Kelley v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/15/2018. (JLC)

FILED
2018 Feb-15 PM 01:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
JOSHUA SCOTT KELLEY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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) Case No.: 6:16-CV-1799-VEH
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MEMORANDUM OPINION1
I.

INTRODUCTION2
Plaintiff Joshua Scott Kelley (“Kelley”) brings this action under 42 U.S.C. §

405(g). Kelley seeks a review of a final adverse decision of the Commissioner of the
Social Security Administration (“Commissioner”), who denied his application for

1

It seems that Kelley filed his case in the Jasper Division because he resides in Walker
County, Alabama. (Doc. 1). However, the case caption on CM/ECF reads that this is a Southern
Division case. (See CM/ECF). The Court HEREBY DIRECTS the clerk to correct CM/ECF to
reflect that this is a Jasper Division case.
2

Nancy A. Berryhill was named the Acting Commissioner on January 23, 2017. See
https://www.ssa.gov/agency/commissioner.html. Under 42 U.S.C. § 405(g), “[a]ny action
instituted in accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in such office.”
Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil
Procedure, the Court has substituted Nancy A. Berryhill for Carolyn W. Colvin in the case
caption above and HEREBY DIRECTS the clerk to do the same party substitution on CM/ECF.

disability insurance benefits (“DIB”). Kelley filed his application on October 24,
2011. The ALJ issued his first decision on August 13, 2013. (Tr. 13). However, upon
review, the Appeals Council vacated the first decision and remanded the case. (Id.).
The second decision, which is the one before this Court, was issued on November 9,
2015. (Tr. 37). This decision was also unfavorable to Kelley. After that, Kelley
pursued and exhausted the administrative remedies available before the
Commissioner. Kelley filed his Complaint in the Northern District of Alabama on
November 6, 2016. (Doc. 1). Kelley filed his brief in support of his position on July
25, 2017. (Doc. 12). The Commissioner responded on September 25, 2017. (Doc. 15).
This case is now ripe for judicial review under section 205(g) of the Social Security
Act (the “Act”), 42 U.S.C. § 405(g).
The Court carefully reviewed the record in this case and AFFIRMS the ALJ’s
decision.
II.

RELEVANT BACKGROUND
The alleged onset date is October 6, 2011. (Tr. 13). Kelley suffers from

“cervical and lumbar degenerative disc disease, history of cervical stenosis, seizure
disorder, and unspecified drug dependence.” (Id. at 16) (emphasis omitted). He filed
his application on October 24, 2011. On August 27, 2015, Administrative Law Judge
Ronald Reeves held a hearing. (Id. at 43-73). The ALJ issued his decision on
2

November 9, 2015, which was unfavorable to Kelley. (Id. at 13-37). In that opinion,
the ALJ found that Kelley could perform “jobs that exist in significant numbers in the
national economy.” (Id. at 36) (emphasis omitted). Kelley requested that the Appeals
Council review his claim. (Id. at 3-5). They refused. (Id.).
III.

STANDARDS
The court’s review of the Commissioner’s decision is narrowly circumscribed.

The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity attaches to the ALJ’s determination of the proper legal
3

standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
IV.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a

period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.3 The Regulations define “disabled” as
“the inability to do 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
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.

3

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
4

The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
5

V.

FINDING OF THE ADMINISTRATIVE LAW JUDGE
After considering the record, the ALJ made the following findings:
1.

The claimant meets the insured status requirements of the
Social Security Act through June 30, 2016 (Exhibit 7D).

2.

The claimant has not engaged in substantial gainful activity
since October 6, 2011, the alleged onset date of disability
(20 C.F.R. § 404.1571 et seq.).

3.

The claimant has the severe impairments of cervical and
lumbar degenerative disc disease, history of cervical
stenosis, seizure disorder, and unspecified drug
dependence (20 C.F.R. § 404.1520(c)).

4.

The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity
of one of the impairments included in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. § 404.1520(d),
404.1525, and 404.1526).

5.

After careful consideration of the entire record, the
Administrative Law Judge finds that the claimant has the
residual functional capacity to perform light work as
defined in 20 C.F.R. § 404.1567(b) except he would be
limited to frequent climbing of ramps and stairs and
pushing or pulling with either or both upper extremities,
and frequent balancing, stooping, kneeling, and crouching.
He cannot reach overhead with either or both upper
extremities or crawl. He cannot as a part of job functions
climb ropes, ladders, or scaffolds, perform in concentrated
exposure to extreme cold temperatures or vibration, or
perform in exposure to work hazards. He would not be able
to perform any jobs that would have urine drug screening
as part of the job requirement either for initial application
or on an ongoing basis through the term of employment.
6

6.

