Ferguson v. Social Security Administration, Commissioner
MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 8/28/2013. (AVC)
2013 Aug-28 PM 02:42
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
RYAN ALAN FERGUSON,
MICHAEL J. ASTRUE,
Civil Action No.: 5:12-CV-01925-RDP
MEMORANDUM OF DECISION
Plaintiff Ryan Alan Ferguson (“Plaintiff”) brings this action pursuant to Sections 205(g)
and 1631(c) of the Social Security Act (the “Act”), seeking review of the decision by the
Commissioner of the Social Security Administration (“Commissioner”) denying his applications
for a period of disability, disability insurance benefits (“DIB”), and Social Security Income
(“SSI”) benefits under the Act. See also, 42 U.S.C. §§ 405(g), 1383(c)(3). Based upon the
court’s review of the record and the briefs submitted by the parties, the court finds that the
decision of the Commissioner is due to be affirmed.
This action arises from Plaintiff’s application for disability, DIB, and SSI filed on March
27, 2009. (Tr. 100, 102, 162, 179). Plaintiff alleges his disability began on March 7, 2009.
(Id.). The Social Security Administration initially denied Plaintiff’s applications on July 7, 2009.
(Tr. 66-67, 76-80).
On September 28, 2009, Plaintiff requested a hearing before an
Administrative Law Judge (ALJ). (Tr. 82). Plaintiff’s request was granted and a hearing was
held on September 2, 2010. (Tr. 37-63, 87, 94). In his November 5, 2010 decision, the ALJ
concluded Plaintiff was not disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Act.
(Tr. 13-24). After the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision
became the final decision of the Commissioner, and therefore a proper subject of this court’s
appellate review. (Tr. 1-3, 8). 42 U.S.C. §§ 405(g), 1383(c)(3).
Plaintiff was thirty-one years old at the time of the hearing. (Tr. 40). Plaintiff alleges his
disability began March 7, 2009 and that he suffers from pelvic displacement, ADHD, asthma,
and tick disorder.1 (Tr. 167). Plaintiff has previously worked at shops, fast food restaurants, and
a food processing plant. (Tr. 143-50). Although Plaintiff alleges he has been unable to engage
in substantial gainful activity since March 7, 2009, he acknowledged that he was laid off due to
job performance and reported seeking employment. (Tr. 167, 234-35, 239-40)
On August 28, 2008, Plaintiff visited Cullman Internal Medicine and saw Dr. Lane
Friedman. (Tr. 232). Dr. Friedman found Plaintiff was in “generally  good health,” but noted
he suffered from chronic weight issues and urged him to decrease his weight. (Tr. 232-33).
Although Plaintiff reported recently losing twenty pounds, Dr. Friedman indicated he was obese
at a weight of 291 pounds. (Id.). Dr. Friedman referred Plaintiff to Dr. Gregory Windham for a
physical examination. Upon examination, Dr. Windham detected “firmness palpable in the right
periumbilical region,” which he believed could be a hernia. (Tr. 218-19, 229). After a follow-up
CT scan of Plaintiff’s abdomen and pelvis on March 5, 2009, Dr. Windham’s opinion was that
Plaintiff did not have a hernia, but “probably has a lipoma.” (Tr. 215, 228). Plaintiff declined
surgery as an option and indicated he would follow-up if necessary. (216, 228).
On December 31, 2009, Plaintiff was seen at Cullman Internal Medicine complaining of
lower back pain for the past nine months. (Tr. 226). An x-ray was attempted, however, at a
Plaintiff previously filed for disability on September 8, 2001 and November 25, 2003. Plaintiff’s
applications were denied on each occasion. (Tr. 163).
weight of 346 pounds, Plaintiff was too heavy for their equipment and was given orders to have
the x-ray taken at the hospital. (Tr. 226-27). Plaintiff was prescribed Flexeril and Ultram for his
back pain as needed. (Tr. 227). On April 26, 2010, Plaintiff underwent an ultrasound at
Cullman Radiology Group, P.C. by Dr. Jeffrey Nicholson. Dr. Nicholson found Plaintiff to have
a normal liver, no focal or diffuse abnormalities, and an “unremarkable” gallbladder, common
hepatic duct, and right kidney. (Tr. 223).
