Carter v. Colvin

Filing 21

Order entered that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/25/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MILTON A. CARTER,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

CIVIL ACTION NO. 13-00377-B

ORDER
Plaintiff Milton A. Carter (hereinafter “Plaintiff”) brings
this action seeking judicial review of a final decision of the
Commissioner of Social Security denying his claim for a period
of disability, disability insurance benefits, and supplemental
security income under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq.

On April 11,

2014, the parties consented to have the undersigned conduct any
and all proceedings in this case.

(Doc. 18).

Thus, the action

was referred to the undersigned to conduct all proceedings and
order

the

entry

of

judgment

in

accordance

with

636(c) and Federal Rule of Civil Procedure 73.

28

U.S.C.

§

Upon careful

consideration of the administrative record and the memoranda of
the

parties,

it

is

hereby

Commissioner be AFFIRMED.

ORDERED

that

the

decision

of

the

I.

Procedural History
Plaintiff protectively filed an application for a period of

disability,

disability

insurance

security income on June 25, 2010.

benefits,

and

supplemental

(Tr. at 78-79, 154, 158).

Plaintiff alleged that he has been disabled since September 15,
2008, due to degenerative joint disease, back and knee pain, and
post traumatic stress disorder.

(Id. at 180, 184).

Plaintiff’s

applications were denied and upon timely request, he was granted
an administrative hearing before Administrative Law Judge Katie
H. Pierce (hereinafter “ALJ”) on December 13, 2011.
47).

Plaintiff

attended

the

hearing

with

provided testimony related to his claims.
vocational

expert

(“VE”)

provided testimony.

also

appeared

(Id. at 59).

at

his

(Id. at

counsel

(Id. at 53).
the

hearing

and
A
and

On January 20, 2012, the ALJ

issued an unfavorable decision finding that Plaintiff is not
disabled.

(Id.

at

42).

After

considering

additional

information, the Appeals Council denied Plaintiff’s request for
review on June 5, 2013.

(Id. at 1).

The parties waived oral

argument (Doc. 17), and agree that this case is now ripe for
judicial review and is properly before this Court pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3).
II.

Issue on Appeal
Whether the ALJ erred in
not giving
“controlling weight” to the opinions of
Plaintiff’s treating psychiatrist?

2

III. Factual Background
Plaintiff was born on August 21, 1977, and was thirty-four
years

of

age

at

the

December 13, 2011.
went

through

the

time

of

his

(Tr. 47, 53).
twelfth

grade

administrative

hearing

on

Plaintiff testified that he

in

school

and

served

in

the

military from 1997 to 2000. (Id. at 53-54). Plaintiff further
testified that he worked as an electrical helper and a laborer
from 2007 to 2008, and that he last worked in November 2009 as a
cable television installer.

(Id. at 53, 185).

According to Plaintiff, he lives alone, although sometimes,
his three-year-old son stays with him.

(Id. at 56).

Plaintiff

reported that he is able to care for his personal needs and that
his mother and his son’s mother assist him with preparing meals
and

performing

Plaintiff
church.

also

other

household

reported

that

he

(Id. at 199, 201-02).

chores.

(Id.

is

to

able

at

56,

shop

and

198).
go

to

According to Plaintiff, he does

not have any bills and does not have a bank account, but he is
able to count change.

(Id. at 201-02).

Plaintiff testified that he is in treatment for alcohol and
drug abuse and that he has been in remission since January 2010.
(Id. at 54-55). Plaintiff listed his medications as Motrin (for
pain),

Paxil

(for

muscle relaxer.

depression),

(Id. at 187).

3

Trazadone

(for

sleep),

and

a

IV.

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

limited

determining

1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

1

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
1

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
4

(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as 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.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

§§

regulations
process

determining if a claimant has proven his disability. 2

2

C.F.R.

for

20 C.F.R.

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
5

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since September
15, 2008, his alleged onset date and that Plaintiff has the
severe impairments of post traumatic stress disorder (“PTSD”),
major depressive disorder (“MDD”), osteoarthritis of the knees,
and cocaine, cannabis, and alcohol dependence.
addition,

the

Plaintiff’s

ALJ

determined

substance

use

that,

disorders,

(Tr. 20-21).

taking
his

into

In

account

impairments

meet

sections 12.04, 12.06, and 12.09 of 20 C.F.R. Part 404, Subpart
P, Appendix 1.

(Id. at 21).

The ALJ found that Plaintiff was credible concerning the
following
behavioral

symptoms
changes

and

limitations:

associated

with

Plaintiff
the

use

of

“has

exhibited

drugs/alcohol,

which exacerbates his mental health symptomology and lowers his
cognition;” he is prone to recurrent episodes of mental health
symptoms and stopped taking his psychotropic medications when
using and abusing drugs/alcohol; and he “has been clean and
sober since his admission to the VA hospital in June 2010, which
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

6

is generally consistent with the treatment records.”
22).

The

ALJ

further

found

that

if

Plaintiff

(Id. at

stopped

the

substance abuse, his remaining limitations would cause more than
a

minimal

impact

activities;
impairment
However,

on

his

therefore,
or

he

ability
would

combination

the

ALJ

of

concluded

to

perform

continue

to

impairments.

that

if

basic

have
(Id.

