Thomas v. Astrue
MEMORANDUM OPINION AND ORDER entered. Oral argument waived in this action 20 . Upon consideration of the administrative record, and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 11/28/2012. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JOSEPH A. THOMAS,
MICHAEL J. ASTRUE,
Commissioner of Social Security,:
CIVIL ACTION 12-0180-M
MEMORANDUM OPINION AND ORDER
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 and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 13).
The parties filed written consent and this action has been
referred 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. 21).
argument was waived in this action (Doc. 20).
consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
Richardson v. Perales, 402 U.S. 389, 401 (1971).
substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."
Brady v. Heckler, 724 F.2d 914, 918
(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
fifty-three years of age, had completed a high school education1
(Tr. 45), and had previous work experience as a carpenter and
tile layer (Tr. 46).
In claiming benefits, Plaintiff alleges
disability due to Hepatitis B and C, anxiety, and depression
The Plaintiff filed applications for disability insurance
benefits and SSI on June 3, 2009 (Tr. 129-35; see also Tr. 14).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although Thomas could not
perform a full range of light work, he was capable of performing
Error! Main Document Only.Plaintiff testified that he had received
jobs existing in the national economy (Tr. 14-26).
requested review of the hearing decision (Tr. 7-8) by the
Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
Specifically, Thomas alleges
that the ALJ did not properly consider the opinions of her
treating physician (Doc. 13).
Defendant has responded to—and
denies—this claim (Doc. 16).
Plaintiff's only claim is that the ALJ did not accord
proper legal weight to the opinions, diagnoses and medical
evidence of Plaintiff's physician.
More specifically, Thomas
has referenced the opinion of treating physician Dr. Kenneth
Sherman (Doc. 13).
It should be noted that "although the
opinion of an examining physician is generally entitled to more
weight than the opinion of a non-examining physician, the ALJ is
free to reject the opinion of any physician when the evidence
supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d
1078, 1084 (5th Cir. 1981);2 see also 20 C.F.R. § 404.1527
a Graduate Equivalency Degree (Tr. 40).
The Eleventh Circuit, in the en banc decision Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as
precedent decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
On November 15, 2010, Dr. Kenneth Sherman completed a
Mental Residual Functional Capacity Questionnaire in which he
indicated that Thomas was mildly restricted in his daily living
activities and in maintaining social functioning (Tr. 398-99).
The doctor went on to indicate that Plaintiff would often suffer
deficiencies of concentration, persistence, or pace resulting in
failure to complete tasks in a timely and appropriate manner and
that he could be expected to have one or two episodes of
decomposition in work or work-like settings which would cause
him to withdraw from that situation or experience exacerbation
of signs and symptoms for a period lasting at least two weeks.
At the hearing before the ALJ, a vocational expert
(hereinafter VE) gave testimony as to jobs that Thomas could
perform based on questions asked by the ALJ (Tr. 56-58).
given the opportunity to question the VE, Plaintiff’s Attorney
asked her what jobs Thomas would be able to perform based on Dr.
Sherman’s conclusions in his Questionnaire; the VE said there
were none (Tr. 58-59).
In her determination, the ALJ explained her analysis for
determining that Thomas’s mental impairments would not keep him
from working (Tr. 17-20).
More specifically, the ALJ found that
Plaintiff had only mild restrictions in daily living activities
and social functioning.
In reaching that decision, the ALJ gave
great weight to the opinions of Dr. Sherman (Tr. 18-19).
The ALJ went on to find that Plaintiff had moderate
restrictions in concentration, persistence, or pace; the ALJ
rejected Dr. Sherman’s opinion that Thomas would often suffer
deficiencies of concentration, persistence, or pace (Tr. 19).
The ALJ rejected Sherman’s finding because the Questionnaire did
not define often; the ALJ indicated that she was unsure whether
it meant moderate or marked and went on to say the following:
Despite this one selection, Dr. Sherman’s
evaluation proceeded to note that claimant
was only mildly limited in the ability to
perform simple and repetitive tasks, and in
the ability to complete work related
activities in a normal workday or workweek.
([Exhibit 15F]). Dr. Sherman also completed
a Clinical Assessment of Fatigue form in
November 2010, and determined that
claimant’s fatigue would not prevent him
from functioning in everyday activities or
work, and that claimant could work 8 hours
per day, 40 hours per week on a sustained
basis, without missing more than 2 days of
work per month. (Exhibit 16F). Thus, a
review of the entirety of Dr. Sherman’s
evaluation suggests that it is his opinion
that claimant is only mildly limited in this
area. Alternatively, and to the extent that
Dr. Sherman has somehow opined that claimant
has more than a moderate limitation, the
record does not support such a finding.
Again, claimant admits that he has no
limitation in counting change, handling a
savings account, reading, writing,
arithmetic, and paying bills if needed.
(Exhibit 6E and Hearing testimony). Combine
these admissions with Dr. Davis’ examination
in October 2009 (Exhibit 6F), and the record
supports not more than a moderate limitation
to claimant’s concentration, persistence and
The ALJ went on to find that Thomas had experienced no
episodes of decompensation (Tr. 20).
The ALJ rejected Dr.
Sherman’s opinion that Plaintiff would experience one or two
episodes, noting that there was no record of inpatient
The ALJ further found that there was
nothing in Sherman’s treatment notes to support his conclusion
and that his overall evaluation contradicted his conclusion as
The ALJ also noted that Plaintiff did not live in a
highly supportive living arrangement and that he was able to go
out on his own to get his medications, see his doctors, and meet
with his attorney.
Finally, the ALJ noted that Dr. Sherman’s
opinion was inconsistent with the other evidence of record.
In bringing this action, Plaintiff complains that “the ALJ
only gave significant weight to the portions of Dr. Sherman’s
opinion that support the decision” (Doc. 13, p. 3).
finds, however, that the ALJ gave significant weight to the
portions of Dr. Sherman’s opinion that were supported by the
The ALJ explained why she rejected two of the
Plaintiff has failed to point to any
evidence that demonstrates why the ALJ is wrong.
It is of no
moment that the VE stated that Thomas would be unable to work
based on the conclusions of Dr. Sherman if the Doctor’s
conclusions are not supported by the evidence.
that they are not.
The Court finds
Furthermore, the Court finds the ALJ’s
decision to be supported by substantial evidence.
Plaintiff has raised a single claim in bringing this
That claim is without merit.
Upon consideration of the
entire record, the Court finds "such relevant evidence as a
reasonable mind might accept as adequate to support a
Perales, 402 U.S. at 401.
Therefore, it is
ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and
that this action be DISMISSED.
Judgment will be entered by
DONE this 28th day of November, 2012.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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