requires only substantial
evidence ... the absence of an arteriogram did not render the ALJ incapable of making
an overall disability determination.”).
Finally, while Mr. Rollins is correct that the Eleventh Circuit requires an ALJ
to make “every reasonable effort” to obtain the opinion of “a qualified psychiatrist or
psychologist” if there is evidence indicating the existence of a mental impairment,
McCall v. Bowen, 846 F.2d 1317, 1320 (11th Cir. 1988), the ALJ already did just that
in this case, through the report of Dr. June Nichols (“Dr. Nichols”), the first
consultative examiner. Because of this sufficient development of the record, the ALJ
was under no obligation to order a second consultative examination.
The ALJ Did Not Improperly Disregard The Opinion Of Mr. Rollins’s
An ALJ must accord the opinion of a treating physician “substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Phillips v.
Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2003). Furthermore, an ALJ “must clearly
articulate the reasons for giving less weight to the opinion of a treating physician, and
the failure to do so is reversible error.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
“Treating source” is defined at 20 C.F.R. § 416.902:
Treating source means your own physician ... who provides you, or has
provided you, with medical treatment or evaluation and who has, or has
had, an ongoing treatment relationship with you ...We may consider an
acceptable medical source who has treated or evaluated you only a few
times or only after long intervals ... if the nature and frequency of the
treatment or evaluation is typical for your condition(s).
Id. Although there is no specific number of times that a claimant must visit a
physician for that doctor to be a treating source, the relationship must be or have been
ongoing; a single meeting cannot be sufficient. See T.R.C. ex rel. Boyd v.
Commissioner, Social Sec. Admin., 553 F. App’x 914, 917 (11th Cir. 2014) (“The
examiners ... met with T.R.C. on only one occasion, and did not have any ‘ongoing
treatment relationship’ with her sufficient to accord them status as treating
physicians.”); see also Chaney-Everett v. Astrue, 839 F. Supp. 2d 1291, 1303 (S.D.
Fla. Mar. 6. 2012) (holding that a doctor who saw the claimant twice had no ongoing
treatment relationship). The court’s own research has been unable to find a published
Eleventh Circuit ruling on this issue, but finds these opinions persuasive, as they are
supported by the reasoning underlying the deference to treating physicians. See 20
C.F.R. § 416.927(d)(2)(I) (“When a treating source has seen you a number of times
and long enough to have formed a longitudinal picture of your impairment, we will
give the source’s opinion more weight than we would give it if it were from a nontreating source.”). The regulation assumes that a treating source will have seen a
claimant “a number of times” rather than just once; a “longitudinal picture” is
impossible to achieve with only a single examination. Id.
Mr. Rollins identifies Dr. Pat Herrera (“Dr. Herrera”) as his treating physician,
and argues that the ALJ improperly disregarded his medical opinion. (Doc. 11 at 18).
The administrative record, however, contains only one report relating to Dr. Herrera,
which contains no indication of how many times Dr. Herrera saw Mr. Rollins, and
which fails to substantiate an ongoing relationship. (Tr. 278). Furthermore, that report
is merely a form document filled out by Dr. Herrera for the purpose of Mr. Rollins’s
disability claim, indicating a lack of a serious, ongoing treatment relationship. See 20
C.F.R. § 416.902 (“We will not consider an acceptable medical source to be your
treating source if your relationship with the source is based ... solely on your need to
obtain a report in support of your claim for disability.”); see also Robinson v. Astrue,
No. 2:09-CV-01862-VEH, (Doc. 12 at 9) (N.D. Ala. Oct. 29, 2010) (“[T]he ALJ
discredited Dr. Elrefai’s opinion because it was a pre-printed form in which Dr.
Elrefai...checked boxes.”). Despite this issue being raised by the Commissioner in her
brief (Doc. 12 at 8), Mr. Rollins did not present any other evidence or arguments to
show an ongoing treatment relationship with Dr. Herrera in his reply brief. (Doc. 13).
Thus, Dr. Herrera cannot be classified as Mr. Rollins’s treating physician, and
the ALJ did not have a heightened duty to articulate his reasons for partially
discounting Dr. Herrera’s opinion. As there is no special deference due to Dr.
Herrera’s opinion as a non-treating physician, the ALJ’s reasoning for partially
discounting Dr. Herrera’s opinion was sufficient and based on substantial evidence.
