Riggins v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 8/19/2014. (AVC)

FILED
2014 Aug-19 PM 04:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
PAUL EUGENE RIGGINS,

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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security, }
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Defendant.
}

Civil Action No.: 5:13-CV-01472-RDP

MEMORANDUM OF DECISION
Plaintiff Paul Riggins brings this action pursuant to Title II of Section 205(g) and Title
XVI of Section 1631(c)(3) of the Social Security Act (the “Act”), seeking review of the decision
of the Commissioner of Social Security (“Commissioner”) denying his claim for a period of
disability, disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). See
also, 42 U.S.C. §§ 405(g) and 1383(c). Based on 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.
I.

Proceedings Below
Plaintiff filed for disability, DIB, and SSI on April 23, 2012, 1 and alleged an onset date of

disability of January 1, 2008. 2 (Tr. 17, 230). Plaintiff’s applications were denied on June 28,
2012. (Tr. 156-160, 230). Plaintiff then requested (Tr. 166-167), and received a hearing before
Administrative Law Judge William F. Taylor (“ALJ”) on March 11, 2013. (Tr. 70-85). In his
1

Plaintiff previously filed Title II and Title XVI applications on December 8, 2008. Plaintiff‘s applications
were denied by the Appeals Council and are now pending at the district court level. (Tr. 17).
2

Plaintiff originally claimed June 1, 2008 (Tr. 17) as the onset date of his current disability, but amended
the date to October 19, 2011. (Tr. 228).

decision dated March 29, 2013, the ALJ determined that Plaintiff was not disabled under Section
1614(a)(3)(A) of the Act since October 19, 2011, Plaintiff’s amended onset date of disability.
(Tr. 228). After the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision
(Tr. 1-4), that decision became the final decision of the Commissioner and therefore a proper
subject of this court’s appellate review.
At the time of the hearing, Plaintiff was forty-five (45) years old and had a seventh grade
special education. (Tr. 24). Plaintiff suffers from cervical degenerative disc disease, third degree
burns, Chronic Obstructive Pulmonary Disease (“COPD”), anxiety, depression, and Paranoid
Schizophrenia. (Tr. 242).
With regard to his domestic life, Plaintiff reported his daily routine includes going
outside three to four times each day to sit on the porch, stands outside, but for no more than
fifteen minutes, sits in a chair, and then heads inside to lie on the couch. (Tr. 259, 261-262).
Plaintiff also reported he goes to the store, but can only shop for five minutes because he cannot
tolerate being around people. (Tr. 262). Plaintiff claims he mows the lawn, which takes three to
four hours, and prepares meals for himself. (Tr. 261). When asked about his hobbies, Plaintiff
reported he watches television all day and “plays ball.” (Tr. 263). Plaintiff wears glasses because
his left eye “goes where it wants” and he often closes it to avoid seeing double. (Tr. 265).
Plaintiff has been prescribed several medications -- including Prozac, sleeping pills, and
Neurontin -- but states he cannot afford the medicines. (Tr. 79).
Plaintiff has past relevant work as a tractor-trailer truck driver. That job required medium
demands. A tractor-trailer truck driver position is considered to be a semi-skilled job. (Tr. 76).
Plaintiff has not worked in that field in several years due to his COPD, neck and back pain, and
because he continuously “falls out of his truck.” (Tr. 75).

