Bolar v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER that the Secretary's decision be AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Bert W. Milling, Jr on 8/27/2015. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEHEN L. BOLAR,

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

CIVIL ACTION 15-0010-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling denying a
claim for disability insurance benefits (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 judgment in accordance with 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73 (see Doc. 19).
August 24, 2015.

Oral argument was heard on

After considering the administrative record,

the memoranda of the parties, and oral argument, 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

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Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial

evidence 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
forty-three years old, had completed a high school education
(Tr. 57), and had previous work experience as a chipper/grinder,
tank tester, sandblaster, and shipfitter (Tr. 70).

Plaintiff

alleges disability due to Post-Traumatic Stress Disorder,
degenerative joint disease in the hip and ankle, poly-substance
abuse, and sleep apnea (Doc. 13 Fact Sheet).
The Plaintiff applied for disability benefits on December
27, 2011, alleging his disability began on October 18, 2008 (Tr.
20, 147-50).

An Administrative Law Judge (ALJ) denied benefits,

determining that Bolar was capable of performing specific light
work jobs (Tr. 20-29).

Plaintiff requested review of the

hearing decision (Tr. 15-16), but the Appeals Council denied it
(Tr. 1-7).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Bolar alleges

that the ALJ failed to properly consider (1) the opinions and

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conclusions of his treating physician and (2) the Veteran
Administration’s finding that he was disabled (Doc. 13).
Defendant has responded to—and denies—these claims (Doc. 16).
The relevant evidence of record follows.1
In discussing Bolar’s severe impairments, the ALJ found as
follows:
In 2009 and 2010, the claimant was treated
at USA Department of Orthopaedics for
chronic foot pain, and talus spurring with
arthritic changes/exostosis evidenced by
computed tomography scans/x-rays. In March
of 2010, the claimant underwent right foot
partial excisions with calcaneus tarsal
tunnel release. Medications were prescribed
for the claimant (Exhibit 1F). From 2008 to
2012, the claimant received treatment from
Veterans Administration Gulf Coast Health
Care System/Mobile Veterans Administration
for ankle/foot/pelvic arthritis with joint
pain, cocaine abuse in remission, episodic
alcohol abuse, pelvic region discomfort, a
depressive disorder, a post-traumatic stress
disorder (PTSD), sleep disturbance, and an
explosive personality disorder (Exhibits 2F,
6F, 8F and 10F).
(Tr. 22).
On December 16, 2010, the Department of Veterans Affairs
(hereinafter DVA) determined that Plaintiff’s disability,
because of PTSD, would be increased to seventy percent—up from

1The Court notes that the transcript in this action numbers 960

pages (see Doc. 12). As such, the Court will focus on the evidence to
which the Parties point and will not summarize the balance of it.
However, the Court will record the ALJ’s medical evidence summary
regarding Bolar’s severe impairments, albeit brief.

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fifty percent—effective September 2, 2010 (Tr. 226; see
generally Tr. 226-38).
On April 4, 2011, Julie D. Teater, Doctor of Psychology
with the Biloxi VA Medical Center, completed a disability
questionnaire indicating that Bolar had PTSD and also had
suffered from cannabis, cocaine, and alcohol abuse, all in
remission (Tr. 339-42).

Plaintiff had experienced a traumatic

event in that he “witnessed or was confronted with an event that
involved actual or threatened death or serious injury” involving
intense fear, helplessness, or horror (Tr. 342); the traumatic
event, however, was not persistently re-experienced (Tr. 343).
Teater indicated that Bolar persistently avoided thoughts,
feelings or conversations associated with the trauma, avoided
activities, places or people that aroused recollections of it,
and experienced markedly diminished interest or participation in
significant activities.

The Doctor went on to find that, since

the trauma, Plaintiff had experienced difficulty falling or
staying asleep, irritability or outbursts of anger, difficulty
concentrating, and exaggerated startle response.

