Jones v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Judge Corey L Maze on 1/10/2022. (KAM)

FILED
2022 Jan-10 PM 03:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MICHAEL JONES,
Plaintiff,

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)
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)
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v.
KILOLO KIJIKAZI,
Acting Commissioner
of the Social Security
Administration,
Defendant.

4:20-cv-00960-CLM

MEMORANDUM OPINION
Michael Jones seeks disability, disability insurance, and Supplemental
Security Income (“SSI”) from the Social Security Administration (“SSA”) based on
several impairments. The SSA denied Jones’s application in an opinion written by
an Administrative Law Judge (“ALJ”). Jones argues: (1) that the ALJ erred in
evaluating the opinion of Dr. June Nichols, an examining consultative psychologist,
(2) that he meets Listing 12.04, and (3) that the ALJ’s hearing decision lacks the
support of substantial evidence.
As detailed below, the ALJ applied the correct legal standards and substantial
evidence supports his decision. So the court will AFFIRM the SSA’s denial of
benefits.

I.

Statement of the Case
A.

Jones’s Disability, as told to the ALJ

Jones was 41 years old at the time of his alleged disability onset date. R. 572.
Jones has a high school education and past relevant work experience as a truck
driver. R. 577.
In his disability report, Jones alleged that he couldn’t work because he suffers
from bipolar disorder, depression, anxiety, bad disks/nerve damage in back, high
blood pressure, and high cholesterol. R. 576. At the ALJ hearing, Jones testified that
he left his last job because he started having panic attacks and suffering from mood
swings, which caused him to keep getting into conflicts with his coworkers. R. 386.
Jones then lost his commercial driver’s license (“CDL”) because of medication side
effects. Id. Because of nerve pain in his back, Jones uses a cane to help him stand
and walk. R. 389–90. And Jones says he can stand in one spot for only 5 or 10
minutes before needing to sit or move around. R. 389.
Jones lives with his wife and two children. R. 382. Jones has a current driver’s
license but seldomly drives. R. 383. He also only gets dressed 15 to 20 days within
a 30-day period. R. 391. And when Jones gets dressed, his wife must help him. Id.
B.

Determining Disability

The SSA has created the following five-step process to determine whether an
individual is disabled and thus entitled to benefits under the Social Security Act:

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The 5-Step Test
Step 1

Is the Claimant engaged in substantial
gainful activity?

If yes, claim denied.
If no, proceed to Step 2.

Step 2

Does the Claimant suffer from a severe,
medically-determinable impairment or
combination of impairments?

If no, claim denied.
If yes, proceed to Step 3.

Step 3

Does the Step 2 impairment meet the
criteria of an impairment listed in 20
CFR Part 404, Subpart P, Appx. 1?

If yes, claim granted.
If no, proceed to Step 4.

*Determine Residual Functional Capacity*
Step 4

Does the Claimant possess the residual
functional capacity to perform the
requirements of his past relevant work?

If yes, claim denied.
If no, proceed to Step 5.

Step 5

Is the Claimant able to do any other
work considering his residual functional
capacity, age, education, and work
experience?

If yes, claim denied.
If no, claim granted.

See 20 C.F.R. §§ 404.1520(a), 404.1520(b) (Step 1); 20 C.F.R. § 404.1520(c) (Step
2); 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 (Step 3); 20 C.F.R. § 404.1520(ef) (Step 4); 20 C.F.R. § 404.1520(g) (Step 5). As shown by the gray-shaded box,
there is an intermediate step between Steps 3 and 4 that requires the ALJ to determine
a claimant’s “residual functional capacity,” which is the claimant’s ability to perform
physical and mental work activities on a sustained basis. The intermediate step and
Step 3 are the most important steps here, as Jones’s challenges flow from the ALJ’s
decisions at these points in the evaluation process.
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C.

