Cooper v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate Judge Harwell G Davis, III on 10/16/14. (SPT )

FILED
2014 Oct-16 PM 02:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
JANET COOPER,
Plaintiff
vs.
CAROLYN COLVIN,
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant

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) Case No. 6:13-cv-00998-HGD
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MEMORANDUM OPINION
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), plaintiff seeks judicial
review of an adverse social security ruling which denied claims for disability
insurance benefits (hereinafter DIB). (Doc.1). The parties filed written consent and
this action has been assigned to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c)
and Fed.R.Civ.P. 73. (See Doc. 13). Upon consideration of the administrative record
and the memoranda of the parties, the court finds that the decision of the
Commissioner is due to be affirmed and this action dismissed.

I.

Proceedings Below
Plaintiff in this action, Janet Stickels Cooper, protectively filed for a period of

disability and DIB on February 16, 2010, alleging that she became disabled on
June 18, 2009. (Tr. 9, 119-25). Her application was denied administratively and
plaintiff requested a hearing before an Administrative Law Judge (ALJ). The hearing
was held before the ALJ on January 4, 2012, who denied plaintiff’s claim. In a
decision dated April 6, 2012, the ALJ found that plaintiff was not disabled. (Tr. 918). Plaintiff requested review by the Appeals Council, which was denied on April 8,
2013. (Tr.1-3). The Commissioner’s decision is ripe for review under 42 U.S.C.
§§ 405(g) and 1383(c)(3).
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 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. § 404.1520(b). Second, the ALJ must determine whether the claimant has
a medically determinable impairment or a combination of medical impairments that
significantly limits the 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.
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Id. Third, the ALJ must determine whether the claimant’s impairment meets or
medically equals the criteria 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 first must 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 that the
claimant is 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 the RFC, age, education and work experience.
§§ 404.1520(g) and 404.1560(c).
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20 C.F.R.

The ALJ followed this protocol, finding, at the second step, that plaintiff has
the following severe impairments: uncontrolled diabetes mellitus, type II; obesity;
right shoulder degenerative joint disease; and major depressive disorder. (Tr. 12).
The ALJ then found that plaintiff’s impairment or combination of impairments do not
meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part
404, Subp. P, Appx. 1. (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). This
was not contested by plaintiff. (Tr. 13).
At step four, the ALJ found that plaintiff could not perform her past relevant
work. (Tr. 16). However, the ALJ concluded that plaintiff had a RFC limited to a
light range of work; that is, she is limited to (1) lifting/carrying less than ten pounds
occasionally and frequently; (2) infrequent postural maneuvers such as balancing,
stooping, kneeling, and climbing ramps and stairs; (3) occupations that do not require
climbing ropes, ladders, or scaffolds; (4) occasionally crouching and crawling;
(5) avoid overhead reaching with the right upper extremity; (6) avoid concentrated
heat or cold temperature extremes; (7) avoid unprotected heights; (8) simple
instructions with no detailed instructions; and (9) concentrating and remaining on
task for two hours at a time, sufficient to complete an eight-hour day. (Tr. 13).
Based on the RFC and vocational profile of plaintiff, the ALJ elicited
testimony from a vocational expert (VE) who testified that, given these restrictions,
plaintiff can perform light jobs, such as electrical assembler, poultry trimmer, and
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inspector/hand packager, that exist in significant numbers in the national economy.
After considering the VE’s testimony, the ALJ found plaintiff was not disabled under
the Act during the relevant period from June 18, 2009, to April 6, 2012. (Tr. 18).
III.

Issues Presented
On appeal, plaintiff alleges that (1) the ALJ failed to properly evaluate the

credibility of the plaintiff’s complaints of pain consistent with the Eleventh Circuit’s
Pain Standard, and (2) substantial evidence does not support the ALJ’s RFC
determination. (See Doc. 11, Plaintiff’s Brief, at 1-13).
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. Brown,
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, re-evaluate 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)).
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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.
V.

Discussion
Plaintiff bears the ultimate burden of proving disability. See 42 U.S.C.