Alternatively, even if Dr. Herrera is considered to be Mr. Rollins’s treating
physician, the ALJ provided good grounds to discount Dr. Herrera’s opinion. See
Lewis, 125 F.3d at 1440 (“We have found ‘good cause’ [to disregard a treating
source] to exist where the doctor’s opinion was not bolstered by the evidence, or
where the evidence supported a contrary finding.”). The ALJ explained the limited
weight he accorded to Dr. Herrera’s opinion, stating:
Partial weight is also given to Dr. Herrera because the claimant’s
activities of daily living mowing and tree cutting rule out limits in
pushing/pulling as indicated by the doctor on the form he completed for
the claimant’s attorney. However, as noted above, neither the diagnostic
imaging nor the claimant’s treatment records support Dr. Herrera’s
findings that the claimant suffers pain such that he would be unable to
engage in competitive work.
(Tr. 26). The ALJ’s explanation for only partially crediting Dr. Herrera’s opinion is
consistent with the Eleventh Circuit’s treating physician rule and does not warrant
reversal on appeal.
The ALJ’s Finding Of Mr. Rollins’s SGA As a Truck Driver, If Error,
The ALJ found that Mr. Rollins had SGA as a truck driver prior to his amended
onset date, but ultimately determined that he did not have the RFC to perform that
work. (Tr. 26). The ALJ also mentioned Mr. Rollins’s experience as a truck driver in
his hypothetical question to the vocational expert (“VE”), but the potential jobs
identified by the VE (e.g. silverware wrapper) were all unskilled, and did not depend
upon Mr. Rollins’s experience as a truck driver. (Tr. 64-65). Because the ALJ’s
reference to Mr. Rollins’s SGA as a truck driver did not materially affect the VE’s
opinion or the ALJ’s decision to deny benefits, that potential error is not a cause for
reversal. See Battle v. Astrue, 243 F. App’x 514, 522 (11th Cir. 2007) (“Even though
the hypothetical made Battle seem more educated than he actually is, the mistake is
harmless because it did not affect the VE’s conclusion.”); see also Caldwell v.
Barnhart, 261 F. App’x 188, 190 (11th Cir. 2008) (“When, however, an incorrect
application of law results in harmless error because the correct application would not
contradict the ALJ’s ultimate findings, the ALJ’s decision will stand.” (citing Dioro
v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983))). Thus, consistent with Battle,
Caldwell, and Dioro, to the extent that the ALJ incorrectly found that Mr. Rollins had
SGA as a truck driver, such error was harmless and does not support a reversal of the
The ALJ’s Assessment Of Mr. Rollins’s RFC Was Based On Substantial
Evidence And His Questions To The Vocational Expert Based Upon That
RFC Were Without Error.
Mr. Rollins contends that the RFC determined by the ALJ is not supported by
substantial evidence because it does not reflect the bipolar disorder diagnosis by the
C.E.D. Mental Health Center (the “CED”) (Tr. 269) and certain physical limitations
indicated by Dr. Herrera (Tr. 276) (Doc. 11 at 26). Specifically, Mr. Rollins suggests
that the functional capacity evaluation completed by Single Decisionmaker Alvin
Rowell (“Mr. Rowell”) (Tr. 73) and the psychiatric review by Dr. Robert Estock (“Dr.
Estock”) (Tr. 239) cannot constitute substantial evidence in support of the ALJ’s RFC
determination because the subsequent evaluations of Mr. Rollins by the CED and Dr.
Herrera invalidate those underlying pieces of evidence. (Doc. 11 at 27).
Turning first to Mr. Rollins’s mental RFC, the ALJ addressed the bipolar
disorder diagnosis by the CED, and adequately explained that any impairment from
that condition did not meet the durational or severity requirements (Tr. 23), as
discussed supra at 8-11. The ALJ explained that the psychiatric review by Dr. Estock,
which did not incorporate the CED evaluation, was “consistent with the weight of the
evidence which shows no previous diagnosis of mental impairment and treatment
until March 2012.” (Tr. 26). Additionally, the ALJ relied partially upon Dr. Nichols’s
consultative examination and opinion, which lacked a diagnosis of bipolar disorder
and indicated that Mr. Rollins’s mental impairments would not prevent him from
“remember[ing], carry[ing] out, and understand[ing] work instructions.” (Tr. 26, 23638). Further, Dr. Nichols is a clinical psychologist (Tr. 238), whereas the evaluation
from the CED was conducted by a non-doctor therapist on March 2, 2012, whose
report was then approved by a “Medical Doctor or Licensed Psychologist” on March
9, 2012. (Tr. 269, 275).
More specifically, psychologists are listed as “acceptable medical sources”
who can “establish whether you have a medically determinable impairment(s).” 20
C.F.R. § 416.913(a)(2). Therapists, on the other hand, are categorized as “other
sources” who can show “the severity of your impairment(s) and how it affects your
ability to work.” 20 C.F.R. § 416.913(d)(1).