In a follow-up with Dr. Friedman on April 29, 2010, Plaintiff’s lab results showed a mild
increase in blood sugar, hyperlipidemia and some mild abnormal liver tests, and a normal
abdominal ultrasound. (Tr. 221). At that time, Plaintiff weighed 357 pounds, an increase of
eleven pounds in four months. Dr. Friedman noted Plaintiff experienced shortness of breath after
minimal exertion and that his activities were limited by hip problems. (Id.). Dr. Friedman
diagnosed Plaintiff with probable mild hypertension, morbid obesity, abnormal Liver Function
Tests (“LFTs”), probable diabetes mellitus, and hyperlipidemia. (Tr. 222). According to Dr.
Friedman, Plaintiff’s abnormal LFTs were “almost certainly” due to his fatty liver. (Id.). Dr.
Friedman continued Plaintiff’s Flexeril, Ultram, and Albuterol prescriptions and added a
prescription for Pravastatin. (Tr. 221). At a July 9, 2010 appointment, Dr. Friedman added sleep
apnea, asthma, and chronic back pain to his assessment of Plaintiff. (Tr. 317-18). Plaintiff was
instructed by Dr. Friedman to use a CPAP machine for his sleep apnea as needed. (Tr. 317). At
Plaintiff’s last visit to Dr. Friedman on October 12, 2010, Plaintiff denied symptoms from sleep
apnea, asthma, or chronic back pain; Dr. Friedman removed these conditions from his
assessment. (Tr. 342-44). At that meeting, Plaintiff weighed 349 pounds. (Tr. 342-43).
On June 8, 2009, Dr. Will Crouch performed x-rays of Plaintiff’s right hip and spine.
(Tr. 280). The x-rays revealed “minimal degenerative changes  throughout the right hip and
acetabulum,” while Plaintiff’s spine “appear[ed] normal.” (Id.). Dr. Crouch’s impression was
that Plaintiff suffered from minimal degenerative joint disease in his right hip. (Id.).
Beginning in October 2009, Plaintiff attended therapy at Mental Healthcare of Cullman
Plaintiff repeatedly reported depression and suicidal ideations to
practitioners at MHC. (Tr. 235, 246, 252, 259, 261). Dr. Kazi Ahmad performed a psychiatric
evaluation of Plaintiff and found he was alert and oriented, his concentration was “good,” his
attention and comprehension were within normal limits, and his interpersonal behaviors were
within normal limits; however, his fund of knowledge was limited. (Tr. 254, 256). Despite
Plaintiff’s reported suicidal ideations, Dr. Ahmad’s risk assessment indicated that Plaintiff did
not pose a high risk to himself or others. (Tr. 256). Dr. Ahmad diagnosed Plaintiff with “major
depression with psychosis” and prescribed Celexa for his depression and anxiety, and Vistaril for
his agitation. (Tr. 257). At a follow-up appointment on November 20, 2009, Plaintiff and his
brother reported that, after a few days of medication, Plaintiff was less angry, fought less, and
had no suicidal thoughts. (Tr. 250).
About two months later, however, on January 13, 2010 Plaintiff reported mood swings
and that he was not using the CPAP for his sleep apnea. (Tr. 248). Dr. Sultana Begum noted
Plaintiff’s mood was depressed, anxious, and irritable and his affect was anxious. (Tr. 249).
Approximately three weeks later, Plaintiff’s mother reported he was “doing great” and his
depression and anxiety were better. (Tr. 245). On the next few visits, Gloria Noah noted that
Plaintiff was taking the medications as prescribed, his mood was stable, and he “feels good.”
(Tr. 235, 239, 241). On March 31, 2010 and May 5, 2010 (over a year after his alleged disability
onset date), Plaintiff reported that he wanted to find a job, but had not been successful. (Tr. 23435, 239-40). Plaintiff was seen on four occasions from October 2010 through April 2011 and
reported his mood as “doing great,” “fairly well,” “fine,” and “feeling better.” (Tr. 346, 348,
350, 352). At these meetings, a minor adjustment was made in Plaintiff’s prescription dosage,
but otherwise Plaintiff was described as stable. (Tr. 346-53).
On June 13, 2009, Plaintiff was referred by Disability Determination Services (“DDS”) to
Dr. Bharat Vakharia for a disability examination. (Tr. 274-78). Dr. Vakharia found that Plaintiff
weighed 308 pounds. (Tr. 274). He noted that Plaintiff’s movement of his cervical spine was
limited by neck and back pain; movement of his right hip was significantly limited; he
experienced lower back pain from flexing his knee; was walking with a minimal limp on his
right leg; and could not squat more than seventy degrees because of lower back and hip pain.
