Bowling v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge Gray M Borden on 7/16/21. (MRR, )
2021 Jul-16 PM 03:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAMES ASHLEY BOWLING,
Case No. 5:20-cv-641-GMB
On August 27, 2018, Plaintiff James Ashley Bowling filed an application for
a period of disability and disability insurance benefits. His alleged disability onset
date is October 16, 2016. Bowling’s application for benefits was denied at the initial
administrative level. He then requested a hearing before an Administrative Law
Judge (“ALJ”). The ALJ held a hearing on June 5, 2019, and denied Bowling’s
claims on July 15, 2019. Bowling requested a review of the ALJ’s decision by the
Appeals Council, which declined review on March 16, 2020. As a result, the ALJ’s
decision became the final decision of the Commissioner of the Social Security
Administration (the “Commissioner”) as of March 16, 2020.
Bowling’s case is now before the court for review pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). Under 28 U.S.C. § 636(c)(1) and Rule 73 of the Federal
Rules of Civil Procedure, the parties have consented to the full jurisdiction of a
United States Magistrate Judge. Doc. 11.
Based on a review of the parties’
submissions, the relevant law, and the record as a whole, the court concludes that
the decision of the Commissioner is due to be affirmed.
I. STANDARD OF REVIEW 1
The court reviews a Social Security appeal to determine whether the
Commissioner’s decision “is supported by substantial evidence and based upon
proper legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997).
The court will reverse the Commissioner’s decision if it is convinced that the
decision was not supported by substantial evidence or that the proper legal standards
were not applied. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). The
court “may not decide the facts anew, reweigh the evidence, or substitute its
judgment for that of the Commissioner,” but rather “must defer to the
Commissioner’s decision if it is supported by substantial evidence.” Miles v. Chater,
84 F.3d 1397, 1400 (11th Cir. 1997) (citation and internal quotation marks omitted).
“Even if the evidence preponderates against the Secretary’s factual findings, [the
court] must affirm if the decision reached is supported by substantial evidence.”
In general, the legal standards applied are the same whether a claimant seeks disability insurance
benefits (“DIB”) or Supplemental Security Income (“SSI”). However, separate parallel statutes
and regulations exist for DIB and SSI claims. Therefore, citations in this opinion should be
considered to reference the appropriate parallel provision as context dictates. The same applies to
citations for statutes or regulations found in excerpted court decisions.
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Moreover, reversal is not
warranted even if the court itself would have reached a result contrary to that of the
factfinder. See Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).
The substantial evidence standard is met “if a reasonable person would accept
the evidence in the record as adequate to support the challenged conclusion.”
Holladay v. Bowen, 848 F.2d 1206, 1208 (11th Cir. 1988) (quoting Boyd v. Heckler,
704 F.2d 1207, 1209 (11th Cir. 1983)). The requisite evidentiary showing has been
described as “more than a scintilla, but less than a preponderance.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The court must scrutinize the entire
record to determine the reasonableness of the decision reached and cannot “act as
[an] automaton in reviewing the [Commissioner’s] decision.” Hale v. Bowen, 831
F.2d 1007, 1010 (11th Cir. 1987). Thus, the court must consider evidence both
favorable and unfavorable to the Commissioner’s decision. Swindle v. Sullivan, 914
F.2d 222, 225 (11th Cir. 1990).
The court will reverse the Commissioner’s decision on plenary review if the
decision applies incorrect law or fails to provide the court with sufficient reasoning
to determine that the Commissioner properly applied the law. Grant v. Astrue, 255
F. App’x 374, 375–76 (11th Cir. 2007) (citing Keeton v. Dep’t of Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)). There is no presumption that the
Commissioner’s conclusions of law are valid. Id.
II. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. §§ 423(d)(1)(A) & 416(i). A physical or mental impairment is “an
impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrated by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). Bowling bears the burden
of proving that he is disabled and must produce evidence sufficient to support his
claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
A determination of disability under the Social Security Act requires a fivestep analysis. 20 C.F.R. § 404.1520(a). The Commissioner must determine in
(1) Is the claimant presently unable to engage in substantial gainful activity?