§ 423(d)(1)(A), (5); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Plaintiff alleges that the ALJ
improperly disregarded medical testimony and plaintiff’s own testimony regarding
the limiting effects of her symptoms solely because there were occasions where the
“claimant has intermittently reported periods of ‘feeling better.’” (Tr. 14). According
to plaintiff, the ALJ failed to properly assess her longitudinal medical history which
documented complaints and treatment for her uncontrolled diabetes.
In particular, plaintiff cites numerous records from the Endocrine and
Metabolic Disorders Institute, where she was treated for her diabetes, which reflect
many complaints of uncontrolled blood sugar and associated symptoms including
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headaches, weakness, fatigue and neuropathy in both of her lower extremities. (Doc.
11, Plaintiff’s Brief, at 7-9).
The ALJ did, in fact, state that she found that plaintiff suffered from
uncontrolled blood sugar. However, in addition, she noted that plaintiff had not
consistently taken her diabetes medication as directed (Tr. 14, 237, 827, 950); failed
to comply with her physician’s recommendations regarding diet and exercise (Tr. 14,
767, 781, 792, 827, 948, 952); that she had intermittently reported periods of “feeling
better” (Tr. 14, 241, 946, 952, 967); and her longtime treating physician, Dr. Romero,
often did not find any abnormalities upon physical exam (Tr. 14, 817, 819-20, 82425, 829-30, 839, 848-49, 853-54, 934, 940). Thus, the ALJ did not fully credit
plaintiff’s testimony regarding the effects of her diabetes simply because there were
occasions when she was feeling better. She did so based on other evidence, as well.
The ALJ found that plaintiff’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms. However, she further found that the
claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms were not fully credible. (Tr. 13-14). Based on plaintiff’s history of
uncontrolled diabetes, the ALJ included exertional, postural and environmental
limitations in the plaintiff’s RFC. All of this is supported my medical records and
other evidence submitted to the ALJ.