These problems

had lasted for more than one month but did not cause clinically
significant distress or impairment in social, occupational or
other important areas of functioning (Tr. 343-44).

Teater

indicated that Bolar suffered from depressed mood, anxiety, and
mood and motivation disturbances.

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The Doctor indicated that

Plaintiff experienced occupational and social impairment due to
mild or transient symptoms that decreased work efficiency and
his ability to perform occupational tasks, but only during
periods of significant stress (Tr. 346).

Though Dr. Teater

thought Bolar was capable of handling his own financial affairs,
Plaintiff insisted that he could not.

It was Dr. Teater’s

opinion that his PTSD and other disorders would not impact his
ability to work (Tr. 347).
On July 18, 2011, a letter from the DVA found that although
Bolar had “occupational and social impairment due to mild or
transient symptoms which decrease work efficiency and ability to
perform occupational tasks only during periods of significant
stress,” his PTSD did not impact his ability to perform light or
sedentary work (Tr. 222; see generally Tr. 221-23).

It was

determined however, that he was not competent to manage his
financial affairs (id.).

Plaintiff’s GAF was rated at 61.2

On November 2, 2011, Dr. Rickey L. Jones, M.Ed. and
Vocational Rehabilitation Counselor with the DVA, wrote the
following letter regarding Bolar:
The veteran was determined to be
infeasible for training leading to gainful

2A GAF score between 61 and 70 indicates “[s]ome symptoms OR

some difficulty in social, occupational, or school functioning,
but generally functioning pretty well, has some meaningful
interpersonal relationships.” See https://depts.washington.edu/
washinst/Resources/CGAS/GAF%20Index.htm

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employment under the Vocational
Rehabilitation and Employment Program,
Chapter 31. The severity of the veteran’s
service connected disabilities significantly
impairs his ability to function in a
training or occupational setting. He has a
combined disability rating of 70% for the
following SC conditions: Post Traumatic
Stress Disorder 70% and Tinnitus 10%. None
Service Connected Disabilities include:
Limitation of Extension, knee, Hypertensive
Vascular Disease, Hearing loss, and
Limitation of Motion, Ankle.
No Independent Living Needs were
identified.
(Tr. 458).

On that same date, Jones penned a letter indicating

that Bolar was not able to receive vocational rehabilitation and
employment services because it was “not reasonable to expect
[him] to be able to train for or get a suitable job at [that]
time” (Tr. 216).

More specifically, the letter indicated the

VA’s belief that Plaintiff could not “[s]ucceed in a program of
training or education and [g]et a job in an occupation that
matches [his] skills, talents, and interests” (Tr. 216).
On February 16, 2012, Dr. Henrietta T. Kovacs, General
Practitioner and Internist, examined Plaintiff at the request of
the Social Security Administration; by way of history, she
reported that he “was serving in 1991 at the Desert Storm/Desert
Shield in artillery.

He stayed in the Army for one year and

nine months between 1990 and 1991.

He developed post traumatic

stress disorder after returning from Oklahoma” (Tr. 461; see

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generally Tr. 461-67, 684-87).

Kovacs’s physical exam revealed

mild range of motion (hereinafter ROM) limitations in the
cervical spine, right hip, and right ankle; Plaintiff had no ROM
limitations in his dorsolumbar spine, shoulders, elbows,
forearms, wrists, hands, or fingers.
with normal gait.

He could heel and toe walk

Bolar could not do a full squat because of

his ankle; straight leg-raising was negative at eighty degrees
bilaterally.