(Tr. 274-76). Dr. Vakharia also noted Plaintiff’s previous diagnosis of a tilted pelvis and
scoliosis, which has caused moderate, on and off, pain in Plaintiff’s lower back and right hip
since he was fifteen years old. (Tr. 274).
Dr. Mary Arnold, Psy. D., performed a psychological evaluation of Plaintiff on June 30,
2009. (Tr. 282). Dr. Arnold stated that Plaintiff’s mood and affect are “congruent in the normal
range” and that he was alert and oriented. (Tr. 286). Plaintiff was able to respond to questions
regarding his fund of information and his abstract reasoning ability, his speech was fluid, he
made eye contact, and his response times were within “the usual range.” (Id.). Dr. Arnold
estimated that Plaintiff’s full-scale intelligence quotient (“FSIQ”) in the low average range. (Id.).
Dr. Arnold’s diagnostic impression included Plaintiff’s self-reported ADHD, a global assessment
of functioning (“GAF”) score of 60, a history of individualized education programs through the
twelfth grade, in addition to his prior physical diagnoses. (Tr. 287). Plaintiff also told Dr.
Arnold that his daily activities included dressing independently, cleaning his room, washing
dishes, performing yard and garden work, feeding his family’s animals, going to the lake and to a
fireworks show, and playing basketball for short periods. (Id.).
A physical summary was prepared by Dr. Glenn Carmichael on July 9, 2009. Dr.
Carmichael recommended a light residual functional capacity (“RFC”) for Plaintiff, with
occasional postural, and safety precautions based on his degenerative disk disease and morbid
obesity. (Tr. 292). On July 24, 2009, Dr. Guendalina Ravello, Ph. D., performed a psychiatric
review technique of Plaintiff’s medical evidence of record.
determined that Plaintiff possessed the following disorders: organic mental disorders, including
ADHD and a learning disability; a history of mood disorder; and a history of OCD. (Tr. 294,
Dr. Ravello opined that Plaintiff possessed the following functional limitations: a
moderate limitation in maintaining concentrations, persistence, or pace; a mild restriction in his
daily living activities; no limitation in his ability to maintain social functioning; and no episodes
of decompensation of extended duration. (Tr. 303). In conclusion, Dr. Ravello found that
Plaintiff did not satisfy the “B” criteria of the listings, and “the evidence does not establish the
presence of the ‘C’ criterion” for either Plaintiff’s organic mental, affective, or anxiety-related
impairments. (Tr. 304).
On the same date, Dr. Ravello evaluated Plaintiff’s Mental RFC.
concluded that Plaintiff has moderate limitations in the following abilities: understanding and
remembering detailed instructions; maintaining attention and concentration for extended periods;
sustaining an ordinary routine without special supervision; working in coordination with or
proximity to others without being distracted by them; completing a normal workday and
workweek without interruptions from psychologically based symptoms; and performing at a
consistent pace without an unreasonable number and length of rest periods. (Tr. 307-08). In his
RFC assessment, Dr. Ravello recommended that Plaintiff, based on his limited ability for
sustained concentration and persistence, do the following: work at his own work station to limit
distractions from others; avoid excessive workloads, quick decision making, rapid changes and
multiple demands; attend to simple tasks for two hours with all customary breaks; and have
casual supervision. (Tr. 309). In the categories of understanding and memory, social interaction,
and adaption, Dr. Ravello concluded that Plaintiff has no limitations. (Id.).
At the recommendation of his attorney, Plaintiff visited Dr. Jon Rogers, Ph.D. on August
25, 2010 for a psychological evaluation. (Id.). Plaintiff reported a litany of symptoms to Dr.
Rogers, who categorized them as depression, anxiety/panic, OCD, manic-like symptoms,
unstable interpersonal relationships, impulsivity, and anger. (Tr. 326). Plaintiff reported his
physical diagnoses to Dr. Rogers, and indicated that side effects from his medications cause
dizziness, light-heartedness, memory problems, difficulty concentrating, forgetfulness,
sluggishness, trouble sleeping, constipation, and diarrhea. (Tr. 327). Dr. Rogers noted that
Plaintiff was dressed appropriately, nicely groomed, alert, cooperative, had no remarkable
mannerisms, his motor activity was average, his affect was flat, and his mood appeared
depressed. (Tr. 328). He also determined that Plaintiff’s abstraction abilities, thought content,
and fund of information were limited. (Tr. 329). Plaintiff possessed a full scale IQ of seventyone on the Wechsler Adult Intelligence Scale 3rd Edition (“WAIS-III”), which Dr. Rogers
indicated places him in the borderline mental functioning range.
determined Plaintiff is functionally illiterate in word reading, numerical operations, and spelling,
and has a GAF score of 48.