Plaintiff

a

work
severe

at

26).

stopped

the

substance abuse, he would not have an impairment or combination
of

impairments

that

meets

or

medically

equals

any

of

the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Id. at 27).
In addition, the ALJ found that if Plaintiff stopped the
substance abuse, he would have the residual functional capacity
to perform a reduced range of medium work, with the following
restrictions:
balance

and

he

can

climb

frequently

ramps/stairs

ladders, and scaffolding.

stoop,
and

kneel,

crouch,

occasionally

climb

crawl,
ropes,

In addition, he can perform simple,

routine, repetitive tasks, have brief superficial contact with
the

public,

independently,

work

in

maintain

close

proximity

attention

and

to

others,

concentration

for

work
two

hours at a time before needing to take a regularly scheduled
break or meal, and adapt to minimal changes in the work setting.
(Id. at 29).
Utilizing the testimony of a VE, the ALJ determined that if

7

Plaintiff stopped the substance abuse, he would be unable to
perform past relevant work given his RFC. (Id. at 39).

The ALJ

again relied upon the testimony of the VE to conclude that if
Plaintiff

discontinued

his

substance

abuse,

considering

his

residual functional capacity for a range of medium work, as well
as his age, education and work experience, there are other jobs
existing in the national economy that he is able to perform,
such as “hand packer,” “cloth tearer,” “laborer,” and “drier
attendant,” all of which are classified as medium and unskilled.
(Id. at 40).
is

a

The ALJ concluded that Plaintiff’s substance abuse

contributing

disability
stopped

the

and

factor

that

substance

material

Plaintiff
abuse.

would

to

the

not

Accordingly,

that Plaintiff is not disabled.

determination

be
the

disabled
ALJ

if

of
he

determined

(Id. at 41).

In determining whether Plaintiff met any Listing, the ALJ
made the following relevant findings:
4.
The
claimant’s
mental
impairments,
including the substance use disorders, meet
listings 12.04, 12.06 and 12.09 of 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d) and 416.920(d)).
The “paragraph A”
criteria are satisfied
because the claimant has had behavioral
changes associated with regular use of
substances that affect the central nervous
system. . . . .
On July 28, 2011, Douglas Ewing, MD, the
claimant’s treating psychiatrist, completed
a Mental Residual Functional Capacity (MRFC)

8

Questionnaire, and found that the claimant
had
the
following
limitations:
marked
restriction of activities of daily living;
marked degree of difficulty maintaining
social functioning; frequent deficiencies of
concentration, persistence or pace resulting
in failure to complete tasks in a timely and
appropriate
manner;
and
repeated
(3)
expected episodes of decompensation in work
or work-like settings. . . . Dr. Ewing
further noted that based on his evaluation
of
the
claimant’s
mental
status,
the
claimant
has
marked
limitation
in
the
ability
to
understand,
carry
out,
and
remember instructions; marked limitation in
the ability to respond appropriately to
supervision;
extreme
limitation
in
the
ability to respond appropriately to coworkers; extreme limitation in the ability
to respond appropriately to customary work
pressures; marked limitation in the ability
to perform simple tasks; marked limitation
in the ability to perform repetitive tasks;
and marked limitation in the ability to
complete work related activities in the
normal workday or work week. Dr. Ewing
further reported that these limitations can
be expected to last greater than 12 months.
Dr. Ewing indicated that the claimant’s
alcohol/substance use is material to the
functional restrictions listing in this
form, meaning the claimant would not have
the
same
restrictions
if
he
stopped
alcohol/substance abuse. (Exhibit 8F).
In activities of daily living, the claimant
has marked restriction. . . . The claimant
reported that he did not prepare food or do
household chores. He said he rarely goes
outside, and cannot go out alone.
He shops
for snacks weekly for about 30 minutes at a
time. He watches television sometimes during
the day. (Exhibit 5E).
In social functioning, the claimant has
marked difficulties. . . . The claimant has
had problems isolating himself from others.

9

He goes to church and to doctor appointments
when taken. He does not handle stress well,
as he gets angry, irritable, and depressed.
The claimant completed a Drug And Alcohol
Questionnaire on July 19, 2010 and said he
has not used alcohol or drugs since June 28,
2010.
The claimant reported that drinking
or drug use causes problems in his ability
to socialize with family, friends or others
in that it causes isolation from family,
anger and depression. The claimant reported
that
at
the
time
he
completed
this
Questionnaire, he was an inpatient at the VA
hospital in Biloxi in a treatment program
since June 28, 2010. (Exhibit 6E).
With regard to concentration, persistence or
pace, the claimant has marked difficulties.
. . . The claimant needs reminders to take
care of personal needs/grooming, to take
medication and to go places.
He said he
does not prepare meals because he is unable
to focus.
He does not drive because he is
not able to concentrate to drive.
He can
count change, but does not have bills or a
bank account. He does not finish what he
starts.
He
cannot
follow
written
instructions;
but
he
reported
being
partially
able
to
follow
spoken
instructions. (Exhibit 5E).
As for episodes of decompensation, the
claimant has experienced repeated episodes
of
decompensation.
(Exhibit
8F).
The
claimant has been admitted to the VA
hospital for treatment of his substance
abuse and PTSD in 2003 and 2010. (Exhibits
1F and 2F).
Because the claimant’s mental impairments,
including the substance use disorders, cause
at least two “marked” limitations or one
“marked” limitation and “repeated” episodes
of
decompensation,
the
“paragraph
B”
criteria are satisfied. . . .
The claimant was treated in 2003 in a 28-day