Her impression follows:

(1) Post traumatic stress

disorder per attached medical records; (2) chronic right hip
pain with mild ROM limitation; (3) chronic right ankle pain with
ROM limitation; (4) chronic intermittent right sided low back
pain; (5) history of dyspnea on exertion; (6) history of
hypercholesterolemia; (7) tobacco abuse; and (8) recovering
alcoholic and drug addict.
On November 26, 2012, Dr. D.M.G. Ewing took forty-five
minutes to examine Bolar, a psychiatric outpatient taking
Amitriptyline (an antidepressant) and Seroquel (Tr. 691-95).
His past medical history included the following:

low back pain;

ankle/foot pain; cocaine abuse, cannabis dependence, and alcohol
dependence, all in remission; hip and ankle arthralgia;
traumatic arthropathy; aggression, and PTSD.

Bolar’s service-

connected disability was seventy percent due to PTSD and
Tinnitus.

Plaintiff and his wife appeared without an

appointment, saying that he had disability forms he needed

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completed.

Bolar reported that he had been taking his

medications and they kept him calmer and helped him sleep tento-twelve hours most nights; he denied sedation, hangover, or
other side effects from the drugs.

Plaintiff’s wife confirmed

his “mostly pleasant state of mind,” with no significant
irritability, melancholy, and anxiety (Tr. 692).

He denied

hopelessness, persistent morbid thoughts, and alcohol or illicit
drug use; he reported his mood as “Good...Great...” (Tr. 693).
An alcohol-screening test was negative (Tr. 695).

Ewing noted

that he was oriented in four spheres, seemed to be of average
intelligence, and had logical thoughts with no evidence of
thought disorder or delusion; he was goal-directed, centered on
the disability form.

Ewing’s impression was that Bolar “[did]

not appear to be disabled from work based on history and mental
status exam—Vet reports robust SX reduction on current regimen”
(Tr. 693).

The Doctor estimated his GAF to be 50-55.3

was to see Ewing again in six months.

Plaintiff

That same date, Dr. Ewing

completed a Mental Residual Functional Capacity (hereinafter
RFC) Questionnaire indicating that Bolar had moderate
restrictions of activities of daily living and marked difficulty

3Error!
 Main
 Document
 Only.“A GAF score between 51-60 indicates

“moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social,
occupational or school functioning (e.g., few friends, conflicts with
peers or co-workers).” American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders, 32 (4th ed. 1994).

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in maintaining social functioning; no assessment was made as to
Plaintiff’s concentration, persistence or pace (Tr. 699-700).
Bolar was expected to have three episodes of decompensation in
work or work-like settings that would cause him to withdraw from
the situation or experience exacerbation of signs and symptoms
for a period of at least two weeks.

Ewing went on to say that

Plaintiff was moderately limited in his ability to do the
following:

understand, carry out, and remember instructions;

respond appropriately to supervision and co-workers; and perform
simple, repetitive tasks.

Bolar was markedly limited in

responding appropriately to customary work pressure.

The Doctor

stated that Plaintiff had had these limitations for at least one
year and that he frequently attended therapy; Plaintiff’s
medications caused drowsiness, light-headedness, and blurred
vision.

The form urged the reviewer to do the following:

“For

any ratings of moderate or greater, please explain basis of
limitation in sub-part 17 (COMMENTS);” Ewing did not avail
himself of this opportunity (Tr. 699).
On November 27, 2012, VA records show that Bolar attended a
therapy session with a Social Worker4 for PTSD and aggression; he
was oriented in four spheres, his thought processes were logical
and goal-directed, and his mood was pleasant and animated (Tr.

4This

Social Worker also signed off on Dr. Ewing’s Mental RFC
Questionnaire just discussed (see Tr. 68; cf. Tr. 700).

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688-90).

Insight and judgment were good; he was able to make

healthcare and financial decisions independently.
were listed:

Strengths

“Individual strengths, place to live, Educated,

Family/Peer Support, Good judgment coping skills, psychosocial
support, positive coping skills, future oriented, problem
solving ability, motivated/seeking help, positive social
support” (Tr. 689).

Weaknesses were listed:

“Psychosocial

stressors, income not adequate, medical problems, chronic
substance abuse, recent loss, anger/depression, risky behavior,
lack social support, expressed hopelessness, recent history of
divorce, recent drug/alcohol binge, unemployment, estranged from
family” (Tr. 689).