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Plaintiff further complains that the ALJ failed to properly credit plaintiff’s
testimony regarding her debilitating symptoms from her mental impairments,
seemingly rejecting it because plaintiff did not seek mental health treatment after her
alleged onset date until May 2011. (Doc. 11, Plaintiff’s Brief, at 10; Tr. 15). Plaintiff
notes that in May 2011 she was diagnosed with Major Depressive Disorder, Severe
without psychotic features and her Global Assessment of Functioning (GAF) was
placed at 38-40. (Tr. 884, 885). Plaintiff further notes that, on one occasion prior to
May 2011, in November 2010, she reported that she had been very depressed and sick
for the past month with uncontrolled blood sugar. (Tr. 786).
However, although she complained about this problem, plaintiff did not seek
any treatment for her mental health in November 2010. Merely being diagnosed with
this condition does not establish that her mental impairments interfered with her
ability to perform basic work activities. See Wind v. Barnhard, 133 Fed. App’x 684,
690 (11th Cir. 2005) (unpublished) (citing McCruter v. Bowen, 791 F.2d 1544, 1547
(11th Cir. 1986) (“[A] diagnosis or a mere showing of ‘a deviation from purely
medical standards of bodily perfection or normality’ is insufficient; instead, the
claimant must show the effect of the impairment on her ability to work.”)).
In addition, the ALJ addressed plaintiff’s low GAF score and noted that it
remained 38 upon discharge from the program in November 2011, despite treatment
records documenting plaintiff’s steady improvement. (Tr. 15, 891-93, 996-98).
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Furthermore, the Commissioner has noted that the GAF scale “does not have a direct
correlation to the severity requirements in [SSA’s] mental disorder listings.” 65 Fed.
Reg. 50746 at 50764-65; Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir.
2002) (GAF score may assist ALJ in formulating a claimant’s RFC, but is not
essential). Similarly, the Ninth Circuit has found that a claimant with a GAF score
of 40 was not disabled. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005)
(claimant with a GAF score of 40 was not disabled); Morgan v. Comm’r of Soc. Sec.,
169 F.3d 595, 600 (9th Cir. 1999) (claimant with GAF scores ranging from 45 to 61
was not disabled).
The ALJ also noted that plaintiff participated in several group sessions on
money management, stress management and social skills. (Tr. 15, Exs. 33F and 44F).
She further noted that plaintiff was discharged from this therapy in November 2011,
based on a recommendation for treatment in an alternate setting for “minimal acute
needs.” (Tr. 15, Ex. 44F).
The records presented to the ALJ also reflected that plaintiff sought psychiatric
treatment at Winfield Behavioral Health Center where, in October 2010, she was
diagnosed by a psychiatrist with recurrent, severe, major depressive disorder with
psychotic features, generalized anxiety disorder, rule out bipolar disorder, and a GAF
score of 55. (Tr. 15, Ex. 35F). However, her treating psychiatrist also observed that
plaintiff’s capability for activities of daily living was average and that she had an
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apathetic mood with congruent affect, cooperative behavior, and logical thinking. He
further found that she had fair judgment, limited insight, and good concentration.
Plaintiff was prescribed Celexa and Klonopin. Within a month, she reported
improvement with the medication. The treating psychiatrist increased her dosage of
these medicines and again noted that her GAF score was 55. (Id.).
The ALJ also observed that plaintiff’s activities of daily living are inconsistent
with her allegations of disability, noting that plaintiff reported caring for most of her
personal needs, taking care of a cat, preparing meals, cleaning, including loading the
dishwasher daily and occasionally sweeping and vacuuming, doing laundry, watching
television, reading books, using the computer to email and pay bills, attending church
multiple times a week and visiting with family members. In addition, the ALJ stated
that the records shows that plaintiff has been able, at least at times, to mow the lawn
with a riding lawn mower. Based on this, the ALJ found these activities to be
inconsistent with plaintiff’s contentions of severe pain and dysfunction and
diminished the credibility of her allegations of disability. (Tr. 16).
Plaintiff also complains that the ALJ failed to give significant weight to the
opinion of Ms. Tami Green, CRNP, CDE, who had helped plaintiff regarding her
treatment at Winfield Family & Occupational Medicine since March 14, 2011. Ms.
Green opined, in a letter dated December 27, 2011, that plaintiff was “unable to work
any type of job” due to her diabetes, severe depression and other problems. (Tr. 992).
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In assessing the claimant’s RFC, the ALJ must state with particularity the
weight given to different medical opinions and the reasons therefor. Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987). The ALJ also must consider any findings
of a state agency medical or psychological consultant, who is considered an expert,
and must assign weight and give explanations for assigning weight the same way as
with any other medical source. See 20 C.F.R. §§ 404.1527(e)(2) and 416.927(e)(2);
SSR 96-6p, 1996 WL 374180 (July 2, 1996)). In determining how much weight to
give a medical opinion, the ALJ considers factors such as the examining or treating
relationship, whether the opinion is well-supported, whether the opinion is consistent
with the record, and the doctor’s specialization. See 20 C.F.R. §§ 404.1527(c) and
416.927(c).
The ALJ gave “little weight” to the opinion of Ms. Green. (Tr. 16). In the
decision, the ALJ gave Ms. Green’s opinion little weight because it was conclusory.
Ms. Green cited no specific functional limitations which caused her to reach this
conclusion. The ALJ also rejected Ms. Green’s conclusion because it was an opinion
on an issue reserved to the Commissioner. (Id.). See SSR 06-3p (opinions from
“other sources” should be evaluated on key issues such as impairment severity and
functional effects, along with other relevant evidence).

See also 20 C.F.R.