10

drug and alcohol program.
The claimant saw
Huiping Pei, MD, an internist, and John B.
Howell, MD, an internist, on June 9, 2009,
for primary care.
At that time, it was
noted that this was his first follow-up
visit since 2004.
Dr. Howell assessed the
claimant
with
depression,
followed
by
psychiatry. The claimant underwent a mental
status examination with Willie F. King, Jr.,
MC, an addiction therapist, on August 4,
2009. Mr. King recommended biweekly relapse
prevention
group
therapy
sessions
and
Alcoholics Anonymous (AA) meetings. (Exhibit
1F).
The claimant saw Dr. Ewing on April 9, 2010,
for a follow-up of PTSD.
Dr. Ewing noted
the claimant said he had not been taking his
prescribed
psychotropic
medications.
The
claimant said he took the medications for 12 weeks, and had a positive effect while on
the medications. . . . . (Exhibit 1F).
The claimant tested positive for cocaine and
cannabis on May 5, 2010 and June 28, 2010.
On June 29, 2010, the claimant was evaluated
by William G. Reasor, III, CRNP, at his
admission to the psychosocial residential
rehabilitation treatment program (PRRTP) to
facilitate participation in the substance
abuse residential rehabilitation treatment
program (SARRTP).
The claimant presented
with a chief complaint of alcohol, marijuana
and
cocaine
dependency.
The
claimant
reported that he started drinking at age 20;
and his longest period of sobriety had been
6 months. He said he last used alcohol June
20, 2010. He reported cocaine use since
2002, with last usage 2-3 weeks ago. His
longest period of sobriety had been 3-6
months; and he reported using twice a month.
The claimant also reported cannabis use for
10-12 years. He reported daily usages, with
last usage on June 27, 2010; and his longest
period of sobriety has been three months.
The psychiatric exam showed claimant was
alert and oriented.
He had good judgment

11

and insight, normal mood and affect and
intact
recent
and
remote
history.
The
claimant
was
fully
functional
in
all
activities of daily living. Mr. Reasor
diagnosed the claimant with polysubstance
dependency and depression.
At that time,
the
claimant
had
no
service-connected
disabilities. The claimant reported that he
first took ecstasy in 1998; and he started
suffering from depression and anxiety in
1998 and psychosis in 1999. The claimant
reported
that
he
worked
as
a
cabletelevision
installer
from
July-November
2009, and was laid off from this job.
The
claimant told the social worker at the VA on
June 29, 2010, that “If I am mentally able
to work, I will.”
While hospitalized for
substance abuse treatment, the claimant
attended
lectures
and
group
therapy
sessions. (Exhibit 1F).
The claimant was hospitalized again from
August 9, 2010-October 1, 2010, for the PTSD
intensive
outpatient
program,
and
had
discharge diagnoses including PTSD, tobacco
dependency,
polysubstance
dependency
in
early remission, obesity and hyperlipidemia.
Mr. Reasor noted the claimant was stable at
discharge.
The claimant was noted to learn
a variety of skills related to emotional
regulation and relaxation skills. He was
quiet
during
most
group
sessions.
The
claimant had a bright mood and affect upon
discharge. (Exhibit 7F).
The
claimant
underwent
an
intensive
outpatient
psychological
assessment
on
September 13, 2010, with Clinton W. Martin,
Jr., PhD. The claimant reported having
several friends until after his military
experience when he began isolating and
socially withdrawing. The claimant expressed
interest
in
returning
to
school
for
additional training after he becomes more in
control of his mood and PTSD symptoms.
The
claimant
reported
problems
“grasping
reality” and
hearing voices.
He had

12

suspicions of being followed and experiences
significant sleep disturbance. The diagnosis
“psychotic disorder, not otherwise specified
(NOS)” was added to his problem list in
2004, after he reported the experience of
hearing sounds that sounded like voices. He
reported occasional feelings of helplessness
and fear, recurrent intrusive recollections,
recurrent nightmares, recurring flashbacks,
and intense distress in the presence of his
trigger cues.
He was then taking two
Trazodone nightly and Sertraline daily. The
claimant acknowledged that his tendency to
self-medicate made it difficult for him to
do well at work. He reported that his
substance
use
creates
conflict
in
his
relationship with his fiancée, as she does
not approve of his use and tendency to
isolate when using. During the mental status
examination, he was alert and oriented. He
was
casually
dressed
and
appropriately
groomed. Speech was normal in rate and
rhythm.
Dr.
Martin
noted
the
claimant
reported impaired concentration, memory and
attention; but he did not appear to be
distracted. Based on the evaluation, Dr.
Martin said the claimant was experiencing a
number of symptoms related to substance
dependence,
PTSD
and
depression.
The
symptoms
cause
clinically
significant
distress and impairment in his social and
occupational functioning as well as decrease
in his overall quality of life. Given this,
Dr. Martin diagnosed the claimant with PTSD;
depressive disorder NOS; cannabis dependence
in early full remission; cocaine dependence
in
early
full
remission;
and
alcohol
dependence in early full remission.
Dr.
Martin
said
the
claimant’s
PTSD
and
depression would be the clinical focus of
his participation in the PTSD intensive
outpatient program (IOP). However, he would
be given the opportunity for continued
substance abuse treatment. (Exhibit 2F). . .
.
The claimant saw Dr. Ewing on February 24,