The expertise of the person who actually performed the examination of the
claimant is critical to the value of that resulting report. Cf. 20 C.F.R. § 416.919n(e)
(“All consultative examination reports will be personally reviewed and signed by the
medical source who actually performed the examination.”). Thus, the ALJ was
entitled to accord more weight to Dr. Nichols’s medical opinion than to the report
from the CED which was merely generated by a therapist and subsequently signed by
a doctor. Cf. Freeman v. Barnhart, 220 F. App’x 957, 961 (11th Cir. 2007) (“[His]
opinion is entitled to less weight than the opinions of medical doctors because he is
a physical therapist.”). The court finds the Freeman decision to be persuasive and
analogous to the present case, and has similarly held. See Vaughn v. Colvin, No. 4:12CV-1793-VEH, 2013 WL 5519680, at *5 (N.D. Ala. Sept. 30, 2013) (“Dr. Walker,
as a ‘licensed professional counselor’ ... was not an ‘acceptable medical source’ under
the Regulations ... The ALJ was thus free to discount Dr. Walker’s assessment.”)
Likewise, the ALJ’s physical RFC is not invalidated by Dr. Herrera’s opinion.
Instead, the RFC was consistent with several parts of Dr. Herrera’s physical
assessment of Mr. Rollins. Such similarities include findings that Mr. Rollins can sit
or stand for over six hours in a work day, and that he can frequently lift objects
weighing ten pounds. (Tr. 73, 276-77). This is in accordance with the definition of
light work. See 20 C.F.R. § 416.967(b) (“Light work involves lifting no more than 20
pounds at a time ... with some pushing and pulling”).
Mr. Rollins maintains that the ALJ erroneously disregarded the additional jobrelated restrictions that Dr. Herrera found to be appropriate within the category of
light work given the VE’s testimony. More specifically, the VE testified that Mr.
Rollins would be unable to perform the potential light jobs which the VE identified
if the vocational impact of his physical impairments meant that he could only
occasionally:6 (1) have full use of both hands and (2) push and pull. (Tr. 65-67).
Dr. Herrera’s assessment shows that Mr. Rollins’s hand use is only
vocationally restricted in a minimal manner. (Tr. 277 § 8). For example, he indicated
that Mr. Rollins can use both of his hands for simple grasping, fingering, handling,
and fine manipulation “FREQUENTLY,” only one level down from the least
restrictive category of “CONSTANTLY” and one a step above the critical
classification of “OCCASIONALLY.” Id. Comparably, the ALJ found no job-related
restrictions caused by Mr. Rollins’s right hand impairment, and the ALJ did not
As defined in Dr. Herrera’s report, “Occasionally” “[e]quals 0% to 33% [or] (1-2 hours)”
in an 8 hour workday. (Tr. 276).
commit any error in this regard.
The ALJ and Dr. Herrera did dramatically disagree in their assessment of Mr.
Rollins’s ability to push and pull. Dr. Herrera opined that Mr. Rollins can only use
his arms, hands, legs, and feet for pushing and pulling “OCCASIONALLY.” (Tr. 277
§§ 4-5). The ALJ, in contrast, did not include any restrictions related to pushing and
pulling in formulating Mr. Rollins’s RFC. However, the ALJ did express adequate
reasons to accord only partial weight to Dr. Herrera’s opinion (Tr. 26), as discussed
supra at 11-14, and thus was not required to adopt all of the physical restrictions
found by Dr. Herrera to be appropriate.
For example, the ALJ justified his physical RFC assessment (and departure
from some of Dr. Herrera’s findings) in part by referencing Mr. Rollins’s testimony
about his work and daily activities (such as tree-cutting with a chain saw and lawnmowing), which tend to corroborate that pushing and pulling are not significant
problems for him. (Tr. 46-47, 225). Inconsistency with a claimant’s testimony is good
cause for an ALJ to disregard a medical opinion. See Phillips, 357 F. 3d at 1241
(“‘[G]ood cause’ exists when ... evidence supports a contrary finding ... The ALJ
concluded that this assessment was ... contrary to Phillips’s admissions concerning
her activities.” (citing Lewis,125 F.3d at 1440)).