Dr. Rogers opined that Plaintiff was unable to meet
competitive standards in nearly all categories of mental abilities and aptitudes needed to do
unskilled work. (Tr. 332-33).
Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520.
First, the ALJ must determine whether the claimant is engaging in substantial gainful activity.
20 C.F.R. § 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing
significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is
work that is done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant
engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §
Second, the ALJ must determine whether the claimant has a medically
determinable impairment or a combination of medical impairments that significantly limits the
claimant’s ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such
impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether
the claimant’s impairment meets or medically equals the criteria of an impairment listed in 20
C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.
If such criteria are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under
the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ
must first determine the claimant’s residual functional capacity (“RFC”), which refers to the
claimant’s ability to work despite his impairments. 20 C.F.R. § 404.1520(e). In the fourth step,
the ALJ determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant
work, then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to
perform past relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. §
404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether the claimant
is able to perform any other work commensurate with his RFC, age, education, and work
experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from the claimant to the
ALJ to prove the existence, in significant numbers, of jobs in the national economy that the
claimant can do given his RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g),
Here, the ALJ found that: (1) Plaintiff had not engaged in substantial gainful activity
since the onset of his alleged disability; (2) his severe impairments include affective mood
disorders and osteoarthritis; but (3) his medically determinable impairments did not meet or
medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1.
According to the ALJ, Plaintiff’s subjective complaints were not credible because of their
inconsistency with the medical evidence and his description of his own daily activities. (Tr. 22).
The ALJ found Plaintiff’s daily activities, which include cooking, shopping, driving, doing
chores, and playing basketball, among others, were inconsistent with Plaintiff’s complaints of
disabling symptoms and limitations. (Id.). The ALJ also noted that Plaintiff stopped working
because of a “big layoff” (rather than his allegedly disabling impairment) and that he was
looking for work, which the ALJ reasoned, indicated that Plaintiff himself believed he can
maintain gainful employment. (Id.). Little weight was given to the opinion of Dr. Rogers that
Plaintiff has serious impairments in social, occupational, and school functioning because his
diagnosis was inconsistent with the medical evidence. (Id.). Further, the ALJ emphasized that
Plaintiff sought Dr. Rogers’s examination and opinion not for treatment purposes, but through an
attorney referral. (Id.).
After consideration of Plaintiff’s subjective complaints, his daily activities, and the
medical evidence, the ALJ found that Plaintiff has the RFC to perform the full range of light
work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that Plaintiff is additionally
limited to unskilled work. (Tr. 21). At step four, in determining whether Plaintiff could perform
his past relevant work, the ALJ considered the testimony of the vocational expert (“VE”). (Tr.
23). The VE testified that Plaintiff’s previous jobs, as a fast food worker and assembler, were
each light unskilled work and his job as an industrial cleaner was an unskilled medium job. (Tr.
55). After reviewing the exhibits in the file, the VE testified that, in his opinion, Plaintiff had the
RFC to perform his past work as a fast food worker and assembler. (Tr. 56). Comparing
Plaintiff’s RFC with the VE’s testimony regarding the physical and mental demands of his past
relevant work, the ALJ found that Plaintiff is capable of performing his past relevant work as a
fast food worker and assembler under 20 C.F.R. §§ 404.1565 and 416.965. (Tr. 23). The ALJ
concluded that Plaintiff has not been under a disability as defined by the Act and is not entitled to
a period of disability, DIB, or SSI. (Tr. 23). 20 C.F.R. §§ 404.1520(f) and 416.920(f).
Plaintiff’s Argument for Reversal
Plaintiff seeks to have the ALJ’s decision, which became the final decision of the
Commissioner following the denial of review by the Appeals Council, reversed, or in the
alternative, remanded for further consideration. (Pl’s. Br. at 9). Although Plaintiff has divided
his discussion into two topics, in the interest of carefully examining the merits of Plaintiff’s
claim, the court has scrutinized his brief and found three specific allegations for review. (Pl.’s
Br. at 5-8).