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Prior to his alleged period of disability, in 2005, Plaintiff had surgery on his spine
performed by Dr. Joel D. Pickett. On October 30, 2006, Dr. Pickett examined Plaintiff because
he had been experiencing back, hip, and leg pain for six weeks. (Tr. 326). Dr. Pickett found mild
degenerative changes at L5-S1, but no evidence of nerve root compression. (Tr. 329). Dr. Pickett
noted that Plaintiff’s condition did not require surgery, and recommended he go to physical
therapy three times each week, for four weeks. (Tr. 330). The record shows Plaintiff has not seen
Dr. Pickett since 2006. (Tr. 403). In order to control his pain, Plaintiff was seen at the Central
North Alabama Health Services in Huntsville, Alabama, where he was prescribed 5mg of Lortab,
twice each day. (Tr. 403).
Plaintiff next presented to the Central North Alabama Health Services on October 11,
2011, complaining of headaches, vertigo, and muscle spasms. (Tr. 355). He was again prescribed
pain medication. (Tr. 355). He returned on October 18, 2011, and again complained of headaches
and neck pain. (Tr. 354). Plaintiff was prescribed Ativan, Flexeril, Ultram, and Mobic (Tr. 354).
The following day, October 19, 2011, the alleged onset date of Plaintiff’s disability,
Plaintiff was treated in the Intensive Care Unit at the Crestwood Medical Center in Huntsville
and admitted due to an overdose of prescription drugs. (Tr. 363). Dr. Rodney Morris noted
Plaintiff’s family stated he was under a lot of stress and they were concerned he was trying to kill
himself. Plaintiff denied suicidal intentions and said he suffered from an accidental overdose.
(Tr. 363). Dr. Morris reported no hallucinations or delusions and no homicidal ideations. (Tr.
363). Plaintiff was diagnosed with depressive disorder, adjustment disorder, and severe
psychological stressors. Dr. Morris’s assessment was that this was a suicide attempt by
overdosing on prescription medication. (Tr. 368).

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On October 21, 2011, Plaintiff was examined by Dr. Roza B. Cieszkowski at the
Crestwood Medical Center. Dr. Cieszkowski reported Plaintiff did overdose, “because he wasn’t
sure if he wanted to go on like this” finding him “hopeless and helpless.” (Tr. 370). Plaintiff
disclosed he previously tried to overdose on aspirin in 1991. (Tr. 370). Plaintiff was admitted to
the Crestwood Behavioral Unit where he was given medication. (Tr. 372). Dr. Cieszkowski
diagnosed Plaintiff with major depressive disorder, anxiety disorder, and assigned him a GAF
score of fifty-five (55). (Tr. 371). However, Dr. Ciezkowski did report Plaintiff was improving
and no longer had suicidal thoughts. (Tr. 372). Plaintiff was discharged on October 24, 2011.
(Tr. 372).
On November 30, 2011 Plaintiff was seen at the Mental Health Center of Madison
County. Plaintiff reported he was overwhelmed, unable to sleep, tearful, experiencing
hallucinations, and felt worthless. (Tr. 387). Plaintiff disclosed his brother had been burned in a
trailer, and he was left to fend for himself at fifteen years of age. (Tr. 387). Plaintiff’s goal at
this time was to function better and take care of himself. (Tr. 432).
On March 27, 2012 Plaintiff saw Dr. Alan Piha at the Mental Health Center of Madison
County. (Tr. 378). Plaintiff stated he had improved in regard to depression, but hated getting out
in public more than fifteen to twenty minutes. (Tr. 378). Plaintiff reported a lot of pain in his left
side. (Tr. 378). Dr. Piha noted major depression and planned an extended visit to discuss medical
options due to his weight and financial situation. (Tr. 421). Plaintiff continued to be evaluated
and treated by the Mental Health Center of Madison County. (Tr. 418).
On June 19, 2012, Plaintiff was examined by Jon G. Rogers, Ph.D., consultatively on
behalf of the Social Security Administration. (Tr. 395). Plaintiff reported to Dr. Rogers he had
depressed mood, insomnia, feels worthless and hopeless, wants to be by himself, and