13

2011, and reported that he had been taking
his psychotropic medications as prescribed.
He reported better sleep with the change
from Abilify to Quetiapine, and the increase
in
his
selective
serotonin
reuptake
inhibitor (SSRI) to 250 mg per day had
resulted in increased ability to “control my
moods . . . keeping pretty tranquil.”
He
reported a minimal morning “hangover” to his
medication.
He said he was having several
nightmares per week, and was still trying to
isolate and avoiding to minimize arousal
symptoms.
During
the
mental
status
examination, his mood was reported as up and
down; and his affect was subdued.
His
speech was normal in rate, volume and
productivity. Dr. Ewing assessed him with
PTSD. (Exhibit 7F).
The claimant saw Mr. King on March 22, 2011,
and denied any symptoms associated with the
present regimen of psychiatric medications;
and he did not report any problems or side
effects.
However, the claimant admitted
that he was non-compliant with taking his
medications, and had not refilled some of
his medications in over 2 months. He
admitted he relapsed on January 15, 2011,
and smoked cannabis; however, he said he has
not used alcohol since June 2010, and denied
using any form of cocaine.
During the
mental status examination, his mood appeared
mildly depressed with congruent affect.
(Exhibit 7F). . . .
Based on the cumulative evidence of record,
the
undersigned
finds
that,
when
the
claimant’s substance abuse is considered, he
meets the criteria of Listings 12.04, 12.06,
and 12.09.
This conclusion is supported by
the record evidence of the claimant’s longstanding history of drug and alcohol abuse
and
the
information
contained
in
the
claimant’s mental health treatment records.
Great
weight
is
given
to
the
MRFC
Questionnaire completed by Dr. Ewing and Mr.
King, the claimant’s addiction therapist, in

14

Exhibit 8F. Dr. Ewing indicated that the
claimant’s alcohol/substance use is material
to the functional restrictions listing in
this form, meaning the claimant would not
have the same restrictions if he stopped
alcohol/substance
abuse.
The
undersigned
gives great weight to the treatment records
from the VA, which document that the
claimant is prone to recurrent episodes of
depression and psychotic symptoms when using
and abusing drugs and alcohol. When the
claimant was discharged on October 1, 2010,
he had been clean and sober since late June.
He had a bright mood and affect at that
time. (Exhibit 7F).
When the claimant saw
Dr. Ewing in follow up visits, he reported
symptom
improvement
with
medication
compliance and abstinence from drugs and
alcohol. (Exhibits 7F and 9F).
On October
3, 2011, it was noted that the claimant has
been staying off drugs and drinking for 6
months. He reported some symptom resolution
with his present regimen of psychiatric
medications with no reported problem with
side effects. (Exhibit 9F).
The claimant
had a home visit with a social worker on
November 17, 2011. The claimant said he was
still isolating himself, but was happy with
his family, and enjoying living in his
apartment. (Exhibit 10F). . . .
5. If the claimant stopped the substance
use, the remaining limitations would cause
more than a minimal impact on the claimant’s
ability to perform basic work activities;
therefore, the claimant would continue to
have a severe impairment or combination of
impairments. . . .
6. If the
use,
the
impairment
that meets
impairments
Subpart P,

claimant stopped the substance
claimant
would
not
have
an
or combination of impairments
or medically equals any of the
listed in 20 CFR Part 404,
Appendix 1 (20 CFR 404.1520(d)

15

and 416.920(d)).3
. . . In terms of the ”paragraph B”
criteria, the claimant would have mild
restriction in activities of daily living if
the substance use was stopped. The claimant
reported needing help with personal care,
does not prepare any meals or do any
household chores. The claimant said he goes
with someone to shop, and watches television
sometimes. (Exhibit 5E).
On October 4,
2010, Dr. Kovacs noted the claimant said he
was temporarily living with his mother. Dr.
Kovacs said the claimant was able to do the
activities
of
daily
living
without
assistance. He cannot drive far; and he gets
confused with the directions. His mother
does all the household chores, grocery
shopping, cooking, laundry and cleaning. His
hobbies include fishing. (Exhibit 5F).
At
the hearing, the claimant said that on a
typical
day,
he
gets
up,
takes
his
medication and prays. He lives by himself
currently; but his 3-year-old son lives with
him at times. He prepares his own meals and
does his laundry; but he sometimes receives
help from his mother and sister. He said
that sometimes he forgets, or just gets
frustrated doing these tasks.
In social functioning, the claimant would
have moderate difficulties if the substance
use was stopped. The claimant reported that
he goes to church. (Exhibit 5E).
The
claimant told Dr. Kovacs that his social
activities include weekly meetings and yard
work. The claimant also said he cannot stand
to be around a lot of people; and he hardly
3

The ALJ found that
section 1.00 of the
ha[d] not resulted in
defined in 1.00B2b.”
this or any finding
Therefore, the Court’s
impairments, including

Plaintiff’s osteoarthritis did not meet
Medical Listings because “the condition
an inability to ambulate effectively as
(Tr. 27).
Plaintiff does not challenge
related to his physical impairments.
analysis is limited to Plaintiff’s mental
his substance abuse disorders.