The claimant is unable to perform any past relevant work
(20 C.F.R. § 404.1565).

7.

The claimant was born on [REDACTED] and was 31 years
old, which is defined as a younger individual age 18-49, on
the alleged disability onset date (20 C.F.R. § 404.1563).

8.

The claimant has a high school education and is able to
communicate in English (20 C.F.R. § 404.1564).

9.

Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Guidelines as a framework supports a finding
that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20
C.F.R. Part 404, Subpart P, Appendix 2).

10.

Considering 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 (20 C.F.R. § 404.1569 and
404.1569(a)).

11.

The claimant has not been under a disability, as defined in
the Social Security Act, from October 6, 2011, through the
date of this decision (20 C.F.R. § 404.1520(g)).

(Tr. 16-37) (emphasis omitted).
VI.

ANALYSIS
A.

The ALJ Properly Considered the Evidence From the Treating and
Non-treating Physicians.

Kelley argues that the ALJ did not show “‘good cause’ for dismissing the

7

opinions and treatment records of Dr. Bivona and Dr. Miller.” (Doc. 12 at 30)
(emphasis omitted). Kelley argues three reasons why the ALJ should have given their
opinions more weight. (See id. at 34). Kelley argues that evidence supported their
opinions, the evidence did not support a different conclusion, and the opinions “are
not conclusory or inconsistent with his medical records.” (Id. at 34). Additionally,
Kelley argues that the ALJ was wrong to put so much reliance on two physicians who
never examined him and displayed a degree of unfamiliarity with his records. (See id.
at 36-39). Further, he argues that evidence showing his minimal daily activity
supports his claim of disability. (See id. at 38-40).
In response, the Commissioner notes the ALJ’s thorough opinion. (See Doc.
15 at 15). Specifically, the Commissioner recites, in detail, the ALJ’s comments on
treating physicians Dr. Bivona and Dr. Miller. (See id. at 16-20). The Commissioner
argues that the ALJ gave the appropriate weight to the medical testimony. (See id. at
20-21).
In this case, it is important to remember two things. First, the residual
functional capacity is determined by the ALJ, not the doctors. See 20 C.F.R. §
404.1527(d); see also Robinson v. Astrue, 365 F. App’x 993, 999 (11th Cir. 2010).4

4

The Commissioner cites to the Eleventh Circuit in Green for the proposition that “an
ALJ’s RFC finding can be supported by substantial evidence even if there is no medical source
statement in the record.” (Doc. 15 at 27) (citing Green v. Social Security Administration, 223 F.
8

Second, this Court is constrained by the substantial evidence standard. See
Blooodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (“We may not decide
the facts anew, reweigh the evidence, or substitute our judgment for that of the
Secretary. Even if we find that the evidence preponderates against the Secretary's
decision, we must affirm if the decision is supported by substantial evidence.”).
Here, the Court concludes that the ALJ’s committed no reversible error in his
treatment of the treating and non-treating physicians’ opinions.
i.

The ALJ’s Decision To Discount the Treating Physician’s
Opinions Is Supported by Substantial Evidence.

First, Kelley argues that the ALJ should not have given little weight to treating
physicians Dr. Bivona and Dr. Miller. (See Doc. 12 at 30-35). Generally, an ALJ
should give “considerable weight” to a treating physician’s testimony. See Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). But this is not always the case, and
when it is not, “good cause” must be shown. See id. When this occurs:
The ALJ must clearly articulate the reasons for giving less weight to the
opinion of a treating physician, and the failure to do so is reversible
error. MacGregor, 786 F.2d at 1053. We have found “good cause” to
exist where the doctor's opinion was not bolstered by the evidence, or
where the evidence supported a contrary finding. See Schnorr v. Bowen,
816 F.2d 578, 582 (11th Cir.1987); Sharfarz v. Bowen, 825 F.2d 278,

App'x 915, 922-23 (11th Cir. 2007)). “[T]he burden lies with the claimant to prove her
disability.” Green, 223 F. App’x at 923 (citing Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005).
9

