Kelly v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 3/27/2017. (KAM)

FILED
2017 Mar-27 AM 11:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JIMMY KELLY,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration,
Defendant.

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5:15-cv-2310-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Jimmy Kelly, appeals from the decision of the Commissioner

of the Social Security Administration (“Commissioner”), who issued a partially
favorable decision on his applications for Supplemental Security Income (“SSI”), a
period of disability, and Disability Insurance Benefits (“DIB”). Mr. Kelly timely
pursued and exhausted his administrative remedies and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Mr. Kelly was fifty-two years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision. (Tr. at 26, 149, 156.) He has a marginal education and
past work as a maintenance mechanic and heavy equipment operator. (Tr. at 20,

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207, 213, 227-31.) Mr. Kelly claims that he became disabled on December 18, 2013,
due to lower back pain resulting from degenerative disc disease and lumbar
stenosis. (Tr. at 38, 149, 156.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”).

See id. §§

404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The

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decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work.

See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

If the plaintiff’s

impairment or combination of impairments does not prevent him from performing
his past relevant work, the evaluator will make a finding of not disabled. See id.

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The fifth step requires the evaluator to consider the plaintiff’s RFC, age,
education, and work experience in order to determine whether the plaintiff can
make an adjustment to other work. See id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
If the plaintiff can perform other work, the evaluator will find him not disabled. Id.;
see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff cannot perform other
work, the evaluator will find him disabled.

20 C.F.R. §§ 404.1520(a)(4)(v),

404.1520(g), 416.920(a)(4)(v), 416.920(g).
If the plaintiff is found disabled at any point in the process, a determination
must also be made as to whether his disability continues through the date of the
decision. In order to show that a plaintiff’s disability does not continue through the
date of the decision, the evaluator must show that a medical improvement has
occurred which is related to the plaintiff’s ability to work. See 42 U.S.C. §
423(f)(1); 20 C.F.R. § 404.1594(b)(1)-(3). In making this determination, the
evaluator must follow an eight-step process for determining whether disability
benefits should be terminated due to medical improvement. Those steps are:
(1) Are you engaging in substantial gainful activity? If you are (and any
applicable trial work period has been completed), we will find
disability to have ended (see paragraph (d)(5) of this section).
(2) If you are not, do you have an impairment or combination of
impairments which meets or equals the severity of an impairment
listed in appendix 1 of this subpart? If you do, your disability will be
found to continue.
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(3) If you do not, has there been medical improvement as defined in
paragraph (b)(1) of this section? If there has been medical
improvement as shown by a decrease in medical severity, see step (4).
If there has been no decrease in medical severity, there has been no
medical improvement. (See step (5).).
(4) If there has been medical improvement, we must determine
whether it is related to your ability to do work in accordance with
paragraphs (b)(1) through (4) of this section; i.e., whether or not there
has been an increase in the residual functional capacity based on the
impairment(s) that was present at the time of the most recent
favorable medical determination. If medical improvement is not
related to your ability to do work, see step (5). If medical improvement
is related to your ability to do work, see step (6).
(5) If we found at step (3) that there has been no medical improvement
or if we found at step (4) that the medical improvement is not related
to your ability to work, we consider whether any of the exceptions in
paragraphs (d) and (e) of this section apply. If none of them apply,
your disability will be found to continue. If one of the first group of
exceptions to medical improvement applies, see step (6). If an
exception from the second group of exceptions to medical
improvement applies, your disability will be found to have ended. The
second group of exceptions to medical improvement may be
considered at any point in this process.
(6) If medical improvement is shown to be related to your ability to do
work or if one of the first group of exceptions to medical improvement
applies, we will determine whether all your current impairments in
combination are severe (see § 404.1521). This determination will
consider all your current impairments and the impact of the
combination of those impairments on your ability to function. If the
residual functional capacity assessment in step (4) above shows
significant limitation of your ability to do basic work activities, see step
(7). When the evidence shows that all your current impairments in
combination do not significantly limit your physical or mental abilities

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to do basic work activities, these impairments will not be considered
severe in nature. If so, you will no longer be considered to be disabled.
(7) If your impairment(s) is severe, we will assess your current ability
to do substantial gainful activity in accordance with § 404.1560. That
is, we will assess your residual functional capacity based on all your
current impairments and consider whether you can still do work you
have done in the past. If you can do such work, disability will be found
to have ended.
(8) If you are not able to do work you have done in the past, we will
consider one final step. Given the residual functional capacity
assessment and considering your age, education and past work
experience, can you do other work? If you can, disability will be found
to have ended. If you cannot, disability will be found to continue.
20 C.F.R. § 404.1594(f).
Applying the sequential evaluation process applicable to this case, the ALJ
first found that Mr. Kelly meets the insured status requirements of the Social
Security Act through December 31, 2017. (Tr. at 17.) He further determined that
Mr. Kelly has not engaged in SGA since December 18, 2013, the date he became
disabled. (Id.) According to the ALJ, from December 18, 2013, through June 8,
2015, the period during which Plaintiff was under a disability, he had the “severe”
impairment of “history of lumbar spinal fusion at L3-4 and L4-5 on December 6,
2014, with residuals consisting of mild to moderate pain and degenerative disc
disease at L2-3 with lumbar stenosis.” (Id.) However, he found that during that
time, this impairment neither met nor medically equaled the severity of any of the