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experienced fits of anger. Plaintiff complained of pain from past injuries (such as burns),
degenerative disc disease, and COPD, and reported smoking two or more packs of cigarettes
daily. (Tr. 395-396). Dr. Rogers found Plaintiff capable of functioning independently, but his
daily activities below average. (Tr. 398). (Tr. 401). The doctor diagnosed Plaintiff with pain
disorder associated with psychological factors, depressive disorder, anxiety disorder, COPD, and
degenerative disc disorder. (Tr. 399). Dr. Rogers noted Plaintiff’s ability to understand,
remember, and carry out instructions of supervisors and co-workers would be severely impaired.
(Tr. 401). Plaintiff was assigned a GAF score of fifty (50). (Tr. 399).
The following day, June 20, 2012, Plaintiff was examined by Dr. Sherry A. Lewis. (Tr.
402). Dr. Lewis noted Plaintiff’s chief complaints were neck pain, anxiety, COPD, and his eyes.
Plaintiff further stated that he could not keep a job for more than three to four months because he
is easily upset. (Tr. 406). Dr. Lewis assessed Plaintiff as having cervical neck pain with
radiculopathy, Strabismic Amblyopia, situational anxiety and depression, COPD, and morbid
obesity. Her findings were that Plaintiff was capable of performing activities of work. (Tr. 409).
On June 20, 2012, State Agency Physician, Dr. Samuel D. Williams, reviewed the work
of Drs. Lewis and Rogers. He reported Plaintiff needed to have a work schedule that was flexible
and well-spaced. (Tr. 126). He further reported Plaintiff can sustain non-intense interaction with
co-workers, supervisors, and the public. (Tr. 126).
Toward the end of Plaintiff’s hearing, the ALJ posed a hypothetical question to the
Vocational Expert (“VE”). (Tr. 82). The ALJ began by describing:
An individual as one who is young with seven years of special
education, ability to read, write, add, and subtract. This person has
the ability to perform a range of light work with a sit/stand option,
who can occasionally perform overhead lifting. This person cannot
be working at unprotected heights, nor constantly use his upper left
extremity. This person can have no exposure to fumes, odors,
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gasses, and must avoid extreme temperatures and heavy vibrations.
(Tr. 82). The individual can perform simple, unskilled work, and
the change in workplace, and interaction with others should be
minimal.
(Tr. 82).
The ALJ asked the VE if there were any jobs in the State of Alabama and the United
States for someone with the skill set as described. The VE suggested the light level unskilled
jobs of product maker, packager, and product bagger. (Tr. 83). The ALJ then asked if any jobs
existed where the lifting limitations were at the sedentary range. The VE suggested the sedentary
jobs of table worker, inspector, and document scanner. (Tr. 84). Finally, the ALJ asked the VE if
Plaintiff could perform any of the listed jobs if he possessed the limitations he described in his
testimony at the hearing with the ALJ. The VE testified he would not be able to perform any of
the jobs he had listed. (Tr. 84-85).
Based on the VE’s testimony, Plaintiff testimony, and the entirety of the record, the ALJ
determined that there exists a significant number of jobs in the State and national economy that
Plaintiff could perform. (Tr. 17).
II.

ALJ Decision
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. §
404.1520(b).

Second, the ALJ must determine whether the claimant has a medically

determinable impairment or a combination of medical impairments that significantly limits the
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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 her 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),
404.1560(c).
In the present case, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since October 19, 2011. The ALJ determined, Plaintiff has a combination of severe
impairments -- degenerative disc disease of the lumbar and cervical spine, obesity, an affective
disorder, and an anxiety disorder -- which satisfies the second prong of the analysis as set forth in

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20 C.F.R. §§ 404.1520(c) and 416.920(c). (Tr. 19-20). However, the ALJ found that all these
impairments, individually or in combination, are insufficient to qualify Plaintiff for disability.
(Tr. 20). With regard to the third prong, the ALJ determined that Plaintiff has not had an
impairment or combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr. 20).
An ALJ must also examine the claimant’s ability to work despite impairments and a
claimant must provide medical evidence to support statements of severity. The ALJ recognized
Plaintiff’s impairments, but when comparing the claimed severity of his pain to the testimony
given, the ALJ determined the testimony was not fully credible. In the Function Report
completed by Plaintiff in May 2012, he indicated no limitations in the area of personal care.
Plaintiff prepares his own meals, mows the lawn, drives a car, shops in stores, and even lists
“playing ball” as a hobby. (Tr. 21). The ALJ relied on medical evidence when determining the
Plaintiff’s situation had improved. The ALJ recognizes Plaintiff was over-weight, but nowhere in
the medical records is there evidence this is a limiting factor in Plaintiff’s ability to work. The
ALJ noted that no treatment notes suggest that Plaintiff’s condition significantly impacts his
functional ability. (Tr. 22-23).
In the final steps of the analysis, the ALJ found Plaintiff unable to perform his past
relevant work as a tractor-trailer truck driver. (Tr. 24). However, based on the hypothetical
questions posed to the VE, the ALJ determined, taking into account Plaintiff’s age, education,
work experience, and RFC, that there are jobs that exist in significant numbers in the national
economy that Plaintiff can performed. (Tr. 25).