280–81 (11th Cir.1987). We have also found good cause where the
doctors' opinions were conclusory or inconsistent with their own
medical records. See Jones v. Department of Health & Human Services,
941 F.2d 1529, 1532–33 (11th Cir.1991); Edwards v. Sullivan, 937 F.2d
580, 583 (11th Cir.1991).
Id. Here, the ALJ articulated his reasons why he did not give considerable weight to
the treating physicians. (Tr. 30-31). The ALJ pointed to medical records from the
Preferred Pain Associates of Alabama, P.C. and Dr. Miller to support his conclusion.
(Tr. 30); see e.g. (Tr. 816) (Preferred Pain Associates of Alabama record from March
12, 2015, noting that Kelley’s back pain was “doing good”); (Id. at 820) (Preferred
Pain Associates of Alabama record from February 12, 2015, noting that Kelley was
“doing well” with his medications); (Id. at 822) (Preferred Pain Associates of
Alabama record from March 13, 2015, noting that Kelley’s back pain was “doing
good”); (Id. at 787) (Dr. Miller’s record noting that pain was “made tolerable by
taking Opana”). Additionally, the Court notes the existence of records that indicate
that Kelley’s pain was being managed. See e.g. (Id. at 577) (record from Dr. Miller
noting, among other things, that neck and lower back pain was reduced from a 10/10
to a 2/10 after taking his medicine); (Id. at 545) (record from Dr. Miller noting that
neck pain was reduced after medication); (Id. at 790) (record from Dr. Miller noting
that “[t]he pain is well controlled with Opana, which enables him to work for
Alabama Power”); (Id. at 794) (record from Dr. Miller noting that “[a]s long as he
10

takes Norco, his pain is tolerable, which enables him to work for Alabama Power”);
(Id. at 798) (noting the benefits of Norco). The existence of these records is not to say
that there are not other examples where Kelley was not doing too well with managing
his pain. Those records exist, and the ALJ noted them in his opinion. (See id. at 29).
Further, the ALJ did not ignore the treating physicians’ opinions. (See id. at 3031). He merely contrasted their conclusions in statements to counsel (and on an
attending physician form) to the longitudinal medical record formed over the previous
months. (See id.). This contrast was proper for the ALJ’s evaluation of the
consistency of the physicians’ statement.
Kelley makes good arguments reciting Dr. Miller’s and Dr. Bivona’s opinions.
(See Doc. 12 at 30-34). However, that is not enough. Kelley must show why the
ALJ’s opinion (that the record did not support the severity alleged in their opinions)
was not supported by substantial evidence. He was unable to make that showing.
Upon review, this Court will not disturb the ALJ’s findings on this matter, finding
them supported at least by substantial evidence.
ii.

Kelley Has Not Shown That the ALJ Erred in Relying on the
Non-treating Physicians’ Testimony.

Kelley emphasizes that non-treating physician Dr. Todorov made several
misstatements regarding his medical record. (See Doc. 12 at 36). He argues that the

11

ALJ should not have given this opinion “‘significant weight’” because of this “blatant
incompetence.” (Id.); (But see Tr. 33) (giving “significant weight” to Dr. Todorov’s
opinion). The Commissioner argues that the ALJ considered the entire record and is
the one responsible for determining the RFC. (See Doc. 15 at 25-27). The Court
reviewed the examination of Dr. Todorov. (Tr. 48-64). Kelley was able to effectively
cross-examine Dr. Todorov on his opinions, and the ALJ was there to hear this
exchange. (See generally id. at 47-66). Even though Dr. Todorov’s testimony was
mistaken at times, the ALJ is still entitled to give weight to his opinion if he finds it
is supported by the record. (See id. at 33). Further, these misstatements seemed more
akin to moments of confusion in a case where Kelley’s attorney admitted that the
record was voluminous. (See id. at 63) (“That’s okay. There’s a lot of records here.”).
Further, Kelley had the chance to ask Dr. Todorov if his misunderstandings changed
his opinion of the case, but for reasons unclear to the Court, neglected to do so. Even
if there was an error in relying on Dr. Todorov, Kelley has not shown the harm that
flowed from it. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying
harmless error). In other words, it does not immediately follow that Kelley has met
his burden to prove disability if the ALJ does not consider Dr. Todorov’s testimony.
Kelley argues that the ALJ should not have given “significant weight” to nontreating physician Dr. Witkind’s opinion for the simple reason being that it was two
12

years old. (See Doc. 12 at 36-37). However, the Commissioner notes that the ALJ
noted that Dr. Witkind was the expert from 2013 and that the ALJ reviewed the
record. (See Doc. 15 at 24-25). There is no error in taking Dr. Witkind’s opinion for
what it is worth and seeing if it comports with the later evidence. Here, the ALJ
concluded that “Dr. Witkind’s opinion . . . is consistent with the claimant’s
longitudinal treating medical records. His opinion is also consistent with the opinion
of Dr. Todorov.” (Tr. 31-32).
B.