Further, the ALJ’s physical RFC was substantially supported by the medical
opinion of Dr. Henry Born (“Dr. Born”).7 (Tr. 25-26). Although Dr. Born did not
directly discuss some of the functional components which the ALJ’s physical RFC
assessment included, he did provide a detailed analysis of Mr. Rollins’s physical
status from which the ALJ could, in conjunction with Mr. Rollins’s self-reporting on
his broad range of activities, draw reasonable conclusions about Mr. Rollins’s
physical abilities and limitations. (Tr. 224-26); cf. Castle v. Colvin, 557 F. App’x 849,
854 (11th Cir. 2014) (“[W]here the medical evidence shows relatively little physical
impairment, an ALJ permissibly can render a commonsense judgment about
functional capacity even without a physician’s assessment.” (citing Manso-Pizarro
v. Sec’y of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996))); 20 C.F.R. §
416.946(c). (“[T]he [ALJ] ... is responsible for assessing your [RFC].”).
Dr. Born’s opinion supports the physical RFC assessment formulated by the
ALJ, including the conclusions reached regarding Mr. Rollins’s ability to push and
pull and the slightly restricted use of his right hand. Dr. Born stated in his opinion
[M]uscle strength in the arm and forearm is normal. The deep tendon
reflexes are normal ... the intrinsic muscles of the right hand do not seem
atrophied as opposed to the left ... He can grasp and hold objects with
the right hand ... He has good range of motion at the cervical spine. He
The functional evaluation that Mr. Rowell prepared was also primarily based off of Dr.
Born’s examination of Mr. Rollins. (Tr. 79).
has good range of motion at the shoulders, elbows, left wrist, hand, and
fingers. At the right ... He has some restriction on range of motion. It
hurts to move. His grip strength is diminished. He may have slight
diminution in finger/hand dexterity.
In sum, Dr. Herrera’s opinion that Mr. Rollins may only occasionally push or
pull with his arms and legs is inconsistent with Dr. Born’s findings of normal arm and
forearm strength, only minor deficits in the use of his right hand,8 and only slightly
restricted leg functioning. (See also Tr. 225 (“[L]ower extremities ... muscle strength
is intact. He has pain on straight leg raising at 60 degrees ... has normal range of
motion at the hips, knees, ankles, and feet ... patient’s gait is slow.”)). At best, Dr.
Born’s conclusions substantiate that Mr. Rollins retained the ability to push and pull
more than only occasionally; consequently, the light jobs identified by the VE would
not be eliminated.
Mr. Rollins additionally argues that the ALJ’s omission of the CED’s diagnosis
of bipolar disorder in his hypothetical questioning of the VE renders the testimony
insubstantial, citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999) (“In order
for a VE’s testimony to constitute substantial evidence, the ALJ must pose a
The court notes that, in his report, Dr. Herrera did not make any distinction between the
functionality of Mr. Rollins’s left versus right hand. He also expressly rated Mr. Rollins’s ability to
push and pull from both his left and right arms and hands, equally, as “OCCASIONALLY.” (Tr. 277
§ 4). This similarity in assessment is inconsistent with the record’s indication that only Mr. Rollins’s
right hand has functional restrictions.
hypothetical question which comprises all of a claimant’s impairments.”).9 However,
an ALJ is “not required to include findings in the hypothetical that the ALJ had
properly rejected as unsupported.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1161 (11th Cir. 2004); see also Vaughn v. Colvin, No. 4:12-CV-01793-VEH (Doc 15
at 17) (N.D. Ala. Sep. 30, 2013) (“In light of Dr. Davis’s evaluation, this hypothetical
is adequately comprehensive.”). As explained above, the ALJ properly rejected the
bipolar diagnosis by the CED when formulating Mr. Rollins’s overall RFC.
Therefore, the ALJ’s reliance upon the VE’s responses to hypothetical questions that
are consistent with that RFC does not warrant reversal on appeal.
The ALJ’s Assessment Of Mr. Rollins’s Credibility Was Based On
The Eleventh Circuit’s pain standard “applies when a disability claimant
attempts to establish a disability through his own testimony of pain or other
subjective symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The
pain standard requires “evidence of an underlying medical condition and (1) objective
medical evidence that confirms the severity of the alleged pain arising from that
condition or (2) that the objectively determined medical condition is of such severity
Mr. Rollins also objects to the hypothetical question posed to the VE on the grounds that it
wrongly described him as having had SGA as a truck driver, and because it did not convey the severe
pain described by Mr. Rollins and Dr. Herrera. The harmlessness of the potential error regarding the
truck driving SGA has been discussed supra at 13-14, and the ALJ’s adequately-reasoned disregard
of Mr. Rollins’s pain is discussed infra at 22-25.
that it can reasonably be expected to give rise to the alleged pain.” Landry v. Heckler,
782F.2d 1551, 1553 (11th Cir. 1986) (citing Hand v. Heckler, 761 F.2d 1545, 1548
(11th Cir. 1985)). Even if a claimant meets the pain standard, the ALJ may then
evaluate the intensity, persistence, and limiting effects of the pain or other alleged
symptoms. See 20 C.F.R. § 404.1529(c)(1). Applying this pain standard to the present
case, the ALJ found that medical signs and laboratory findings depict medical
impairments that could reasonably be expected to produce the alleged symptoms. (Tr.