The Social Worker indicated Plaintiff had

low risk for suicide or homicide; he had continuing same family
issues but was “sporadic, at best, with obtaining treatment”
(Tr. 690).

This concludes all of the relevant medical evidence.5

Plaintiff's first claim is that the ALJ did not accord

proper legal weight to the opinions, diagnoses and medical
evidence of his physician, Dr. Ewing (Doc. 13, pp. 2-5).

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

5The Court notes that the records submitted to the Appeals
Council following the entry of the ALJ’s decision will not be
discussed herein as no claim has been made regarding that evidence
(see Tr. 701-956; cf. Doc. 13).

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opinion of any physician when the evidence supports a contrary
conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir.

1981);6 see also 20 C.F.R. § 404.1527 (2014).
The ALJ reported Dr. Ewing’s November 2012 findings as well
as his conclusions in the mental RFC questionnaire he completed
but found them internally inconsistent (Tr. 27).

The evidence

shows that the Doctor’s examination notes stated Plaintiff
characterized himself as doing “Good . . . Great” (Tr. 693); his
wife even confirmed his “mostly pleasant state of mind,” with no
significant irritability, melancholy, and anxiety (Tr. 692).
After a forty-five minute examination, Ewing found that Bolar
“[did] not appear to be disabled from work based on history and
mental status exam—Vet reports robust SX reduction on current
regimen” (Tr. 693).

Ewing indicated he did not need to see

Plaintiff again for six months.

Yet, that same date, the Doctor

completed a Mental RFC Questionnaire indicating that Bolar had
moderate restrictions of activities of daily living and marked
difficulty in maintaining social functioning; in addition,
Plaintiff was markedly limited in responding appropriately to
customary work pressure (Tr. 699-700).

Though encouraged to

explain these limitations, Ewing did not do so (Tr. 699).
The Court finds that Ewing’s notes are plainly inconsistent

6The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions
of the former Fifth Circuit rendered prior to October 1, 1981.

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with the conclusions listed in the RFC form.

The conclusions

are also inconsistent with Ewing’s report of Bolar’s description
of how he was doing,7 the report of Dr. Kovacs (Tr. 461-67), the
report of Psychologist Teater (Tr. 339-47), and other medical
evidence cited by the ALJ but not restated here (Tr. 26).

The

Court specifically notes that the ROM chart completed by Kovacs
does not demonstrate an inability to work (Tr. 466-47) while
Teater specifically found that Plaintiff’s impairments would not
prevent him from working (Tr. 347).8
As further support for Plaintiff’s argument that Dr.
Ewing’s conclusions were improperly dismissed, Bolar points out
that the Doctor repeatedly assigned GAF scores of 50 (Doc. 13,
p. 4) (citing Tr. 610, 620, 693).9

Plaintiff further questions

the ALJ’s characterization of his alcohol dependence, asserting
her speculation as to the extent of the effects (Doc. 13, p. 4).
The ALJ’s findings were as follows:
Moreover, medical records indicated the
claimant was abusing alcohol episodically
(e.g., see page 62 of Exhibit 2F and pages
17-18 of Exhibit 6F), which likely
exacerbated the claimant’s mental issues for

7The Court notes Plaintiff has not challenged the ALJ’s finding

that his own testimony was not credible (see Tr. 25).

8The Court notes that although Plaintiff points out Teater’s

finding that Bolar could not handle his own financial affairs (Doc.
13, p. 3), a more careful reading of the report shows that she thought
he was capable of handling his finances, but deferred to his
insistence that he could not (Tr. 346).

9The Court is aware of an earlier cite by Bolar showing eleven

more GAF scores ranging from thirty-five to fifty (Doc. 13, p. 3).