The ALJ Properly Evaluated Kelley’s Credibility.

This court has established a three part “pain standard” that applies
when a claimant attempts to establish disability through his or her own
testimony of pain or other subjective symptoms. The pain standard
requires (1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the alleged pain
arising from that condition or (3) that the objectively determined
medical condition is of such a severity that it can be reasonably expected
to give rise to the alleged pain. See Landry v. Heckler, 782 F.2d 1551,
1553 (11th Cir.1986). The standard also applies to complaints of
subjective conditions other than pain. Jackson v. Bowen, 873 F.2d 1111,
1114 (8th Cir.1989).
Holt v. Sullivan, 921 F.2d 1221, 1222 (11th Cir. 1991).
Kelley also argues that the ALJ did not evaluate his credibility properly,
instead picking evidence that supported his theory of the case. (See Doc. 12 at 41, 4647). In response, the Commissioner argues that the ALJ properly applied the relevant
framework by viewing the record as a whole. (See Doc. 15 at 32).
13

Kelley argues that “the ALJ neglected to consider all of the objective tests and
the combined impact of [his] pain and impairments on his overall condition.” (Doc.
12 at 43). However, the ALJ did a thorough review of Kelley’s condition. (See e.g.,
Tr. 16-26). In the face of this in-depth review, the Court is not free to second guess
and re-weigh the ALJ’s decisions. C.f. Bloodsworth v. Heckler, 703 F.2d at 1239.
Kelley relies on the 11th Circuit in McCruter to argue that the ALJ did not
consider all of Kelley’s record. (See Doc. 12 at 43). McCruter states that: “It is not
enough to discover a piece of evidence which supports that decision, but to disregard
other contrary evidence. The review must take into account and evaluate the record
as a whole.” McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986) (citing Martin
v. Heckler, 748 F.2d 1027, 1032 (5th Cir. 1984); Universal Camera Corp. v. NLRB,
340 U.S. 474, 487–88, 71 S.Ct. 456, 463–65, 95 L.Ed. 456 (1951)). However,
McCruter does not dictate the outcome here because the ALJ did consider “the record
as a whole.” See id.
Additionally, Kelley notes that the focus here should be on whether he can
engage in gainful employment, not do household chores. (See Doc. 12 at 44) (citing
Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997); Bennett v. Barnhart, 288
F.Supp. 2d 1246, 1252 (N.D. Ala. 2003); Easter v. Bowen, 867 F.2d 1128, 1130 (8th
Cir. 1989)). Kelley criticizes the ALJ’s discussion of his household activities. (See
14

id.). However, the ALJ was merely noting Kelley’s seeming inconsistencies in his
comments regarding his activity compared to the alleged pain. (Tr. 34). While
household chores do not disqualify a claimant from benefits, that does not mean that
it is a categorical error for an ALJ to even mention household chores. C.f. SSR 96-7p,
1996 WL 374186.
Kelley analogizes to the Eleventh Circuit’s decision in Lamb v. Bowen to
support his contention that “the record in this case contains exhaustive documentation
of [his] medical conditions, and [his] credibility is clearly established.” (Doc. 12 at
45). However, this case in unlike Lamb v. Bowen. First, this case is procedurally
different. In Lamb, the ALJ actually found for the claimant, but the Appeals Council
overturned that decision. See Lamb v. Bowen, 847 F.2d 698, 699-702 (11th Cir.
1988). Here, the ALJ found that Kelley was not disabled, and the Appeals Council
declined to review. (Tr. 3-5, 37). In Lamb, the Eleventh Circuit seemed to place a
special value on the ALJ’s opinion, compared to the Appeals Council. See Lamb, 847
F.2d at 702. (“[T]he ALJ, who head the testimony and observed the appellant, found
his complaints credible. Though not bound by it, some credence must be afforded this
determination by the ALJ. The ALJ observed the claimant and was in a better position
to evaluate his veracity.”). Second, and more importantly, the ALJ fully evaluated the
record and gave his reasons for making his determinations. (Tr. 16-35). He noted
15