(2) Are the claimant’s impairments severe?
(3) Do the claimant’s impairments satisfy or medically equal one of the
specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P,
(4) Is the claimant unable to perform her former occupation?
(5) Is the claimant unable to perform other work given her residual functional
capacity, age, education, and work experience?
See Frame v. Comm’r, Soc. Sec. Admin., 596 F. App’x 908, 910 (11th Cir. 2015).
“An affirmative answer to any of the above questions leads either to the next
question, or, [at] steps three and five, to a finding of disability. A negative answer
to any question, other than at step three, leads to a determination of ‘not disabled.’”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986) (quoting 20 C.F.R.
§ 416.920(a)−(f)). “Once the finding is made that a claimant cannot return to prior
work the burden of proof shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citing Gibson v. Heckler,
762 F.2d 1516 (11th Cir. 1985)).
Applying the sequential evaluation process, the ALJ found Bowling had not
engaged in substantial gainful activity since his alleged onset date of October 16,
2016. R. 12. At step two, the ALJ found Bowling suffered from the following severe
impairments: post-concussion syndrome, migraines, degenerative disc disease of the
cervical spine, degenerative joint disease of the right shoulder and right knee,
obesity, posttraumatic stress disorder (“PTSD”), and generalized anxiety disorder
(“GAD”). R. 12.
At step three, the ALJ found Bowling did not have an impairment or
combination of impairments meeting or medically equaling the severity of any of
the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 13. Before
proceeding to step four, the ALJ determined Bowling had the Residual Functional
Capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b),
except he can never climb ladders, ropes, or scaffolds; he can frequently
balance and climb ramps and stairs; he can occasionally stoop, kneel,
crouch, and crawl; he must avoid concentrated exposure to unprotected
heights or moving machinery; he can understand, remember, and carry
out simple tasks; he can maintain concentration, persistence, or pace for
those tasks in 2-hour periods with customary breaks spread throughout
the workday; he can occasionally interact with supervisors, coworkers,
and the public but will work better with things rather than people; and
he can adapt to occasional changes in the workplace.
R. 14. In reaching this opinion, the ALJ stated that he considered Bowling’s
symptoms, the objective medical evidence, and other evidence. R. 14.
The ALJ determined Bowling was not able to perform any past relevant work.
R. 19. The ALJ relied on the evidence of a Vocational Expert (“VE”) to find that
“[c]onsidering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform.” R. 19. Thus, at step five of the five-step
sequential process, the ALJ found Bowling not to be disabled since October 16,
2016, the alleged onset date, through July 15, 2019, the date of her decision. R. 20.
III. RELEVANT FACTUAL BACKGROUND
Bowling graduated from high school in 1999. R. 170. He began working for
the Lawrence County Sheriff’s Office as a Deputy in 1999. R. 37 & 170. His career
ended when he suffered a head injury during a physical altercation at work on
October 16, 2016. R. 170, 208 & 231. Bowling testified that he has rarely driven a
car since his injury. R. 36. He suffers from post-concussion syndrome and PTSD.
R. 39. His post-concussion syndrome causes him to fall a couple times a month.
R. 39. He also has ten to twelve migraines per month, each lasting two to three
hours. R. 40. When he has a migraine, Bowling has to sit in a dark room, alone,
without being exposed to television or sound. R. 40.
Bowling testified that he also experiences pain from a bulging disc in his neck,
a shoulder surgery, and his knee. R. 41. He claims that the injuries to his shoulder
and knee relate to the attack on October 16, 2016. R. 42. He rates his pain overall
as a six out of ten. R. 44. When he is taking over-the-counter medication, his pain
is at a four or five out of ten. R. 44.