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listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 18.) The
ALJ determined that from December 18, 2013 through June 8, 2015, Mr. Kelly had
the RFC to perform sedentary work except residuals from his back surgery would
preclude him from performing any significant standing, walking or sitting sufficient
to enable him to complete a standard eight hour work day. (Tr. at 19.) According to
the ALJ, from December 18, 2013, through June 8, 2015, Mr. Kelly was unable to
perform any of his past relevant work. (Tr. at 20.) He determined that Mr. Kelly
was an individual closely approaching advanced age, had a marginal education, and
could communicate in English, as those terms are defined by the regulations. (Id.)
He determined that Plaintiff’s job skills did not transfer to other occupations within
the RFC that he assigned. (Id.) The ALJ concluded that considering Plaintiff’s age
(closely approaching advanced), education (marginal), work experience (no job
skills that would transfer), and RFC (sedentary), Medical Vocational Rule 201.10
directed a finding that Plaintiff was disabled from December 18, 2013, through June
8, 2015. (Id.) Thus, the ALJ concluded that Plaintiff was under a disability within
the meaning of the Act from December 18, 2013, through June 8, 2015. (Tr. at 21.)
However, because the ALJ determined that a medical improvement had
occurred subsequent to Plaintiff’s period of disability and prior to his decision, the
ALJ moved on to the eight-step sequential evaluation process used in “medical

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improvement” cases. The ALJ first noted that Plaintiff has not developed any new
impairments since June 9, 2015, the date his disability ended, so his current severe
impairment is the same as that that was present from December 18, 2013, through
June 8, 2015. (Id.) The ALJ then stated that since June 9, 2015, Plaintiff has not had
an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Id.) According to the ALJ, medical improvement occurred as of June
9, 2015, the date Plaintiff’s disability ended. (Id.) The ALJ found that the medical
improvement that has occurred is related to Plaintiff’s ability to work because there
has been an increase in Plaintiff’s RFC. (Tr. at 22.) The ALJ found that as of June
9, 2015, Plaintiff has had the RFC to perform the full range of light work. (Id.) The
ALJ found, however, that Plaintiff is still unable to perform his past work. (Tr. at
24.) The ALJ noted that Plaintiff’s age category and education level has not
changed since June 9, 2015. (Tr. at 25.) He found that Plaintiff has no transferable
skills from any past relevant work and/or transferability of skills is not an issue in
this case. (Id.) The ALJ determined that because Plaintiff can perform a full range
of light work as of June 9, 2015, Medical-Vocational Rule 202.11 which directed a
finding that Plaintiff is not disabled. (Id.) The ALJ concluded that Plaintiff’s
disability ended June 9, 2015. (Id.)

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II.

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

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See 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)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)).

“The substantial evidence standard permits administrative decision

makers to act with considerable latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the

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proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,
883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

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

because the ALJ improperly found that he is capable of performing light work as of
June 9, 2015, by relying solely on the opinion of Plaintiff’s treating orthopedic
surgeon, Dr. Scott Hodges.
The SSA regulations dictate that an ALJ must give controlling weight to a
treating physician’s opinion if medically acceptable clinical and laboratory
diagnostic techniques support it and it is not inconsistent with the other substantial
evidence of record. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Social Security
Ruling (“SSR”) 96-2p. The Eleventh Circuit has echoed this mandate, holding

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that a treating physician’s testimony is entitled to “substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Crawford, 363 F.3d at 1159
(quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal
quotations omitted).
Dr. Hodges, a board certified orthopedist with more than twenty-five years
of experience, is Plaintiff’s treating physician. Dr. Hodges performed a lumbar
fusion on Plaintiff’s spine on January 6, 2014, and continued to see him for followups thereafter. (Tr. at 564, 655-58). On June 9, 2015, eighteen months after
surgery, Mr. Kelly came in for a follow-up appointment. (Tr. at 1664-65). Dr.
Hodges’s examination findings on that date revealed that Plaintiff’s gait, station,
and lower extremity motor strength were normal and sitting straight bilateral leg
raises were negative. (Id.) During the same examination, Mr. Kelly reported that
his current pain level was a five out of ten, and he felt sixty percent improvement
since his last visit two months prior. (Id.) Mr. Kelly reported that he was taking his
Percocet (10mg) every four hours, which he reported was effective in controlling
his pain. (Id.) Dr. Hodges noted that findings from a Magnetic Resonance Imaging
(“MRI”) test done on April 10, 2015, showed nothing acute. (Tr. at 1662.) Dr.
Hodges opined that Mr. Kelly was at maximum medical improvement and could
return to work as of that date with some restrictions. (Id.) Specifically, Dr. Hodges