16

goes anywhere because of anxiety in public.
(Exhibit 5F).
With regard to concentration, persistence or
pace, the claimant would have moderate
difficulties
if
the
substance
use
was
stopped.
The
claimant
said
he
cannot
concentrate due to his PTSD. He said he was
experiencing nightmares and cannot sleep
well. He cannot drive far; and he gets
confused with the directions. He can count
his money, but cannot balance his checkbook.
(Exhibit 5F).
As for episodes of decompensation, the
claimant
would
experience
one
to
two
episodes of decompensation if the substance
use was stopped. . . .
(Tr. at 21-28).4

In addition, in assessing Plaintiff’s RFC,

the ALJ made the following relevant findings:
7. If the claimant stopped the substance
use, the claimant would have the residual
functional capacity to perform a reduced
range of medium work as defined in 20 CFR
404.1567(c) and 416.967(c), in function by
function terms (SSRs 83-10 and 06-8p), with
certain
non-exertional
restrictions
associated with that level of exertion. The
claimant’s specific physical capabilities
during the period of adjudication have been
the ability to frequently stoop, kneel,
crouch, crawl, balance and climb ramps/
stairs;
and
occasionally
climb
ropes,
ladders and scaffolding. The claimant’s
specific mental capabilities during the
period of adjudication have been the ability
to perform simple, routine, repetitive tasks
4

The ALJ also considered Plaintiff’s headaches, back pain,
hyperlipidemia, obesity, and dental caries and found them to be
non-severe.
(Tr. 26-27).
As noted above, Plaintiff does not
challenge this or any finding related to his physical
impairments.

17

(SRRTs); have brief superficial contact with
the public; work in close proximity to
others,
but
would
need
to
work
independently;
maintain
attention
and
concentration for 2 hours at a time before
needing to take a regularly scheduled break
or meal; and adapt to minimal changes in the
work setting.
. . . At the hearing, the claimant testified
that he goes to classes at the VA 3 times a
week in Biloxi for anxiety, suicide and pain
management.
He
reported
having
transportation issues sometimes; and the
records reflect that he was a no-show to
multiple appointments. (Exhibits 1F, 2F, 7F
and 9F).
The VA records reflect no
complaints of suicidal ideation during the
relevant period of time, although he did
relate a suicide attempt while in the
military in 1998 by taking 9 Motrin.
(Exhibits 1F, 2F, 7F, 9F, and 10F). . . .
The claimant has MDD and PTSD which results
in the limitation of his ability to perform
SRRTs; have brief superficial contact with
the public; work in close proximity to
others,
but
would
need
to
work
independently;
maintain
attention
and
concentration for 2 hours at a time before
needing to take a regularly scheduled break
or meal; and adapt to minimal changes in the
work setting.
The claimant’s drug tests at the VA since he
was discharged for his substance abuse
treatment have been negative. (Exhibits 2F
and 7F). Although the claimant has had some
compliance
problems
with
taking
his
medications,
his
symptoms
are
reduced
significantly while on his medications as
prescribed. . . .
On September 8, 2010, Donald E. Hinton, PhD,
a State agency psychological consultant,
completed a Psychiatric Review Technique
Form (PRTF), and found that the claimant has

18

the medically determinable impairments of
depressive disorder, PTSD and history of
substance abuse.
Dr. Hinton found that the
claimant had the following limitations: mild
restriction of activities of daily living;
moderate difficulties in maintaining social
functioning;
moderate
difficulties
in
maintaining concentration, persistence or
pace; and no episodes of decompensation.
Dr. Hinton noted the claimant has been
treated at the VA since August 2009, for
cocaine dependence, cannabis abuse, alcohol
dependence and PTSD. The claimant attended
inpatient treatment for alcohol and drug
abuse in July 2010. He returned home for a
week, and would be returning for inpatient
PTSD treatment for another month starting
September 9, 2010. Dr. Hinton noted the
claimant’s
August
11,
2009
inpatient
psychological assessment included diagnoses
of PTSD; depressive disorder, NOS; cannabis
dependence, early full remission; cocaine
dependence,
early
full
remission;
and
alcohol dependence, early full remission.
Dr. Hinton stated that with abstinence from
substance abuse and with treatment for PTSD,
significant stability would be expected.
(Exhibit 3F).
Dr. Hinton also completed a Mental Residual
Functional Capacity Assessment, and found
the claimant had the following moderate
limitations: in the ability to understand
and remember detailed instructions; in the
ability to carry out detailed instructions;
the
ability
to
maintain
attention
and
concentration for extended periods; and in
the ability to interact appropriately with
the general public. Dr. Hinton opined that
the claimant has the ability to understand,
remember and carry out very short and simple
instructions; and maintain attention and
concentration for 2 hour intervals. Dr.
Hinton also stated that routine contact with
the general public should not be a usual job
assignment. (Exhibit 4F).