During a typical day, Bowling wakes up at 6:00 to help his children get ready
for school and see them off to the school bus. R. 44. He sits in his chair until the
children come home and then goes outside so that the bus driver can see that a parent
is home and let the children off the bus. R. 45. Bowling has to wear sunglasses and
sit in the shade when he is outside. R. 45. At the hearing, he testified that he does
not do any household chores. R. 45. Katherine Bowling, his wife, also testified at
the hearing. R. 48. She said that Bowling had been a bright, active person before his
injury. R. 49. Afterwards, he has been angry, sick, and in pain. R. 49. She testified
that she takes care of all of the household chores while Bowling spends his days in
his recliner. R. 49–50.
Bowling testified that he goes to the gym but only to walk, and he often gets
dizzy even doing that. R. 52. He said he visits his wife’s grandmother twice per
week to sit in a recliner near her. R. 53. Bowling also testified that Ms. Lawson, his
therapist, incorrectly recorded that he picks up his children from school and
practices. R. 53–56. Bowling indicated that he is able to pay bills and count change
but cannot handle a saving account or use a checkbook, noting that it is “hard to
write, understand, frustrating.” R. 227.
Bowling’s Medical Records
On November 10, 2016, Dr. Stephen Howell saw Bowling and diagnosed him
with a concussion and noted his significant dizziness, headache, and retrograde
amnesia. R. 311 & 313. Dr. Howell also noted his knee and shoulder pain. R. 313.
Dr. Howell observed that it would take months for Bowling to recover from the
assault. R. 314. On December 17, 2016, Dr. Howell learned from Bowling and his
wife that Bowling has significant memory deficits. R. 309.
On November 21, 2016, Dr. Chad McElroy saw Bowling and noted that he
was experiencing dizziness, headaches, memory loss, and psychomotor slowing.
R. 570–72. Bowling presented with similar symptoms to Dr. McElroy on February
20 and October 4, 2017. R. 578–85. After Bowling’s shoulder surgery on April 4,
2017, he reported that his shoulder and knee pain had “tremendously improved” in
a visit with Dr. McElroy on July 31, 2017. R. 733. Dr. McElroy’s physical exam
confirmed that Bowling had an excellent range of motion in his shoulder with “no
apparent discomfort.” R. 733. Bowling saw Dr. McElroy again on January 29, 2018,
when Bowling reported some pain in his right knee and heel. R. 732. Bowling had
no swelling in his right knee and had satisfactory range of motion and no tenderness.
On February 23, 2017, Dr. Stephen Howell noted that Bowling was alert but
had definite concentration issues. R. 303. On the same day, Stephen Boll, Ph.D.,
performed a psychological evaluation on Bowling. R. 318. Based on the intellectual
and background evaluation, Boll concluded that Bowling had always functioned “in
the low average range.” R. 319. Boll also observed that Bowling is “very cognitively
slow” but that his slowness was “really not proportional to what would be expected
in someone who had a legitimate but nevertheless mild traumatic brain injury
although it could represent the lingering residuals of something that occurred just
three months ago and should therefore be subject to continuing improvement.”
R. 320. Boll recommended that Bowling “engage in a number of activities of a work
hardening nature that would be effective in getting him reconditioned and back into
a much more active and appropriate regime.” R. 320.
On March 8, 2017, Dr. Kyle Hudgens examined Bowling. R. 778. Dr.
Hudgens noted that Bowling experienced depression but no mood swings, suicidal
thoughts, nervousness or anxiety; no panicky feelings; and no unusual experiences.
R. 779. Bowling reported no muscle weakness or joint pain. R. 779. Dr. Hudgens
noted that he was alert with normal mental status and that he could move his
extremities well and had normal station and gait. R. 779. On April 12, 2017, Dr.
Hudgens saw Bowling again and observed that he was trying to walk but had
undergone right shoulder surgery, and mentioned that he “has a brighter look about
him and is more interactive.” R. 781. On June 14, 2017, Dr. Hudgens noted that
Bowling was not functioning as well after his shoulder surgery. R. 783. Dr. Hudgens
told Bowling to taper off his caffeine intake and begin a walking program. R. 783.
On July 26, 2017, Bowling reported that he was not walking for exercise and had
not cut down on his caffeine. R. 785.