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restricted Mr. Kelly to lifting 25 pounds occasionally and 15 pounds frequently.
(Id.) Light work under the SSA regulations involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of object weighing up to 10 pounds. See 20
C.F.R. §§ 404.1567(b), 416.967(b). In addition to releasing Mr. Kelly to light-level
work, Dr. Hodges indicated that follow-up appointments would only be scheduled
as needed. (Tr. at 1665.)
The ALJ gave great weight to the opinion of Dr. Hodges that Plaintiff could
return to work as of June 9, 2015, because it was “based upon a history of treatment
and consistent with objective medical findings [such] as physical examinations and
an MRI.” (Tr. at 23.)
Plaintiff argues that Dr. Hodges’s opinion on June 9, 2015, was contrary to
various treatment notes of Donna Pearson, Dr. Hodges’s physician’s assistant
(“PA”), dated January 30, 2014, January 23, 2015, March 20, 2015, April 17, 2015,
and July 10, 2015. (Tr. at 1661, 1667-74, 1690.) However, the treatment notes of Dr.
Hodges’s PA do not erode the validity of Dr. Hodges’s assessment that Plaintiff
could perform light work. As an initial matter, unlike a board-certified orthopedic
surgeon, a PA is not an acceptable medical source pursuant to the regulations. See
C.F.R. §§ 404.1513, 404.1527, 416.913, 416.927; SSR 06-03p. As an “other
source,” the ALJ must still consider the PA’s opinion and assess how much weight

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to afford it based on any applicable factors described in the regulations; however,
an ALJ is not required to give the opinion of an “other source” any special weight.
See 20 C.F.R. §§ 404.1527(d), 404.1513, 416.927(d), 416.913. On January 30, 2014,
and April 17, 2015, the PA wrote that Mr. Kelly was permanently unable to work
and “will need disability.” (Tr. at 1668, 1690). However, the former visit was
immediately after his back surgery, and the latter did not include a physical
examination of his spine. (Tr. at 1668, 1689.) Finally, during an appointment on
July 10, 2015, Dr. Hodges’s PA reported that Plaintiff can return to work and
perform modified duties, consistent with Dr. Hodges’s findings on June 9, 2015.
(Tr. at 1662.)
Plaintiff also argues that Dr. Hodges’s opinion contradicts the opinion of his
treating pain specialist, Dr. Calhoun. On August 20, 2014, Dr. Calhoun testified
that Kelly will never be able to return to work, regardless of the type of work. (Tr.
at 1123-24). However, the ALJ properly declined to accept this opinion because it
was made long before Dr. Hodges pronounced Mr. Kelly to be at maximum
medical improvement and, in any event, opinions such as whether a claimant is
disabled, the claimant’s RFC, and the application of vocational factors “are not
medical opinions, . . . but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive of a

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case; i.e., that would direct the determination or decision of disability.” 20 C.F.R.
§§ 404.1527(e), 416.927(d). The Court is interested in the doctors’ evaluations of
the claimant’s “condition and the medical consequences thereof, not their opinions
of the legal consequences of his [or her] condition.” Lewis, 125 F.3d at 1440. Such
statements by a physician are relevant to the ALJ’s findings, but they are not
determinative, as it is the ALJ who bears the responsibility for assessing a
claimant’s RFC. See, e.g., 20 C.F.R. § 404.1546(c).
Finally, Plaintiff argues that Dr. Hodges’s opinion contradicts his own
subjective complaints of pain. At the hearing, Mr. Kelly testified he experiences
pain daily that is at least an eight out of ten in severity. (Tr. at 52). He takes
Percocet and Cymbalta for his pain (tr. at 52-53), which leave him feeling “fuzzy
headed all the time.” (Tr. at 53). Mr. Kelly further testified that he can only lift ten
pounds or less, and that there are days he hurts so badly he cannot leave the house.
(Tr. at 55.) However, the ALJ found Plaintiff not entirely credible for several
reasons that are supported in the record: among them the fact that at his hearing,
Plaintiff testified that he was illiterate, but he has a history of skilled work and the
record does not show that he alleged illiteracy as an impairment; and the fact that
Plaintiff did not complain about medication side effects at any of his appointments

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with Dr. Hodges in June or July 2015. Plaintiff has not challenged the ALJ’s
credibility determination on appeal.
The Commissioner, and at the hearing level the ALJ, has the duty to weigh
the evidence, resolve material conflicts in testimony, and determine the case
accordingly. See Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986). Even if a
court disagrees with the ALJ’s resolution of the factual issues, and would resolve
those disputed factual issues differently, the decision must be affirmed where it is
supported by substantial evidence in the record as a whole. See Baker o/b/o Baker v.
Sullivan, 880 F.2d 319, 321 (11th Cir. 1989). In this case, substantial evidence and
proper legal analysis supports the ALJ’s decision that Plaintiff experienced medical
improvement as of June 9, 2015.
IV.

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

arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered.

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DONE and ORDERED on March 27, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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