Jones’s Application and the ALJ’s Decision

The SSA reviews applications for disability benefits in three stages: (1) initial
determination, including reconsideration; (2) review by an ALJ; and (3) review by
the SSA Appeals Council. See 20 C.F.R. § 404.900(a)(1-4).
Jones applied for disability insurance benefits, a period of disability, and SSI
in February 2018, claiming that he was unable to work because of various ailments,
including bipolar disorder, anxiety, depression, bad disks in back, and nerve damage
in back. After receiving an initial denial in June 2018, Jones requested a hearing,
which the ALJ conducted in June 2019. The ALJ ultimately issued an opinion
denying Jones’s claims in July 2019. R. 10–31.
At Step 1, the ALJ determined that Jones was not engaged in substantial
gainful activity and thus his claims would progress to Step 2.
At Step 2, the ALJ determined that Jones suffered from the following severe
impairments: degenerative disc disease and depression.
At Step 3, the ALJ found that none of Jones’s impairments, individually or
combined, met or equaled the severity of any of the impairments listed in 20 CFR
Part 404, Subpart P, Appendix 1. So the ALJ next had to determine Jones’s residual
functional capacity.
The ALJ determined that Jones had the residual functional capacity to perform
sedentary work with these added limitations:

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• Jones can only occasionally push or pull with lower extremities.
• Jones cannot climb ladders or scaffolds.
• Jones can occasionally climb ramps and stairs.
• Jones can occasionally balance and stoop.
• Jones cannot kneel, crouch, or crawl.
• Jones can have only occasional exposure to extreme heat, extreme cold,
and vibration.
• Jones cannot have exposure to dangerous machinery or unprotected
heights.
• Jones cannot work where he has to walk on uneven or slippery surfaces.
• Jones must be allowed to use a handheld assistive device when walking.
• Though Jones can understand and remember short and simple
instructions, he cannot understand and remember detailed or complex
instructions.
• Though Jones can complete simple, routine, repetitive tasks, he cannot
complete detailed or complex tasks.
• Jones can have no more than occasional contact with the general public
and co-workers.
• Jones can deal with changes in the workplace if the changes are
introduced occasionally and gradually and are well explained.
• Jones may occasionally miss one to two days of work because of his
impairments.
At Step 4, the ALJ found that Jones could not perform his past relevant work.
At Step 5, the ALJ determined that Jones could perform jobs, such as sorter, spotter,
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and dowel inspector, that exist in significant numbers in the national economy and
thus Jones was not disabled under the Social Security Act.
Jones requested an Appeals Council review of the ALJ’s decision. The
Appeals Council will review an ALJ’s decision for only a few reasons, and the
Appeals Council found no such reason under the rules to review the ALJ’s decision.
As a result, the ALJ’s decision became the final decision of the SSA Commissioner,
and it is the decision subject to this court’s review.
II.

Standard of Review
This court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of the court’s review is limited to (a) whether the record
contains substantial evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g);
Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and (b) whether the ALJ
applied the correct legal standards, see Stone v. Comm’r of Soc. Sec., 544 F. App’x
839, 841 (11th Cir. 2013) (citing Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158 (11th Cir. 2004)). “Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford, 363 F.3d at 1158.

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III.

Legal Analysis
Jones makes three arguments for why the ALJ erred in finding him not

disabled. First, Jones argues that the ALJ erred in discounting the opinion evidence
from Dr. June Nichols, a consultative psychologist. Second, Jones asserts that the
ALJ erred in finding at Step 3 that his mental impairments didn’t meet Listing 12.04.
Finally, Jones contends that the ALJ’s decision lacks the support of substantial
evidence. The court will address each argument in turn.
A.

Dr. Nichols’s Opinion Evidence

Jones first argues that the ALJ erred in evaluating the opinions of Dr. June
Nichols who performed a psychological consultative examination on Jones in June
2019. After the evaluation, Dr. Nichols found that Jones had ongoing problems with
depression, active hallucinations, and anxiety that would make it hard for him to
work. R. 960. She then noted that Jones could manage basic self-care except that his
wife must help him put on socks and shoes. R. 960–61. Dr. Nichols found that Jones
could understand, carry out, and remember short, simple, and 1 to 2 step instructions.
R. 961. But Jones cannot maintain attention/concentration and pace for periods of at
least two hours. Id. Dr. Nichols also determined that Jones cannot maintain a regular
schedule with appropriate punctuality or a regular job without missing more than 1
to 2 days per month. Id.