On August 24, 2017, Dr. Hudgens treated Bowling for “follow-up
postconcussion syndrome.” R. 787. Dr. Hudgens noted that he had previously
signed papers indicating that Bowling could perform light duty under the assumption
that light duty “would be a desk job handling reports.” R. 787. Dr. Hudgens was not
comfortable with Bowling performing light duty responsibilities when he learned
that they include “handling complaints as they arise in the front office, handling
reports, [and] serving warrants as needed.” R. 787. He also noted that he would try
to obtain a psychiatry consultation for Bowling. R. 787.
On November 1, 2017, Dr. Hudgens noted that Bowling had weaned himself
from caffeine but had not been able to see a psychiatrist. R. 789. On June 28, 2018,
Bowling told Dr. Hudgens that he was no longer exercising and was having
headaches three days per week. R. 791. Dr. Hudgens directed him to a website that
demonstrates exercise routines. R. 791. On August 21, 2018, Bowling reported that
he was doing better with respect to his headaches and depression and also was
becoming more active. R. 793. Dr. Hudgens noted that he was “brighter and
spontaneously interactive.” R. 793. On December 5, 2018, Bowling reported to Dr.
Hudgens that he was having migraines almost daily, so Dr. Hudgens prescribed
Botox. R. 825. Dr. Drew Uhrig performed the Botox injections on January 9 and
April 3, 2019. R. 826–31. On April 22, 2019, Dr. Hudgens signed a note indicating
that Bowling’s work limitations were “No work––No Light duty.” R. 832.
On August 28, 2018, Dr. Stuart Tieszen examined Bowling. R. 797. He
documented Bowling’s diagnoses of PTSD, postconcussion syndrome with
recurrent headaches, secondary major depression, GAD, panic disorder, and trauma
to shoulder and knee. R. 797. Bowling denied any adverse side effects from his
medication and reported that his appetite and sleep were improving even if his sleep
continued to be disrupted. R. 797. Dr. Tieszen documented Bowling’s and his wife’s
reports that Bowling gets up at 6:00 a.m. on an average day, dresses himself, and
helps his wife in getting the kids to school. R. 798. They reported that he spends the
day at home unless his kids have ballgames or programs. R. 798. He reported
continued physical symptoms of PTSD such as nausea, vomiting, and diarrhea when
he leaves the house. R. 798. Mrs. Bowling reported that Bowling’s emotions were
erratic. R. 798. Dr. Tieszen observed that Bowling was cooperative, well-groomed,
but “somewhat distant and disengaged.” R. 798. He had coherent speech but
“somewhat paucity of thought or communication.” R. 798. Dr. Tieszen noted that
Bowling’s thought process and content were logical, organized, and goal-directed
overall, “but he is distracted.” R. 798. “Cognitively, he is alert and oriented.
Memory is intact. Concentration is fair to poor. Insight and judgment are fair.
Language is intact.” R. 798–99.
Dr. Tieszen saw Bowling again on October 26, 2018. R. 816. On examination,
Bowling presented similarly, but Dr. Tieszen noted that his concentration was fair
and his insight and judgment were fair to good. R. 817. Dr. Tieszen also noted that
Bowling did not seem to be progressing. R. 817. Bowling complained of dizzy
spells. R. 817. On January 4, 2019, Dr. Tieszen again made similar observations but
noted that “[t]he patient cognitively continues to have difficulty. He has light
headaches and is in bed a lot and is taking many naps.” R. 820. Bowling also
reported that he no longer travels for his children’s sports or activities and that he
was under significant stress at work. R. 820. On March 1, 2019, Dr. Tieszen
observed that Bowling was “obviously lighter and less depressed [and] much
calmer.” R. 822. His job stress had decreased. R. 822. Otherwise, his findings on
examination continued to be similar. R. 822.
On May 8, 2019, Dr. Tieszen
completed a form indicating that Bowling had marked restrictions in activities of
daily living, moderate difficulty in maintaining social functioning, and marked
limitations in a number of work-related skills. R. 856–58.