§ 404.1527(d) (some opinions, such as RFC or a claimant’s ability to work, are not

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medical opinions, but rather “opinions on issues reserved to the Commissioner
because they are administrative findings that are dispositive of a case”).
In addition, Ms. Green is not an acceptable medical source. See 20 C.F.R.
§ 404.1513(a)(1)-(5) (licensed physicians, psychologists, optometrists, podiatrists,
and qualified speech-language pathologists are acceptable medical sources); 20
C.F.R. § 404.1513(d)(1) (non-acceptable or “other” medical sources include
chiropractors, therapists, physicians’ assistants and nurse practitioners). Ms. Green
is a nurse practitioner. Only an acceptable medical source can establish the existence
of the medically determinable impairment and give medical opinions. These include
opinions regarding the severity of a claimant’s impairments and what the claimant can
or cannot do despite or because of the impairment. 20 C.F.R. § 404.1527(a)(2).
Consequently, the ALJ did not err by giving Ms. Green’s opinion little weight.
Plaintiff also objects to the weight given by the ALJ to the opinions of the state
agency medical and psychological consultants. The psychological consultant, Steven
D. Dobbs, Ph.D., did not find plaintiff’s mental functioning to be markedly limited
in any category. He only found her to be moderately limited in the sense that she is
able to understand and remember simple and detailed instructions, but not complex
instructions. He also found that her ability to complete a normal workweek and
workday without interruption from psychological symptoms to be moderately limited,
but that she was able to sustain attention/concentration for two hour periods,
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sufficient to complete a regular workday at an acceptable pace and attendance
schedule. (Tr. 479-81).
The physical RFC assessment performed by the state agency medical
consultant, Dr. K. M. Cameron, found that plaintiff could frequently lift and/or carry
ten pounds and sit or stand for about six hours in an eight-hour day. Dr. Cameron
found that plaintiff was limited in her upper extremities and was limited in her ability
to reach in all directions. The state agency physician also found that plaintiff should
never have to balance and only occasionally crouch or crawl. Likewise, he found she
should avoid concentrated exposure to extreme heat or cold and avoid all exposure
to hazards, such as hazardous machinery and unprotected heights. (Tr. 502-06). The
physician noted that her diabetes, high blood pressure, and lungs seem to be stable
and controlled by medications. Her back problems are very mildly limited. He also
found that plaintiff’s statements regarding her right shoulder to be only partially
credible in that this shoulder did have some limitations, but the severity alleged was
not consistent with the evidence in the file. (Tr. 507). That evidence includes notes
from a medical examination of plaintiff on July 9, 2010, where she complained of
pain with the movement of her right shoulder, but the examiner noted that it was nontender. The examiner also noted that plaintiff could raise her right shoulder in the
forward direction to 100 degrees and abduct it to 90 degrees. (Tr. 509).

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The report of this state agency physician reflects that he also reviewed other
medical records regarding the treatment of plaintiff’s various medical problems. The
ALJ gave great weight to both of these medical sources noting that they “adequately
considered the claimant’s subjective complaints as well as the combined effects of her
multiple impairments.” (Tr. 16). She did not err in doing so.
Finally, plaintiff also claims that the VE testified that plaintiff has not acquired
skills which transfer to anything lighter than medium and that, accordingly, the
Medical Vocational Guidelines are appropriate. However, this is not the complete
picture. The VE stated that plaintiff’s prior work as a truck driver was a skill that did
not transfer to anything lighter than medium. However, the VE also stated that
plaintiff had worked a job as a DOT title checker, which is a light, unskilled job.
Thus, the ALJ did not err when she found that plaintiff could perform light work with
certain limitations. Furthermore, the Grid Rule cited by plaintiff, 20 C.F.R. Pt. 404,
Subpt. P, App. 2, § 201.14, applies to individuals of “advanced age” whose maximum
sustained work capacity is limited to sedentary work. Plaintiff’s RFC limits her to
light work. This RFC is supported by substantial evidence. Therefore, this Rule is
inapplicable.
VI.

Conclusions
There is substantial evidence that plaintiff could perform light work with the

significant limitations as set out in plaintiff’s RFC. Likewise, there is substantial
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evidence that there are jobs which plaintiff can perform that exist in significant
numbers in the national economy. The ALJ provided detailed and adequate reasons
for her findings. Accordingly, upon review of the administrative record, and
considering all of the plaintiff’s arguments, the Court finds the Commissioner’s
decision is supported by substantial evidence and in accord with the applicable law.
Therefore, that decision is due to be affirmed. A separate order will be entered.
DONE this 16th day of October, 2014.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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