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III.

Plaintiff’s Argument for Reversal
Plaintiff presents a single argument for reversal – the ALJ erred in rejecting the opinion

of the SSA’s own consultative psychologist.
IV.

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
findings is limited in scope, the court also notes that review “does not yield automatic
affirmance.” Lamb, 847 F.2d at 701.

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V.

Discussion

After careful review, the court concludes that the ALJ’s determination that Plaintiff was
not disabled beginning October 19, 2011 is supported by substantial medical evidence and the
ALJ applied proper legal standards in reaching that decision. The court addresses Plaintiff’s
argument below.
A.

The ALJ Did Not Err In Rejecting the Opinion of the Consultative
Psychologist.

Dr. Rogers, the SSA’s consultative psychologist, stated that “Mr. Riggins’ ability to
understand, remember, and carry out instructions and respond appropriately to supervision, coworkers, and work pressure in a work setting would be severely impaired.” (Tr. 401). Plaintiff
contends the ALJ failed to give proper weight to Dr. Rogers’s opinion. (Pl.’s Mem. 8). Plaintiff
alleges his impairments are more than moderate, and are, in fact, severe. (Pl’s Mem. 9).
Specifically, Plaintiff alleges that Dr. Rogers’s findings are linked his psychological factors and
general medical condition. (Pl’s Mem. 9).
In the Eleventh Circuit case Crawford v. Commissioner of Social Security, the ALJ
rejected the opinion of the consultative psychologist. 363 F.3d 1155, 1160 (11th Cir. 2004). The
court ruled the ALJ gave proper weight to the consultative psychologist because the psychologist
had only examined the claimant on one occasion. Id. As the court noted, it is well established
that a doctor who examines a claimant only once is not a treating physician. McSwain v. Bowen,
814 F.2d 617, 619 (11th Cir. 1987); see also Crawford, 363 F.3d at 1160. In this case, Dr.
Rogers only examined the Plaintiff on one occasion. As a non-treating physician, Dr. Rogers
opinion is not entitled to controlling weight under 20 C.F.R. § 404.1527(c)(2). Perdue v. Colvin,
No. 1:12-cv-2864-AKK, 2012 WL 3689771, at *4 (N.D. Al. 2014). The ALJ “may reject the
opinion of any physician when the evidence supports a contrary conclusion.” Bloodwoth v.
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Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). Dr. Rogers gave Plaintiff a GAF score of 50. (Tr.
398-399). A GAF score of 50 is consistent with severe impairments; however, in this case,
neither the medical evidence nor Dr. Rogers’s own findings support such a score. See AMERICAN
PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 34
(4th ed. Rev. 2000) (Comm’r 6). In fact, Dr. Rogers reported that Plaintiff is able to function
independently (Tr. 388-389), a finding which itself appears inconsistent with such a low GAF
score. In addition, although Plaintiff claimed that he engaged in no activities outside of the home
(Tr. 79), he also testified that he goes to the store, mows the lawn, and plays ball. (Tr. 261-263).
The ALJ relied on the record as a whole in making his findings and rejecting Dr. Rogers’s
opinion. The ALJ’s finding are supported by substantial evidence in reaching his decision.
Finally, the Plaintiff contends the ALJ erred in stating there was no evidence that he had
been seen at the mental health center since 2012. (Pl. Mem. 8). The Commissioner concedes this
point but states it does not rise to the level of reversible error. The court agrees. The records after
July 2012 do not differ from the records the ALJ relied upon in making his decision. That is, the
records the ALJ reviewed and which were dated prior to July 2011 still support the decision to
reject the opinion of Dr. Rogers. In Diorio v. Heckler, the ALJ improperly stated the claimant
was approaching advanced age. 721 F.2d 726, 728 (11th Cir. 1983). The court ruled this to be a
harmless error because it did not affect the outcome. Id. In the present case, the ALJ did state an
incorrect fact, but the error was harmless because of the similarity of the records before and after
July 2012. (Compare Tr. 419-422, 429, 432-433 with Tr. 378-390. 423-429, 430-431).
B.