On November 11, 2018, Bowling saw Heather Lawson, a licensed counselor,
who noted that he is engaged in activities of daily living including “self
care/grooming/showering daily, helping around the house with cleaning, helped kids
with cleaning/organizing their bedrooms.” R. 837. On December 3, 2018, Lawson
noted that she discussed the possibility of future employment with Bowling and that
he was open to the idea. R. 839. On December 11, 2018, Lawson noted that
Bowling’s depression and anxiety had decreased. R. 841. On January 15, 2019,
Lawson worked with Bowling to create a plan for weekly exercise. R. 843. On
February 5, 2019, Bowling reported to Lawson that he had been active in helping to
care for his and his wife’s grandparents, including cleaning and doing laundry.
R. 845. At night, he reported that uses his phone to play puzzle games. R. 845. On
February 28, 2019, Bowling appeared to be doing well and reported to Lawson that
he was taking primary caregiving responsibilities for his children and his in-laws
because his wife was returning to work. R. 847.
On September 28, 2018, Dr. Robert Estock reviewed Bowling’s medical
record and observed that he had recent exam findings indicating that his gait was
normal, that he had no tics, tremors, or abnormal movements, and that he had a
satisfactory range of motion and no tenderness in his right knee. R. 68. He found
that Bowling had only moderate restrictions with respect to the “B” criteria of
Listings 12.04 and 12.06. R. 69. Dr. Estock concluded that Bowling is highly
functional based on the reported activities of daily living, despite his complaints of
pain and psychiatric symptoms. R. 68. Dr. Gloria Sellman also reviewed Bowling’s
records on the same day and provided a residual functional capacity assessment that
indicated he could perform light work with some additional limitations. R. 71–72.
Bowling raises three arguments for reversing the ALJ’s decision: (1) the
ALJ’s consideration of the medical opinions was not supported by substantial
evidence; (2) the ALJ did not properly credit Bowling’s testimony as to the severity
of his symptoms; and (3) Bowling meets Listings 12.04, 12.06, and 12.15. Doc. 15
at 43–66. The court addresses each of these arguments in turn.
Bowling argues that the ALJ should have given more weight to the opinions
of Dr. Hudgens and Dr. Tieszen and less weight to the opinions of Dr. Sellman and
Dr. Estock. For claims filed after March 27, 2017, the ALJ “will not defer or give
any specific evidentiary weight, including controlling weight, to any medical
opinion(s).” 20 C.F.R. § 404.1520c(a). Instead, the ALJ will consider several factors
when weighing medical opinions:
(1) Supportability. The more relevant the objective medical evidence
and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical
finding(s), the more persuasive the medical opinions or prior
administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other
medical sources and nonmedical sources in the claim, the more
persuasive the medical opinion(s) or prior administrative medical
finding(s) will be.
(3) Relationship with the claimant. This factor combines consideration
of the issues in paragraphs (c)(3)(i) through (v) of this section.
(i) Length of the treatment relationship. The length of time a medical
source has treated you may help demonstrate whether the medical
source has a longitudinal understanding of your impairment(s).
(ii) Frequency of examinations. The frequency of your visits with the
medical source may help demonstrate whether the medical source has
a longitudinal understanding of your impairment(s).
(iii) Purpose of the treatment relationship. The purpose for treatment
you received from the medical source may help demonstrate the level
of knowledge the medical source has of your impairment(s).
(iv) Extent of the treatment relationship. The kinds and extent of
examinations and testing the medical source has performed or ordered
from specialists or independent laboratories may help demonstrate the
level of knowledge the medical source has of your impairment(s).
(v) Examining relationship. A medical source may have a better
understanding of your impairment(s) if he or she examines you than if
the medical source only reviews evidence in your folder.
(4) Specialization. The medical opinion or prior administrative medical
finding of a medical source who has received advanced education and
training to become a specialist may be more persuasive about medical
issues related to his or her area of specialty than the medical opinion or
prior administrative medical finding of a medical source who is not a
specialist in the relevant area of specialty.