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Dr. Nichols then stated that Jones cannot sustain an ordinary work routine
without the need for special supervision. Id. And she noted that Jones cannot seek
and accept appropriate instructions and criticism from supervisors. Id. Dr. Nichols
finally found that Jones cannot (1) maintain socially appropriate appearance,
behavior, and social interactions, or (2) reliably and independently manage his
finances. Id.
About a week after the consultative examination, Dr. Nichols filled out a
mental health source statement for Jones. This one-page form required Dr. Nichols
to circle ‘yes’ or ‘no’ and fill in short blanks about various disability-related topics.
R. 962. Dr. Nichols responded that Jones can understand, remember, or carry out
very short and simple instructions. Id. But Dr. Nichols answered that Jones cannot:
(1) maintain attention, concentration and/or pace for periods of at least two hours;
(2) perform activities within a schedule and be punctual with customary tolerances;
(3) sustain an ordinary routine without special supervision; (4) adjust to routine and
infrequent work changes; (5) interact appropriately with supervisors/co-workers;
and (6) maintain socially appropriate behavior and adhere to basic standards of
neatness and cleanliness. Id. Dr. Nichols then stated that she expected Jones to be
off-task 60% of the time in an 8-hour day. Id. And Dr. Nichols noted that she
expected Jones to miss 25 days of work in a 30-day period because of his
psychological problems. Id.
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The ALJ addressed Dr. Nichols’s opinions in his hearing decision and
explained that he didn’t find them persuasive:
I reviewed and considered Dr. Nichols’s nonexamining opinions and
do not consider them persuasive (Exhibit 10F). While there may be
discrepancies between Dr. Nichols’s specific opinions and markings
and the limitations reflected in the claimant’s residual functional
capacity, these discrepancies are based on, inter alia, my independent
review, my consideration of the claimant’s testimony, and all other
evidence in the aggregate, some of which may not have been available
to Dr. Nichols at the time of her expressed opinions. Her evaluation is
not consistent with the level of the claimant’s treatment and the
conservative treatment received thus far, especially when the claimant
is [compliant] with his medication regimen. As such, her opinions do
not have support and are not consistent with the aggregate record and
testimony.
R. 23–24.
Jones raises two arguments related to the ALJ’s handling of Dr. Nichols’s
medical opinions.
1. Nonexamining physician error: Jones first argues that the ALJ erred
because he referred to Dr. Nichols as a nonexamining physician when she was in
fact a one-time consultative examiner. The court rejects this argument.
To start, the ALJ’s reference to “Dr. Nichols’s nonexamining opinions” was
probably a typo. Earlier in the ALJ’s decision he recognized that Dr. Nichols
evaluated Jones in June 2019. R. 21. The ALJ then detailed what Jones told Dr.
Nichols and what she observed during the psychological evaluation. R. 21–22. So

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the ALJ seems to have understood that Dr. Nichols was a consultative examiner, not
someone who merely reviewed Jones’s medical records.
And even if the ALJ mistook Dr. Nichols for a nonexamining physician, this
court’s review doesn’t end with finding error if the error was harmless. See Diorio
v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (“We find that the ALJ made
erroneous statements of fact, but we conclude that this was harmless error in the
context of this case and that the ALJ applied the proper legal standards.”).
Jones asserts that the ALJ’s belief that Dr. Nichols was a nonexamining
physician matters because the opinions of consultative examiners, like Dr. Nichols,
are entitled to more weight than the opinions of non-examining, reviewing
physicians. That was the old rule. The SSA’s new regulations do away with the
hierarchy of medical opinions and treating physician rule for all claims filed on or
after March 27, 2017. See 20 CFR §§ 404.1520c(a), 416.920c(a). Under the new
regulations, an ALJ need not “defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s).” Id.
And though Jones argues otherwise, the ALJ didn’t reject Dr. Nichols’s
opinions because he thought she was a nonexamining physician. Instead, the ALJ
found Dr. Nichols’s opinions unpersuasive because “[h]er evaluation is not
consistent with the level of the claimant’s treatment and the conservative treatment
received thus far, especially when the claimant is [compliant] with his medication
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regimen.” R. 23–24. So the court finds that any error in classifying Dr. Nichols as a
nonexamining physician was harmless.
2. ‘Some measure of clarity’ lacking: Jones next asserts that the ALJ failed to
provide “some measure of clarity” for why he discounted Dr. Nichols’s opinions. In
support of this argument, Jones cites the rule that an ALJ “must state with
particularity the weight given to different medical opinions and the reasons
therefor.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
But that again was the rule under the old regulations. Under the new regulations, the
ALJ still must articulate how persuasive he finds each medical source’s opinion. See
20 CFR §§ 404.1520c(b), 416.920c(b). But the ALJ doesn’t need to assign the
medical opinions a specific evidentiary weight. 20 CFR §§ 404.1520c(a),
416.920c(a). Instead, the ALJ just needs to explain how he considered the factors of
supportability and consistency when evaluating a medical source’s opinion. 20 CFR
§§ 404.1520c(b)(2), 416.920c(b)(2).
Here, the ALJ explained that Dr. Nichols’s opinions weren’t supported by the
conservative treatment that Jones received. R. 23–24. And the ALJ determined that
Dr. Nichols’s opinions “are not consistent with the aggregate record and testimony.”
R. 24. So the ALJ sufficiently explained how he evaluated Dr. Nichols’s opinions.