Plaintiff argues the ALJ erred (1) in his evaluation of Plaintiff’s functional
limitations due to obesity; (2) by improperly weighing the medical evidence of record, including
the opinions of Dr. Rogers when determining Plaintiff’s mental RFC; and (3) by improperly
questioning the VE and improperly relying on the VE’s testimony.2 Id.
Standard of Review
The only issues before this court are whether the record reveals 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 whether the correct legal standards were applied. See Lamb v. Bowen, 847
F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42
U.S.C. § 405(g) mandates that the Commissioner’s 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)).
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 Commissioner’s factual findings
must be affirmed even if the evidence preponderates against the Commissioner’s findings. See
Martin, 894 F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s
At several points in the record, there are references to Plaintiff’s “pain.” A claimant’s statements about
the intensity, persistence, or functionally limiting effects of pain or other symptoms requires (1) evidence of an
underlying medical condition and (2) objective medical evidence that confirms the severity of the alleged pain
arising from that condition or (3) that the objectively determined medical condition is of such severity that it can be
reasonably expected to give rise to the alleged pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). If
supported by medical evidence, a claimant’s subjective testimony may satisfy the pain standard and support a
finding of disability. See Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). On this appeal, Plaintiff does
contend his “pain” is disabling. Accordingly, even though there are references to his pain in the record, that is not
an issue before this court.
findings is limited in scope, the court also notes that review “does not yield automatic
affirmance.” Lamb, 847 F.2d at 701.
After careful review, and for the reasons stated below, the court concludes the ALJ’s
decision is supported by substantial evidence and correct legal standards were utilized.
The ALJ’s Physical Residual Functional Capacity Findings are Based on
Plaintiff claims the ALJ failed to follow SSR 02-1p when evaluating the limitations
caused by his obesity, and thus erred in his Physical RFC finding. (Pl.’s Br. at 6). SSR 02-01p
specifically contemplates obesity serving as a functional limitation, either singularly or in
combination with other impairments. To be sure, some courts have found that obesity may serve
as a functional limitation. See Thomason v. Barnhart, 344 F. Supp.2d 1326 (N.D. Ala. 2004);
Early v. Astrue, 481 F. Supp.2d 1233 (N.D. Ala. 2007). However, here, both the objective
medical evidence and Plaintiff’s daily activities constitute substantial evidence supporting the
ALJ’s finding that Plaintiff’s complaints of limitations were not credible and his obesity was not
a limitation on his RFC. (Tr. 21-23). See Lewis v. Comm’r of Soc. Sec., 487 Fed. App’x. 481
(11th Cir. 2012) (holding that the ALJ properly found claimant’s morbid obesity was a severe
impairment and that, despite his obesity, the claimant retained the RFC to perform light work).
When determining a claimant’s RFC, first the ALJ finds what medically determinable
impairments could reasonably be expected to cause a claimant’s symptoms and pain. 20 C.F.R.
§§ 404.1520(e), 404.1545, 416.9120(e), 416.945. Here, the ALJ determined Plaintiff’s obesity is
a severe impairment. (Tr. 23). The ALJ then evaluates the intensity, persistence and limiting
effect of the symptoms derived from a claimant’s impairments to determine whether they limit
his functioning. 20 C.F.R. §§ 404.1529, 404.1545, 416.929, 416.945.
Here, the ALJ determined that Plaintiff’s daily activities are inconsistent with the alleged
disabling limitations and constitute substantial evidence supporting the ALJ’s finding that
Plaintiff’s claimed limitations due to obesity are not credible. (Tr. 21-23). While it is true that
performing household chores is not enough, in and of itself, to immediately rule out disability,
see Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997), the ALJ may consider a claimant’s
daily activities in determining how much his symptoms limit his ability to work. 20 C.F.R. §
404.1529(c)(3)(i); Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (stating that the ALJ
may consider daily activities at the fourth step of the sequential evaluation process); Hennes v.