(5) Other factors. We will consider other factors that tend to support or
contradict a medical opinion or prior administrative medical finding.
This includes, but is not limited to, evidence showing a medical source
has familiarity with the other evidence in the claim or an understanding
of our disability program's policies and evidentiary requirements. When
we consider a medical source's familiarity with the other evidence in a
claim, we will also consider whether new evidence we receive after the
medical source made his or her medical opinion or prior administrative
medical finding makes the medical opinion or prior administrative
medical finding more or less persuasive.
20 C.F.R. § 404.1520c(c). Of these factors, supportability and consistency are the
most important. 20 C.F.R. § 404.1520c(a).
Bowling argues that the opinions of Dr. Hudgens and Dr. Tieszen are
supportable and consistent with the entire record. Doc. 15 at 43. But substantial
evidence supports the ALJ’s finding that their opinions are not persuasive. The ALJ
found that Dr. Hudgens’ opinion was not persuasive because it is “conclusory on the
issue of disability and is not supported by the claimant’s treatment history.” R. 18.
Because Dr. Hudgens provided no explanation for his conclusion that Bowling
should not work, his opinion lacks supportability. See 20 C.F.R. § 404.1520c(c)(1).
And Dr. Hudgens’ opinion is inconsistent with his own treatment records. In 2017,
Dr. Hudgens indicated that he believed Bowling could perform “a desk job handling
reports.” R. 787. Dr. Hudgens also repeatedly urged Bowling to begin and maintain
an exercise regime. R. 783 & 791. Finally, the regulations indicate that “[s]tatements
that you are or are not disabled, blind, able to work, or able to perform regular or
continuing work” are “inherently neither valuable nor persuasive to the issue of
whether you are disabled.” 20 C.F.R. § 404.1520b(c). Dr. Hudgens’ conclusion was
just such a statement. Therefore, the court finds that there is substantial evidence
supporting the ALJ’s finding that Dr. Hudgens’ opinion is not persuasive.
The ALJ also found that Dr. Tieszen’s opinion was not persuasive because
(1) it was not supported by Bowling’s treatment history, (2) the form Dr. Tieszen
completed did not use appropriate vocational terms or criteria for assessing mental
limitations, and (3) the limitations Dr. Tieszen indicated are inconsistent with
Bowling’s own reported activities. R. 18–19. Many of the boxes that Dr. Tieszen
checked on the form indicate that Bowling has significant limitations in his ability
to perform work-related activities (R. 856–58) and thus may run afoul of the
regulations discussed above. See 20 C.F.R. § 404.1520b(c). Furthermore, there is
substantial evidence supporting the ALJ’s conclusion that Dr. Tieszen’s opinions are
inconsistent with the evidence. Bowling and his wife reported to Dr. Tieszen that
Bowling performed daily activities like helping to prepare his children for school
and attending their ballgames or programs, although he later stopped doing these
activities. R. 798 & 820. And Bowling’s symptoms have improved over time.
R. 822. Additionally, Bowling reported daily activities to his counselor, Heather
Lawson, that included cleaning, self-care, laundry, caring for his children and inlaws. R. 837 & 845–47. Lawson urged Bowling to exercise and even discussed the
possibility of future employment with Bowling in December 2018. R. 841. Thus,
there is substantial evidence supporting the ALJ’s finding that Dr. Tieszen’s
opinions regarding Bowling’s abilities are unpersuasive.
Bowling also argues that the opinions of Dr. Sellman and Dr. Estock lack
support and consistency with the entire record such that the ALJ should have given
their opinions less credence because they are not treating physicians and only
reviewed the record. Doc. 15 at 49. However, for claims filed after March 27, 2017,
the ALJ is no longer required to give special deference to the opinion of a treating
physician over and above that of a physician who merely reviews the record. See 20
C.F.R. § 404.1520c(a). Bowling also argues that the opinions of Dr. Sellman and
Dr. Estock are unpersuasive because they do not consider evidence submitted after
September 28, 2018, such as the information from Lawson, Dr. Hudgens, and Dr.