The ALJ Did Not Err in Giving Great Weight to the Opinion Of The State
Agency Physician

Plaintiff’s contention that the ALJ gave too much weight to Dr. Lewis’s opinion lacks
merit. (Pl. Mem. 9). Dr. Lewis’ assessment that Plaintiff can perform activities of work is
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consistent with the medical evidence of record in this case. Dr. Lewis’s assessment that Plaintiff
can work is consistent with the GAF score of 55 given him by Dr. Cieskowski upon his
discharge on October 21, 2011. (Tr. 371). To the contrary, Dr. Rogers assessed Plaintiff with a
GAF score of 50. (Tr. 399). The ALJ correctly rejected the opinion of Dr. Rogers, because his
findings are inconsistent with the record as a whole. Dr. Cieskowski’s assigned GAF score,
which is supported by substantial evidence in the record, reflects only moderate impairments and
further bolsters the opinion of Dr. Lewis when combined with the totality of evidence.
C.

The ALJ Did Not Err In
Recommendation

Failing

to

Address

The Physician’s

Plaintiff contends the ALJ erred in not providing the VE with all of his limitations,
specifically his need for a flexible daily schedule and well-spaced work setting, (Pl. Mem. 9).
The Commissioner counters that the opinion of Dr. Williams, the State Agency Medical
Consultant, was given weight, but not controlling weight. (Comm’r Mem. 8, Tr. 24). The ALJ
found Plaintiff has the ability to perform light work with a sit/stand option and thus rejected the
flexible schedule and well-spaced work setting limitations. (Tr. 20).
supported by substantial evidence.

Those findings are

Thus, as the Commissioner correctly noted, an ALJ’s

hypothetical need not include limitations that have already been rejected by the ALJ. See
Crawford v. Comm’r Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004). Therefore, the VE’s
responses to the ALJ’s questions (Tr. 83-84) constitute substantial evidence that Plaintiff has the
ability to perform several jobs available in the national economy. The decision of the ALJ is
supported by substantial evidence, and therefore is to be affirmed. See Wilson v. Barnhart, 284
F.3d 1219, 1227 (11th Cir. 2002).

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D.

The ALJ Did Adequately Develop the Record

Finally, Plaintiff contends the ALJ failed to fully develop the record. More specifically,
Plaintiff argues that the ALJ had a duty to obtain a CE or a medical source opinion. (Pl. Mem.
10). Although an ALJ has a duty to develop a full and fair record (Comm’r. Mem. 8); see Ellison
v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003), the court agrees with the Commissioner that
such a duty is cabined by the requirement that there be a sufficiently full and complete record
that will provide the ALJ with adequate information to make an informed decision. See Wilson v.
Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999). That is, where there is a full and complete record -and that is the case here -- there is no duty to further develop that record. The ALJ examined the
reports of multiple physicians, and had before him a record with extensive medical reports
pertaining to Plaintiff’s condition. (Tr. 324-433). He more than adequately developed the record.
VI.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff is not disabled is

supported by substantial evidence and the proper legal standards were applied in reaching this
determination. The Commissioner’s final decision is therefore due to be affirmed. A separate
order in accordance with this memorandum of decision will be entered.
DONE and ORDERED this August 19, 2014.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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