Comm’r of SSA, 130 Fed. App’x. 343, 348-49 (11th Cir. 2005) (claimant’s complaints “were
belied by her testimony that she could shop for groceries and cook meals with her husband, put
clothing in the washing machine, fold and hang clothing, and crochet.”).
activities include: preparing meals; “fix[ing]” his car; performing household chores, including
his own laundry; playing video games; caring for his family’s cats, goat, and pig; leaving the
house on his own and driving; shopping for groceries up to five times in a month;3 playing video
games four nights a week and basketball twice a week; and an ability to pay bills, count change,
handle a savings account, and use a checkbook. (Tr. 42, 44, 154, 157, 158). Plaintiff’s daily
activities consist of much more than simple household chores, are inconsistent with his
complained of limitations, and constitute substantial evidence supporting the ALJ’s finding that
Plaintiff’s claimed limitations are not credible. 20 C.F.R. § 404.1529(c)(3)(i); Macia, 829 F.2d
The ALJ specifically stated that the inconsistency between Plaintiff’s subjective
complaints regarding the severity of his symptoms, the objective medical evidence of record, and
Plaintiff testified at the hearing that he shops for groceries once a month; however, his testimony is
inconsistent with his previous statement that he shops for groceries five times a month. (Tr. 44, 157).
his own daily activities were the basis for discrediting his complaints. The ALJ’s RFC finding is
supported by substantial evidence and the proper legal standards were applied. (Tr. 21-23).
Marbury, 957 F.2d at 839; Foote, 67 F.3d 1553, 1562 (11th Cir. 1995) (“A clearly articulated
credibility finding with substantial supported evidence in the record will not be disturbed by a
The ALJ’s Mental Residual Functional Capacity Findings are Supported by
Substantial Evidence and He Did Not Err in Assessing the Opinion of Dr.
Plaintiff next contends that the ALJ erred by (1) failing to derive any mental RFC
findings; (2) not considering his affective disorders when determining his RFC; and (3) rejecting
the opinion of Dr. Rogers. (Pl’s. Br. at 7-8). The proper procedure for determining a claimant’s
RFC is a two-step process.
First, the ALJ determines whether a claimant has medically
determinable impairments that could reasonably be expected to produce the claimant’s alleged
pain or symptoms. Second, the ALJ evaluates the intensity, persistence and limiting effect of the
claimant’s symptoms to determine whether they limit the claimant’s functioning. 20 C.F.R. §§
404.1529, 404.1545, 416.929, 416.945. The ALJ considered Plaintiff’s affective disorders as
medically determinative impairments that could reasonably produce Plaintiff’s symptoms. (Tr.
18, 21-22). However, the ALJ determined that Plaintiff’s statements concerning the intensity,
persistence and limiting effects of his symptoms were not credible. (Tr. 22). With specific
regards to the intensity of Plaintiff’s affective disorders, the ALJ relied on evidence that
Plaintiff’s mental health had improved since he began a treatment regime. (Tr. 22, 340-53).
Notably, this improvement was reported at Cullman Internal Medicine and Mental Healthcare of
Cullman between October 8, 2010 and April 15, 2011; this is after Dr. Rogers’s August 25, 2010
examination of Plaintiff and is inconsistent with the symptoms and limiting effects found by Dr.
Rogers. (Tr. 326-34, 340-53).
The ALJ’s decision to give little weight to Dr. Rogers’s opinion is supported by
substantial evidence. Dr. Rogers examined Plaintiff on only one occasion, did not prescribe any
medications, or recommend a treatment plan for Plaintiff; therefore, his opinion is not to be
given the deferential status of a treating physician. (Tr. 326-44). 20 C.F.R. § 404.1527(c)(2);
McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (“Also their opinions are not entitled to
deference because as one-time examiners they were not treating physicians.”) (citing Gibson v.
Heckler, 779 F.2d 619, 623 (11th Cir. 1986) (rejecting the application of the treating physician
rule in the case of a one-time examiner). Moreover, the ALJ may reject any physician’s opinion
when the evidence of record supports a contrary conclusion, as long as the ALJ states his reasons
for doing so. See, e.g., Bloodsworth, 703 F.2d at 1240.
The ALJ’s stated reasons for giving Dr. Rogers’s opinion little weight included his
conclusion that it was inconsistent with the medical evidence as a whole and his finding that
there was not a treating relationship between Dr. Rogers and Plaintiff. (Tr. 23). In his brief,
Plaintiff brings to the court’s attention the GAF score assessed by Dr. Rogers and urges the court
to reverse and remand this case due to the ALJ’s failure to give weight to that particular score.
(Tr. 331, Pl’s. Br. at 8). However, the inconsistency between the GAF score of 48 assessed by
Dr. Rogers and the GAF score of 60 assessed Dr. Arnold is a good example of how Dr. Rogers’s
opinion is inconsistent with the medical evidence of record. (Tr. 287, 305, 331). Plaintiff also
self-reported very different symptoms during his visit to Dr. Rogers compared with his visits to
Dr. Arnold, Dr. Friedman, and the practitioners at Mental Healthcare of Cullman. (Compare Tr.