places in the record where physicians were managing Kelley’s pain. (Id. at 20-21). In
doing so, he also recognized areas of the record showing Kelley’s struggles with his
pain, and he considered Kelley’s entire condition together. (See generally id. at 1635); (See also id. at 26) (noting that the ALJ considered the “combination of
impairments”).
Also, Kelley claims in his brief that “[he] has continuously attempted to
manage his pain with no relief.” (Doc. 12 at 45) (emphasis added). However, this
statement is directly contradicted by the medical record. The ALJ cites where, in
2015, the Preferred Pain Associates of Alabama noted that Kelley was “doing good”
and “doing well” on his medications. (Tr. 30). As another example, on January 3,
2012, Dr. Miller noted: “Pain prior to medication is 10/10. Pain after medication is
02/10.” (Tr. 547). Kelley implies that the ALJ selectively chose the evidence to
support his “theory of the case.” (See Doc. 12 at 46). This is not a fair accusation in
the face of the ALJ’s lengthy opinion detailing the record. (Tr. 16-35). Further, “[a]n
ALJ is not required to refer specifically to each piece of evidence in the record, but
must sufficiently explain the weight given to ‘obviously probative exhibits.’” Cooper
v. Comm’r of Soc. Sec., 521 F. App’x 803, 808 (11th Cir. 2013) (citing Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). Here, the ALJ did so.

16

Kelley argues that the ALJ did not properly consider the SSR 96-7p factors5
and should have given deference to his credibility. (See Doc. 12 at 47). The Court
disagrees. As the Court has explained, the ALJ considered the record as a whole, and
his decision is supported by substantial evidence. (See Tr. 27).
Finally, Kelley states that “[s]ubstantial evidence in this case supports a finding

5

The regulation states, in relevant part:

In recognition of the fact that an individual's symptoms can sometimes suggest a
greater level of severity of impairment than can be shown by the objective medical
evidence alone, 20 CFR 404.1529(c) and 416.929(c) describe the kinds of
evidence, including the factors below, that the adjudicator must consider in
addition to the objective medical evidence when assessing the credibility of an
individual's statements:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain or other
symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for
relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186.
17

that Mr. Kelley’s cervical pain and seizures, in conjunction with his numerous other
severe conditions, can reasonably be expected to cause his symptoms and functional
limitations.” (Doc. 12 at 48). Kelley is confusing the standard here. Kelley has the
burden to prove his disability. See Vaugh v. Heckler, 727 F.2d 1040, 1041-42 (11th
Cir. 1984) (“[A] claimant has the burden of proving disability.”) (citing Crosby v.
Schweiker, 650 F.2d 777, 778 (5th Cir. 1981)). Substantial evidence is the standard
used when the Court reviews the ALJ’s opinion. Bloodsworth, 703 F.2d at 1239; see
also Hunter v. Social Sec. Admin., Commissioner, 808 F.3d 818, 822 (11th Cir. 2015).
In conclusion, the ALJ’s decision regarding Kelley’s credibility is supported
by substantial evidence.
VII. CONCLUSION
In conclusion, the Court finds that the decision of the Commissioner is
supported by substantial evidence. This might not be the decision that the Court
would have reached had it been in the position of the ALJ; however, the ALJ
followed the proper framework, considered the evidence as a whole, and made a
reasoned decision supported by substantial evidence. While reasonable minds can
differ here, substantial evidence gives deference to the ALJ. It would not be
appropriate to disturb this decision. Throughout this case, the parties have spoken
often about the future of Kelley’s health and the unfortunate possibility of it
18

deteriorating. (See Doc. 12 at 8, 11, 25-26, 37); (Doc. 15 at 18, 31). The Court is
sensitive to and understands those concerns. The opinion the Court issues today does
not say that Kelley can never be found disabled and passes no judgment on potential
future claims.6 Accordingly, the Commissioner’s decision is AFFIRMED.
DONE and ORDERED this 15th day of February, 2018.

VIRGINIA EMERSON HOPKINS
United States District Judge

6

The Court notes, in passing, the following persuasive authority. The Eighth Circuit

noted:
Especially in the context of a progressive disease or degenerative condition,
evidence that is offered as proof of a disability, and not found persuasive by an
ALJ in a prior proceeding, may be considered in a subsequent proceeding in
combination with new evidence for the purpose of determining if the claimant has
become disabled since the ALJ's previous decision.
Hillier v. Social Sec. Admin., 486 F.3d 359, 365 (8th Cir. 2007) (citing other sources). Further,
then Chief Judge Posner of the Seventh Circuit noted:
What is true is that under the collateral estoppel branch of res judicata, the
judgment denying the earlier claim may bar the relitigation of issues essential to
the second claim as well. But it need not, especially when the disabling condition
is progressive; for in that event there is no necessary inconsistency in finding an
applicant not disabled at time t but disabled at t+1. There thus is no absolute bar
to the admission in the second proceeding of evidence that had been introduced in
the prior proceeding yet had not persuaded the agency to award benefits.
Groves v. Apfel, 148 F.3d 809, 810-811 (7th Cir. 1998) (Posner, C.J.).
19