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a portion of the time he was receiving
treatment. Of note, medical records
reflected the claimant had global assessment
functioning (GAF) scores of 35-50,
indicating major to serious impairments.
However, the undersigned gives little weight
to these GAF scores, since they could have
been affected by the claimant’s alcohol
abuse. Notably, in August of 2012, it was
noted the claimant was stable on his medical
regimen (see page 21 of Exhibit 8F), which
established that the claimant’s mental
condition improved with treatment (Exhibits
2F, 6F, 8F and 10F).
(Tr. 26).

The Court notes VA records show, as alluded to by the

ALJ, that, on October 31, 2008, Plaintiff was positive for
ethanol, cocaine, and cannabinoids and the attending physician
stated that “Pt has a clear substance abuse problem.
also be an underlying PTSD problem.

There may

However, one would only be

able to make that Dx after some time of abstinence” (Tr. 484).
In her evaluation of April 4, 2011, Teater noted that Bolar “has
long history of substance abuse, unclear if it related to his
current symptoms” (Tr. 345).

These records provide support for

the ALJ’s findings notwithstanding Plaintiff’s assertions
otherwise.

Plaintiff’s claim that the ALJ did not properly

consider the conclusions of his treating physician are without
merit.
Plaintiff also claims that the ALJ failed to properly
consider the VA’s finding that he was disabled (Doc. 13, pp. 57).

While acknowledging that the ALJ was not bound by the VA’s

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findings, Bolar asserts that the ALJ “failed to consider the VA
rating decision altogether” (Doc. 13, p. 6).

Plaintiff’s

argument focuses on the VA report as well as the conclusions of
Rehabilitation Counselor Jones.
Social Security regulations state as follows:
A decision by any nongovernmental
agency or any other governmental agency
about whether you are disabled or blind is
based on its rules and is not our decision
about whether you are disabled or blind. We
must make a disability or blindness
determination based on social security law.
Therefore, a determination made by another
agency that you are disabled or blind is not
binding on us.
20 C.F.R. § 404.1504 (2014).

The Eleventh Circuit Court of

Appeals has acknowledged this principle, though finding that
another’s agency’s findings of disability are entitled to great
weight.

Bloodsworth v. Heckler, 703 F.2d 1233, 1241 (1983).

The ALJ, in her determination, summarized the disability
finding made known by Jones and found the following:
However, Dr. Jones did not determine the
claimant was totally unable to work any type
of job. In addition, Dr. Jones noted the
claimant had no independent living needs,
which indicated the claimant was able to
function on some level. Hence, the
undersigned assigns little weight to Dr.
Jones’ opinions, since they seemed
inconsistent with medical records from the
Veterans Administration, which evidenced the

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claimant was able to mentally and physically
function at a high level.
(Doc. 27).
The record shows that the VA, on December 16, 2010, issued
a decision that Plaintiff was seventy percent disabled (Tr. 22638).

That report had no author, but referenced Counselor Jones

as the contact person for any questions regarding it (Tr. 229).
The record further shows that, in a letter dated November 2,
2011, Jones indicated that Bolar did not qualify for vocational
rehabilitation and employment services because he would not
successfully complete the education or get a job matching his
skills (Tr. 216).
The ALJ’s determination clearly discounts the conclusions
in Jones’s letter.

The Court further finds that the ALJ’s

conclusion applies equally to the VA’s finding of seventy
percent disability as she specifically references that finding
in her discussion.10

The ALJ rejected those conclusions as

“inconsistent with medical records from the [VA]” (Tr. 27).

The

Court finds substantial support for the ALJ’s conclusion.
Plaintiff has raised two different claims in bringing this
action.

Both are without merit.

Upon consideration of the

entire record, the Court finds "such relevant evidence as a

10The Court further notes that the ALJ rejected Jones’s opinions—

not opinion—lending more credence to this finding.

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reasonable mind might accept as adequate to support a
conclusion."

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

separate Order.
DONE this 27th day of August, 2015.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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