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***
To sum up, Jones’s arguments don’t persuade the court that the ALJ erred in
evaluating Dr. Nichols’s opinion evidence. And Jones notably hasn’t argued that the
ALJ gave invalid reasons for rejecting Dr. Nichols’s opinions or that substantial
evidence doesn’t support the ALJ’s decision to find Dr. Nichols’s opinions
unpersuasive. So the court needn’t consider those arguments. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681–83 (11th Cir. 2014).
B.

Listing 12.04

Jones next asserts that the ALJ should have found that his mental impairments
met Listing 12.04 (depressive, bipolar, and related disorders). This argument fails
because although Jones cites several medical records in support of this argument, he
fails to explain how these records show that he met the criteria of Listing 12.04.
At Step 3, if a claimant has an impairment that meets or equals a listing in 20
CFR Part 404, Subpart P, Appx. 1 and satisfies the SSA’s duration requirement, the
ALJ must presume that the claimant is disabled. See 20 CFR § 404.1420(a)(4)(iii).
To establish a presumption of disability based on a listing, a claimant must show “a
diagnosis included in the Listings and must provide medical reports documenting
that the conditions meet the specific criteria of the Listings and the duration
requirement.” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (citations
omitted). In addition, a claimant’s impairments must meet or equal all of the
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specified medical criteria in a particular listing for the claimant to be disabled at Step
3. Sullivan v. Zebley, 493 U.S. 521, 530–32 (1990).
To satisfy Listing 12.04, Jones must show that his mental impairments meet
either the requirements of both paragraphs A and B of Listing 12.04 or the
requirements of both paragraphs A and C of Listing 12.04. See 20 CFR Part 404,
Subpart P, Appx. 1, § 12.00A(2). The ALJ found that Jones’s mental impairments
didn’t satisfy either the paragraph B or paragraph C criteria. R. 17–18.
A claimant’s mental impairments satisfy the paragraph B criteria when the
mental impairments “result in ‘extreme’ limitation of one, or ‘marked’ limitation of
two, of [these] four areas of mental functioning”:
• understand, remember, or apply information;
• interact with others;
• concentrate, persist, or maintain pace; and
• adapt or manage oneself.
20 CFR Part 404, Subpart P, Appx. 1, § 12.00A(2)(b). A claimant has a marked
limitation when the claimant’s functioning in this area independently, appropriately,
effectively, and on a sustained basis is seriously limited. 20 CFR 404, Subpart P,
Appx. 1, § 12.00F(2). A claimant has an extreme limitation when the claimant
cannot function in this area independently, appropriately, effectively, and on a
sustained basis. Id.
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To satisfy the paragraph C criteria, a claimant must have a medically
documented history of the existence of his mental disorder over a period of at least
2 years. 20 CFR 404, Subpart P, Appx. 1, § 12.04C. There must also be evidence of:
• Medical treatment, mental health therapy, psychosocial support(s), or a
highly structured setting(s) that is ongoing and that diminishes the
symptoms and signs of the mental disorder; and
• Marginal adjustment, that is, the claimant has minimal capacity to adapt
to changes in his environment or to demands that are not already part
of his daily life.
Id.
Citing the record, including the opinion of State agency psychiatrist Dr.
Robert Estock, the ALJ found that Jones didn’t satisfy the paragraph B criteria
because he had only moderate limitations in the four areas of mental functioning. R.
17–18. The ALJ then stated that he agreed with Dr. Estock that “the evidence fails
to establish the presence of the ‘paragraph C’ criteria.” R. 18. So the ALJ determined
that Jones’s mental impairments didn’t meet Listing 12.04. R. 17–18.
Though the ALJ spent eight paragraphs explaining why Jones didn’t satisfy
Listing 12.04, Jones’s briefs include only this conclusory argument for why the ALJ
erred: “The evaluation by Dr. June Nichols as summarized on pages 8 – 12 of this
brief confirms eligibility pursuant to Listing 12.04. Dr. Nichols opinions are
substantiated by records of CED Mental Health 3F (R-690-722).” Doc. 12 at 26.