19

When
the
claimant
saw
Dr.
Martin
on
September 13, 2010, the claimant expressed
interest
in
returning
to
school
for
additional training after he becomes more in
control of his mood and PTSD symptoms. . . .
Based on the evaluation, Dr. Martin said the
claimant
was
experiencing
a
number
of
symptoms related to substance dependence,
PTSD, and depression. The symptoms cause
clinically
significant
distress
and
impairment in his social and occupational
functioning as well as decrease in his
overall quality of life.
(Exhibit 2F). . .
.
The claimant saw Dr. Ewing on July 28, 2011,
and reported overall better mood, less
anxiety and more continuous restorative
sleep on Quetiapine 300 mg. He reported no
side effects to medications. . . .
In terms of the claimant’s alleged MDD and
PTSD,
the
record
documents
that
the
claimant’s symptoms have been minimized with
compliance with treatment and abstinence
from drugs and alcohol. . . .
As noted above, the MRFC Questionnaire
completed by Dr. Ewing and Mr. King shows
that his substance abuse history is material
to the issue of disability.
(Exhibit 8F).
Doctor Hinton stated that with abstinence
from substance use and with treatment for
PTSD,
significant
stability
would
be
expected. (Exhibit 3F).
This statement
appears to be consistent with the claimant’s
recent
treatment
records,
as
discussed
above. Additionally, the claimant’s prior
work history demonstrates that he has the
ability to perform unskilled work. The
undersigned finds that he is capable of
performing SRRTs; having brief superficial
contact with the public; working in close
proximity to others, but would need to work
independently;
maintaining
attention
and
concentration for 2 hours at a time before
needing to take a regularly scheduled break

20

or meal; and adapting to minimal changes in
the work setting. . . .
As for the opinion evidence, . . . [w]ith
regard to the claimant’s mental impairments
without drug and alcohol abuse, great weight
is also given to the findings and opinions
of Dr. Hinton in Exhibits 3F and 4F. The
undersigned used the ratings assigned by Dr.
Hinton in the PRFT to determine the mental
residual functional capacity if the claimant
stopped substance use, as Dr. Hinton stated
that with abstinence from substance use and
with
treatment
for
PTSD,
significant
stability would be expected. . . . The
limitations assigned by Dr. Hinton in the
Mental
Residual
Functional
Capacity
Assessment in Exhibit 4F are generally
consistent
with
the
mental
residual
functional capacity as set forth above.
Great weight is also given to Dr. Ewing’s
responses in the MRFC Questionnaire in
Exhibit
8F,
which
indicates
that
the
claimant’s drug and/or alcohol abuse is
material, so it is consistent with this
decision. The undersigned also notes that
with regard to medication side effects, Dr.
Ewing
noted
the
claimant
complains
of
headaches, sweating, easily upset, anger
without reason, nervous and cannot perform
simple tasks. (Exhibit 8F).
However, the
treatment records do not report consistent
complaints
of
medication
side
effects.
(Exhibits 2F, 7F and 9F).
The undersigned
also notes that on February 24, 2011, Dr.
Ewing also noted on Axis IV that the
claimant
was
disabled.
(Exhibit
7F).
According to the DSM-IV, Axis IV is for, “.
. . reporting psychosocial and environmental
stressors that may affect the diagnosis,
treatment
and
prognosis
of
mental
disorders.”
Social Security Ruling 96-2p
and 96-5p indicate that treating physician
opinions
on
issues
reserved
to
the
Commissioner of Social Security are never
entitled to controlling weight or special

21

significance. Since Dr. Ewing’s diagnosis in
Exhibit 7F concerns an issue (whether the
claimant
is
disabled)
reserved
to
the
Commissioner, it cannot be given controlling
weight.
The record as a whole reflects that the
claimant is capable of performing medium
work as set forth above, and that he was not
disabled for any 12 month period. There is
little to no objective support for the
claimant’s assertion that his impairments
are of disabling severity if substance use
stopped.
(Tr. 29-39).

The Court now considers the foregoing in light of

the record in this case and the issue on appeal.
1.

Issue
Whether the ALJ erred in not giving
“controlling weight” to the opinions
of Plaintiff’s treating psychiatrist?

Plaintiff
“controlling

argues
weight”

that
to

the
the

ALJ

erred

opinions

of

in

not

his

giving
treating

psychiatrist, Dr. Douglas Ewing, and in failing to articulate
the reasons that she rejected Dr. Ewing’s opinions.
2, 4).

(Doc. 13 at

The Commissioner counters that the ALJ adopted most of

Dr. Ewing’s opinions and assigned them the “greatest weight” and
that, to the extent that the ALJ assigned less weight to any of
Dr. Ewing’s opinions, she articulated her reasons for doing so.
(Doc. 15 at 2).

Having carefully reviewed the record in this

case, the Court finds that the ALJ gave appropriate weight to
Dr.

Ewing’s

opinions

and

that

22

the

ALJ’s

conclusion

that

Plaintiff is not disabled is supported by substantial evidence.
As a preliminary matter, the undersigned notes that the
applicable regulations provide that, if the ALJ determines that
a claimant is disabled, but also makes a finding that substance
abuse

is

involved,

claimant’s]

drug

the

ALJ

addiction

“must

or

determine

alcoholism

is

whether
a

contributing

factor material to the determination of disability.”
§§ 404.1535(a), 416.935(a).