Tieszen. Doc. 15 at 49–50. However, as discussed above, there is substantial
evidence supporting the ALJ’s decision to find the opinions of Dr. Hudgens and Dr.
Tieszen unpersuasive. And, as also discussed above, the evidence from Lawson
supports the opinions of Dr. Sellman and Dr. Estock that Bowling is capable of light
work. For these reasons, the court finds that there is substantial evidence supporting
the ALJ’s conclusion that the opinions of Dr. Sellman and Dr. Estock are persuasive.
The Social Security Regulations provide that a claimant’s subjective
complaints of pain alone cannot establish disability. Rather, the regulations describe
additional objective evidence that permits a finding of disability. See 42 U.S.C.
§ 423(d)(5)(A); 20 C.F.R. § 404.1529. Interpreting these regulations, the Eleventh
Circuit has articulated a “pain standard” that applies when a claimant attempts to
establish disability through her own testimony of pain or other subjective symptoms.
When establishing disability in this manner, a claimant must satisfy two parts of the
Eleventh Circuit’s three-part pain standard: “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of
the alleged pain; or (b) that the objectively determined medical condition can
reasonably be expected to give rise to the claimed pain.” Wilson v. Barnhart, 284
F.3d 1219, 1225 (11th Cir. 2002).
“[I]f a claimant testifies to disabling pain and satisfies the three part pain
standard, the ALJ must find a disability unless the ALJ properly discredits the
claimant’s testimony.” Crow v. Colvin, 36 F. Supp. 3d 1255, 1259 (N.D. Ala. 2014).
A claimant’s testimony that is supported by medical evidence and satisfies the pain
standard “is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921
F.2d 1221, 1223 (11th Cir. 1991). But an ALJ is free to determine that a claimant’s
testimony is not credible. See Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir.
2005); Crow, 36 F. Supp. 3d at 1259. Thus, after the pain standard is satisfied, the
“ALJ must make credibility determinations regarding a claimant’s claims of pain”
to determine whether the claimant truly is disabled. Fries v. Comm’r of Soc. Sec.
Admin., 196 F. App’x 827, 833 (11th Cir. 2006); Crow, 36 F. Supp. 3d at 1259.
When determining the credibility of a claimant’s testimony about her
symptoms, the ALJ must follow a two-step process: “(1) first determine if the
claimant has a medically determinable impairment that could reasonably be expected
to produce the symptoms alleged; and, if so (2) evaluate the intensity and persistence
of the claimant’s symptoms such as pain and determine the extent to which the
claimant’s symptoms limit his or her ability to perform work-related activities.”
Cooley v. Comm’r of Soc. Sec., 2019 WL 211437, at *2 (M.D. Fla. Jan. 16, 2019).
“In considering the intensity, persistence, and limiting effects of the claimant’s
symptoms, the ALJ is to examine the entire case record, including the objective
medical evidence; an individual’s statements about the intensity, persistence, and
limiting effects of symptoms; statements and other information provided by medical
sources and other persons; and any other relevant evidence in the individual’s case
record.” Id. at *3 (internal citation and quotation omitted). “If the ALJ discredits
subjective testimony, he must articulate explicit and adequate reasons for doing so.”
Wilson, 284 F.2d at 1255. “The ALJ is not required explicitly to conduct a symptom
analysis, but the reasons for his or her findings must be clear enough that they are
obvious to a reviewing court.” Carrell v. Berryhill, 2019 WL 1696698, at *4 (N.D.
Ala. Apr. 17, 2019). Otherwise, the testimony will be accepted as true. Id. The pain
standard requires substantial evidence supporting the articulated reasons. Hale, 831
F.2d at 1012 (“Implicit in this rule is the requirement that such articulation of reasons
by the Secretary be supported by substantial evidence.”). In any event, the “question
is not . . . whether [the] ALJ could have reasonably credited [the claimant’s]
testimony, but whether the ALJ was clearly wrong to discredit it.” Werner v. Comm’r
of Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011).