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This argument is inadequate because it leaves both the Commissioner and the
court wondering how the ALJ erred. Did the ALJ err because the evidence shows
that Jones’s impairments meet both the paragraph B and paragraph C criteria? Or do
Dr. Nichols’s opinions just show that Jones satisfied the paragraph B criteria? If so,
how does Jones satisfy the paragraph B criteria? Does Jones have one extreme
limitation or two marked limitations in the four areas of mental functioning? Jones’s
briefs don’t say. So Jones has effectively abandoned the argument that the ALJ erred
in finding that he didn’t meet Listing 12.04. See Singh v. U.S. Atty. Gen., 561 F.3d
1275, 1278 (11th Cir. 2009) (“[A]n appellant’s simply stating that an issue exists,
without further argument or discussion, constitutes abandonment of that issue.”); see
also Sapuppo, 739 F.3d at 681 (“We have long held that an appellant abandons a
claim when he either makes only passing references to it or raises it in a perfunctory
manner without supporting arguments and authority.”).
In any event, as explained, Jones has failed to establish that the ALJ erred in
finding Dr. Nichols’s opinion unpersuasive. And the ALJ pointed to substantial
record evidence to support his determination that Jones didn’t satisfy the paragraph
B or paragraph C criteria. R. 17–18. So even if the evidence Jones points to supports
a different determination, the ALJ didn’t err in making his Step 3 findings. See
Winschel, 631 F.3d at 1178 (It is not this court’s role to “decide the facts anew,
reweigh the evidence, or substitute [its] judgment for that of the Commissioner.”).
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C.

Substantial Evidence

Jones finally contends that substantial evidence didn’t support the ALJ’s
decision to deny benefits. Jones first asserts that the ALJ erred by disregarding Dr.
Nichols’s psychological evaluation. But the ALJ didn’t disregard Dr. Nichols’s
opinions. Instead, as detailed above, the ALJ considered Dr. Nichols’s opinions and
found them unpersuasive. So this argument fails.
Jones also argues that the ALJ erred in relying on the vocational expert’s
testimony to find that he was not disabled because the hypothetical question posed
to the vocational expert didn’t include all his limitations. According to Jones, the
hypothetical question was deficient because it: (1) did not accurately state his
psychological limitations, pain level, or residual functional capacity, and (2)
assumed that Jones could perform sedentary work.
“[F]or a vocational expert’s testimony to constitute substantial evidence, the
ALJ must pose a hypothetical question which comprises all of the claimant’s
impairments.” Id. at 1180. But if substantial evidence supports the ALJ’s finding
that the claimant does not have a particular limitation, the ALJ need not include that
limitation in his hypothetical question to the vocational expert. Crawford, 363 F.3d
at 1161.
The hypothetical question that the ALJ relied on to find that Jones could work
included all the limitations the ALJ assessed in Jones’s residual functional capacity.
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Compare R. 393–94 with R. 18. And Jones hasn’t pointed to any specific limitations
he has that the ALJ didn’t include in his hypothetical question. So the ALJ properly
relied on the vocational expert’s answer to his question to determine that Jones could
perform work that exists in significant numbers in the national economy. See Wilson
v. Barnhart, 284 F.3d 1219, 1227–28 (11th Cir. 2002). In short, substantial evidence
supports the ALJ’s disability determination.
IV.

Conclusion
In summary, the court has reviewed the parties’ briefs, the ALJ’s findings,

and the record evidence and finds that the ALJ applied the correct legal standards
and that substantial evidence supports the ALJ’s decision. So the court will
AFFIRM the SSA’s denial of benefits. The court will enter a separate final order
that closes this case.
DONE on January 10, 2022.

_________________________________
COREY L. MAZE
UNITED STATES DISTRICT JUDGE

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