326-34 with Tr. 285-87, 342-53). The inconsistency between Plaintiff’s reports to Dr. Rogers
(that, without question, affected Dr. Roger’s opinion) and the objective medical evidence is also
substantial evidence supporting the ALJ’s decision to discount Dr. Rogers’s’ opinion.4 20 C.F.R.
§§ 404.1527(c)(4), 416.9127(c)(4).
The ALJ Properly Relied on the Vocational Expert’s Testimony
Finally, Plaintiff contends that the ALJ relegated the duty to determine Plaintiff’s RFC to
the VE and gave the VE “carte blanche” authority to “pick and choose” limitations from the
record. (Pl.’s Br. at 5). The court disagrees.
Of course, Plaintiff correctly notes that the responsibility for deriving an RFC is the
ALJ’s—not the VE’s. 20 C.F.R. § 404.1546(c). However, Plaintiff misses the mark in assessing
the ALJ’s use of the VE’s testimony. The ALJ did not use the VE’s testimony in determining
Plaintiff’s RFC. (Tr. 21-23). Instead, the ALJ properly considered the medical evidence of
record, the opinion evidence, and the testimony of Plaintiff during the hearing, all of which were
proper sources when determining Plaintiff’s RFC. (Id.). See 20 C.F.R. §§ 404.1527, 404.1529,
404.1567(b), 416.927, 416.929, 416.967(b). Only after determining that Plaintiff possessed the
RFC to perform the full range of light work, with an exception that it must be unskilled work, did
the ALJ consider the VE’s testimony. (Tr. 21-23).
The ALJ properly questioned the VE regarding Plaintiff’s ability to do his past relevant
work. Accordingly, the VE’s testimony is substantial evidence that supports the ALJ’s finding
that Plaintiff could do his past relevant work. (Tr. 23, 54-62). See 20 C.F.R. § 404.1560(b)(2);
This is not a case where the ALJ’s sole reason for rejecting a physician’s opinion is that it was solicited at
the request of an attorney on one occasion. Cf. Miles v. Chater, 84 F.3d 1397 (11th Cir. 1996). In Miles, the ALJ
observed that the opinion of an attorney referred physician “almost invariably conclude[s]” that a claimant is
disabled and thereby discredited that opinion without any substantial evidence. Id. at 1399-1401. The Eleventh
Circuit held that an ALJ’s rejection of a physician’s opinion based only on their status as attorney-referred, without
any substantial evidence, unfairly biased the claimant. Id. Here, the ALJ’s statement regarding Dr. Rogers’s status
as an attorney-referred physician is not a reversible error because substantial evidence, in the form of inconsistency
with the objective medical evidence and Plaintiff’s daily activities, supports the ALJ’s determination that Dr.
Rogers’s opinion is entitled to little weight.
Hennes, 130 Fed. App’x. at 346. (holding that a VE’s testimony regarding the mental or physical
demands of a claimant’s past relevant work is substantial evidence that can support an ALJ’s
finding for step four). The VE testified that Plaintiff’s previous work as a fast food worker and a
production assembler are each unskilled light jobs according to the Dictionary of Occupational
Titles, while Plaintiff’s previous work as a sanitary worker is an unskilled medium job. (Tr. 55).
Based on the exhibits in the record, the VE testified that Plaintiff would be limited to unskilled
light work. (Tr. 55-57). The VE did testify in the alternative that if Dr. Rogers’s opinion were
valid, that would preclude Plaintiff from performing any work. However, this is of no help to
Plaintiff here. As stated above, the ALJ’s decision to discredit Dr. Rogers’s opinion is supported
by substantial evidence. (Tr. 55). Therefore, the VE’s testimony is substantial evidence that
supports the ALJ’s finding at step four that Plaintiff, in light of his RFC finding, is capable of
performing his past relevant work as a fast food worker and assembler. (Tr. 23). See 20 C.F.R. §
404.1560(b)(2); Hennes, 130 Fed. App’x. at 346.
The court concludes that the ALJ’s determination that Plaintiff is not disabled is
supported by substantial evidence and proper legal standards were applied in reaching this
determination. The Commissioner’s final decision is therefore due to be affirmed, and a separate
order in accordance with this memorandum of decision will be entered.
DONE and ORDERED on August 28, 2013.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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