The key

whether

still

the

claimant

would

stopped using drugs or alcohol.
416.935(b)(1).
physical

and

disability
use.
would

20 C.F.R.

factor in this inquiry is

qualify

as

disabled

if

he

20 C.F.R. §§ 404.1535(b)(1),

The ALJ must evaluate which of the claimant’s
mental

limitations

determination

would

that

remain

supported
absent

longer

be

disabled

if

he

the

drug

20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2).
no

[the

stopped

original

or

alcohol

If a claimant

using

drugs

or

alcohol, then the claimant’s substance abuse is considered to be
a “contributing factor material to the determination of [his]
disability,” and he has therefore failed to meet his burden and
prove

that

he

is

disabled.

20

C.F.R.

§§

404.1535(b)(2)(i),

416.935(b)(2)(i); 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J); See
also Watson v. Colvin, 2013 WL 757626, *2 (M.D. Ala. Feb. 27,
2013)(“[a] claimant ‘shall not be considered to be disabled for
purposes of this subchapter if alcoholism or drug addition would
(but for this subparagraph) be a contributing factor material to

23

the

Commissioner’s

determination

that

the

individual

is

disabled.’”)
In this case, the ALJ followed the applicable regulations
and

first

determined,

after

a

review

of

all

the

evidence,

including the medical records, that Plaintiff is disabled, and
that

his

alcohol/substance

abuse

is

material to the disability finding.
remaining

limitations

that

Plaintiff

a

contributing

factor

The ALJ also discussed the
would

experience

if

the

alcohol/substance abuse was not present, formulated Plaintiff’s
RFC,

and

concluded

that

there

are

jobs

in

the

economy

that

Plaintiff could perform if his alcohol/substance abuse ceased.
In
finding
factor

his

brief,

that

his

material

Plaintiff

does

alcohol/substance

to

the

ALJ’s

not

challenge

abuse

disability

is

a

the

ALJ’s

contributing

finding.

Instead,

Plaintiff has identified one portion of Dr. Ewing’s opinions
that he contends the ALJ should have afforded greater weight,
i.e., Dr. Ewing’s opinions in the Mental RFC Assessment form
that dated July 28, 2011 that “Plaintiff has multiple marked
limitations including marked restriction of activities of daily
living,

marked

difficulty

in

maintaining

social

functioning,

frequent estimated deficiencies in concentration, persistence or
pace, and frequent expected episodes of decompensation.”
13 at 4; Tr. 657-58).

(Doc.

Plaintiff argues that the ALJ should have

afforded these opinions of Dr. Ewing “controlling weight” and

24

that the ALJ erred in doing so.

(Doc. 13 at 4).

Plaintiff’s

argument is misplaced.
Generally speaking, “[i]f a treating physician’s opinion on
the nature and severity of a claimant’s impairments is wellsupported

by

medically

acceptable

clinical

and

laboratory

diagnostic techniques, and is not inconsistent with the other
substantial

evidence

in

controlling weight.” 5

the

record,

the

ALJ

must

give

Roth v. Astrue, 249 F. Appx. 167, 168

(11th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(2)).
words,

“[i]f

supported
evidence
weight;

a

and
in

treating
not

the

i.e.,

source’s

inconsistent

case

it

it

must

record,
be

medical

with
it

the

must

adopted.

.

.

is

well-

other

substantial

given

controlling

be

.

opinion

In other

A

finding

that

a

treating source’s medical opinion is not entitled to controlling
weight does not mean that the opinion is rejected.

It may still

be entitled to deference and be adopted by the adjudicator.”
SSR 96–2P, 1996 SSR LEXIS 9 at *2, 1996 WL 374188 at *1.
“If the treating physician’s opinion is not entitled to
controlling
treating

weight,

physician

we
must

have
be

held

given

that

the

substantial

testimony
or

a

considerable

weight unless good cause is shown to the contrary.”

5

of

Roth, 249

“Controlling weight” is defined as a medical opinion from a
treating source that must be adopted. See SSR 96–2P, 1996 SSR
LEXIS 9, *3, 1996 WL 374188, *1 (1996).

25

F.

Appx.

at

168

(citations

and

internal

quotation

marks

omitted); see also Broughton v. Heckler, 776 F.2d 960, 961 (11th
Cir. 1985) (“An administrative law judge must accord substantial
or considerable weight to the opinion of a claimant’s treating
physician
(citations

unless

good

cause

and

internal

is

shown

quotation

to

marks

the

contrary.”)

omitted).

“The

requisite ‘good cause’ for discounting a treating physician’s
opinion may exist where the opinion is not supported by the
evidence, or where the evidence supports a contrary finding.”
Hogan

v.

Astrue,

2012

U.S.

3155570, *3 (M.D. Ala. 2012).

Dist.

LEXIS

108512,

*8,

2012

WL

“Good cause may also exist where

a doctor’s opinions are merely conclusory, inconsistent with the
doctor’s medical records, or unsupported by objective medical
evidence.”

Id.

“[T]he weight afforded a treating doctor’s

opinion must be specified along with ‘any reason for giving it
no weight, and failure to do so is reversible error.’”

Williams

v. Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009); see also Phillips v.