25). However, the ALJ determined “the claimant’s statements concerning the
intensity, persistence, and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above [RFC] assessment.” Id.
The ALJ may reject a claimant’s complaints of pain if he has good reason to
doubt their credibility. See Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)
(“After considering a claimant’s complaints of pain, the ALJ may reject them as not
credible, and that determination will be reviewed for substantial evidence.”).The ALJ
may not discredit a claimant without clearly explaining his reasons for doing so. See
Foote, 67 F.3d at 1561 (“If the ALJ decides not to credit a claimant’s testimony as to
her pain, he must articulate explicit and adequate reasons for doing so.”).
Further, the ALJ is bound to consider other evidence, in addition to the
objective medical evidence, because “symptoms sometimes suggest a greater severity
of impairment than can be shown by objective medical evidence alone.” 20 C.F.R. §
416.929(c)(3). This “other evidence” includes statements made by the claimant in
testimony during administrative hearings concerning the claimant’s restrictions, daily
activities, frequency and intensity of symptoms, any precipitating and aggravating
factors, medication taken and any resulting side effects, and any other measures taken
to alleviate the symptoms. Id.
Here, the ALJ discredited Mr. Rollins’s testimony as to the intensity of his
symptoms with adequate reasoning. See 20 C.F.R. § 416.929(c)(4). (“We will
consider ... the extent to which there are any conflicts between your statements and
the rest of the evidence”). In explaining his negative credibility finding, the ALJ
[T]he claimant’s statements and other allegations concerning the
intensity, persistence, and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above [RFC]
assessment. For example, the claimant is still independent in his
activities of daily living, including chores and shopping. He reported
that he still does occasional treecutting work for people and that he cuts
his aunt’s lawn using a riding lawnmower ...physical examination by Dr.
Born showed that claimant can grasp and hold object with his right hand
and there is no evidence of atrophy of the muscles ...even Dr. Herrera
opined that the claimant would be capable of some work at the light and
medium levels of exertion ... By self-admission, he has a moderately
active lifestyle and actually earned [SGA] driving a dump truck as
recently as 2011.
(Tr. 26). The tree-cutting referred to by the ALJ required several hours of exertion
(Tr. 47), yet Mr. Rollins stated that he could sit for no more than thirty minutes at a
time (Tr. 43), stand for no more than twenty minutes at a time (Tr. 42), and walk for
no more than fifteen minutes at a time. (Tr. 44). Mr. Rollins also claimed that he
cannot effectively grip with his right hand (Tr. 46).
Mr. Rollins argues that the ALJ’s reliance on Mr. Rollins’s testimony about his
own daily activities improperly characterizes him as not being disabled. (Doc. 11, 3233). The mere fact that a claimant is able to perform some basic activities does not
mean that he or she is not disabled. See Lewis, 125 F.3d at 1441 (“Nor do we believe
that participation in everyday activities of short duration, such as household chores
or fishing, disqualifies a claimant from disability or is inconsistent with the
limitations recommended by Lewis’s treating physicians.”). However, the ALJ did not
base his disability determination merely on Mr. Rollins’s ability to do only some daily
Instead, the ALJ properly considered Mr. Rollins’s ability to perform the
demanding, and far from basic, activity of tree-cutting, as well as other activities, in
only partially crediting his subjective level of pain. See Moore, 405 F.3d at 1212
(“[T]he ALJ here relied on the inconsistencies between Moore’s descriptions of her
diverse daily activities and her claims of infirmity.”); see also Miller v. Colvin, No.
5:11-CV-04000-VEH, 2013 WL 1346705, at *9 (N.D. Ala. Mar. 28, 2013) (“In this
case, Miller’s daily activities, when considered with the record as a whole, reasonably
support the ALJ’s negative credibility finding.”). By straightforwardly showing
activity-related contradictions with Mr. Rollins’s claimed level of pain, the ALJ
satisfied his burden for partially discrediting him. See Foote, 67 F.3d at 1562 (“A
clearly articulated credibility finding with substantial supporting evidence in the
record will not be disturbed by the reviewing court” (citing MacGregor v. Bowen,
814 F.2d 585, 588-590 (11th Cir. 1987))).
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 she applied proper legal standards in arriving at it.
Accordingly, the decision will be affirmed by separate order.
DONE and ORDERED this the 22nd day of July, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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