The ALJ found that Bowling’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms.” R. 15. However, the ALJ
also concluded that Bowling’s “statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record.” R. 15. Bowling argues that the ALJ’s
conclusion is contrary to the medical evidence and his own testimony. Doc. 15 at
There is substantial evidence, however, supporting the ALJ’s conclusion.
Bowling testified that he experiences debilitating symptoms related to his postconcussion syndrome, PTSD, and neck and shoulder pain. R. 37–45. But his
description of his symptoms does not align with all of the medical evidence.
Specifically, Lawson recorded that Bowling was engaging in activities of daily
living including grooming, cleaning the house, helping his children clean and
organize their bedrooms, and cleaning and doing laundry for his wife’s grandparents.
R. 837 & 845. During his follow-up visits with Dr. McElroy, Bowling was observed
to have no knee pain in 2017 and some pain in 2018 but with a satisfactory range of
motion and no tenderness. R. 732–33. For these reasons, the court finds that there
is substantial evidence supporting the ALJ’s finding that Bowling’s testimony
regarding the severity of his pain is not entirely consistent with the objective medical
Finally, Bowling argues that the evidence supports a finding that he meets the
requirements of Listings 12.04, 12.06, and 12.15. Doc. 15 at 57. An individual
qualifies as disabled if he meets the criteria in one of the listings of 20 C.F.R. Part
404, Subpart P, appendix 1. See 20 C.F.R. § 404.1525. The ALJ found that Bowling
did not meet any of the listings primarily because he could not satisfy the “paragraph
B” criteria. R. 13–14. For all three listings, the “paragraph B” criteria are the same:
Extreme limitation of one, or marked limitation of two, of the following
areas of mental functioning (see 12.00F):
Understand, remember, or apply information (see 12.00E1).
Interact with others (see 12.00E2).
Concentrate, persist, or maintain pace (see 12.00E3).
Adapt or manage oneself (see 12.00E4).
20 C.F.R. Part 404, Subpart PP, Appendix 1. An extreme limitation means “[y]ou
are not able to function in this area independently, appropriately, effectively, and on
a sustained basis.” 12.00(F)(2)(e). A marked limitation means “[y]our functioning
in this area independently, appropriately, effectively, and on a sustained basis is
seriously limited.” 12.00(F)(2)(d).
The ALJ found that Bowling had only a moderate limitation in his ability to
understand, remember, or apply information. R. 13. Bowling reported that he is able
to pay bills and count change. R. 227. The ALJ also observed that Bowling was able
to answer questions during the hearing without significant difficulty. R. 13. The
ALJ found that Bowling had only a moderate limitation in interacting with others.
R. 13. The evidence shows that Bowling lives with his children and wife and has
been a caregiver for his wife’s grandparents. R. 798, 837 & 845. However, the
record also indicates that Bowling has mood swings and often has angry outbursts
with his family. R. 49. Bowling does attend his daughter’s sporting events. R. 228.
Bowling reported that he gets along well with authority figures. R. 230.
The ALJ next found that Bowling had only a moderate limitation in his ability
to concentrate, persist, or maintain pace. R. 13. Again, Bowling reported that he can
pay bills, use a cellphone, and play puzzle games. R. 227 & 845. He also reported
picking up his children from school and practices. R. 849. Finally, the ALJ found
that Bowling had only a moderate limitation in adapting or managing himself. R. 13.
He reported that he grooms himself, performs household tasks, helps the children
get ready for school, and cared for his wife’s grandparents when they were in hospice
care. R. 837 & 845. Bowling also cares for his dog. R. 227. For these reasons, there
is substantial evidence in support of the ALJ’s finding that Bowling has only
moderate limitations in these areas and therefore does not meet the “paragraph B”
criteria in Listings 12.04, 12.06, or 12.15.
For these reasons, the Commissioner’s decision is supported by substantial
evidence and based upon the proper legal standards. Accordingly, the decision of
the Commissioner is due to be affirmed. A final judgment will be entered separately.
DONE and ORDERED on July 16, 2021.
GRAY M. BORDEN
UNITED STATES MAGISTRATE JUDGE
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