Barnhart, 357 F.3d 1232,

1241 (11th Cir. 2004) (“When electing to disregard the opinion
of a treating physician, the ALJ must clearly articulate [his or
her] reasons.”).
The record in this case shows that the ALJ actually adopted
Dr. Ewing’s opinions related to Plaintiff’s marked limitations
in activities of daily living and social functioning, frequent

26

deficiencies in concentration, persistence or pace and expected
episodes of decompensation and gave them the “greatest weight,”
concluding, based on Dr. Ewing’s opinions, that Plaintiff met
the requirements of Listings 12.04, 12.06, and 12.09.
22, 25, 39).

(Tr. 21-

Plaintiff argues, however, that the opinions were

entitled to “controlling weight,” as opposed to the “greatest
weight.”
regardless
“greatest
opinions.

This is a distinction without a difference because
of

whether

weight”

or

the

ALJ

assigned

“controlling

the

weight,”

he

opinions

the

adopted

the

Thus, there is no error, and Plaintiff’s claim is

without merit.6
Furthermore, Plaintiff overlooks the very significant fact
that in the same Mental RFC Assessment form, Dr. Ewing opined
that Plaintiff’s alcohol/substance abuse were “material” to the
functional restrictions listed in the form and that Plaintiff
would not have had the same restrictions listed in the form in
the absence of alcohol/substance abuse. 7

(Id. at 658).

The ALJ

6

Even assuming error, Plaintiff has shown no prejudice resulting
from the ALJ’s assignment of one weight over the other; thus, it
is harmless.
See Battle v. Astrue, 243 Fed. Appx. 514, 522
(11th Cir. 2007) (unpublished) (errors which do not prejudice
the plaintiff are harmless); Wright v. Barnhart, 153 Fed. Appx.
678, 684 (11th Cir. 2005) (errors which would not change the
disability determination are harmless).

7

On the form, Dr. Ewing was expressly asked, “[d]o you feel that
alcohol/substance abuse is ‘immaterial’ to the functional
limitations listed in this form (i.e. the patient would still
have the same restrictions irrespective of any alcohol/substance
27

adopted

that

opinion

of

Dr.

Ewing

as

well

and

gave

it

the

“greatest weight,” concluding on that basis that Plaintiff was
not disabled. As noted supra, Plaintiff has not challenged this
finding,

which

Plaintiff

is

not

discontinued.
regarding

was

central

disabled

Indeed,

the

in

to
if

the
his

ALJ’s

alcohol/substance

addition

materiality

of

determination

to

Dr.

Plaintiff’s

that

abuse

Ewing’s

is

opinion

alcohol/substance

abuse, the ALJ also relied upon the findings of Dr. Hinton,
Ph.D.,

in

determining

Plaintiff’s

RFC

in

the

absence

of

alcohol/substance abuse. (Id. at 31, 38).
Last,

the

Court

notes

that

Plaintiff

makes

a

general

statement in his brief that, “[t]he ALJ reversibly erred in
giving little weight to the opinion of the Plaintiff’s treating
physicians.”
Ewing

(Doc. 13 at 2).

discussed

above

(to

Other than the opinions of Dr.

which

the

ALJ

gave

the

“greatest

weight”), Plaintiff fails to specify the opinion[s] of any of
his

other

treating

physicians

to

which

he

is

referring.

Therefore, any such argument by Plaintiff is waived.8

See Access

abuse)?”
Dr. Ewing clearly opined that the alcohol/substance
abuse was material. (Tr. 658).
8

Although all further assignments of error are waived, for
purposes of clarity, the Court notes that the ALJ declined to
give controlling weight to Dr. Ewing’s diagnosis in his
treatment notes dated February 24, 2011, under “Axis IV,” that
Plaintiff was “disabled.”
(Tr. 434). Any suggestion that the
ALJ erred in that regard would fail, as the law is clear that a
conclusion as to whether an individual is disabled or has the
28

Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004) (“the law is by now well settled in this Circuit that
a legal claim or argument that has not been briefed before the
court

is

deemed

abandoned

and

its

merits

will

not

be

addressed.”).
V.
For

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be AFFIRMED.
DONE this 25th day of September, 2014.

ability to work is a legal rather than medical opinion and “is
not the type of ‘medical opinion’ to which the Commissioner
gives controlling weight.”
Williams, 2009 WL 413541 at *2
(citations omitted); see also SSR 96–5p, 1996 SSR LEXIS 2, *1,
1996 WL 374183, at * 1–2 (July 2, 1996) (a physician’s opinion
on an issue reserved to the Commissioner of Social Security,
such as whether an individual is disabled, is never entitled to
controlling weight or special significance).
Likewise, the Court notes that the ALJ discounted Dr.
Ewing’s statement on the Mental RFC Assessment form that
Plaintiff “complains” of medication side effects.
(Tr. 658).
Any suggestion of error related to that determination would also
fail given that the statement is merely a notation of
Plaintiff’s subjective complaints on that date, not an “opinion”
by Dr. Ewing.
In any event, the notation is inconsistent with
Plaintiff’s treatment records, which do not reflect consistent
complaints by Plaintiff regarding any medication side effects.
(Id. at 33, 39, 417, 433, 450, 464, 679, 716).
29

/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

30