Miller v. Colvin et al

Filing 26

Order stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, andsupplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 8/2/2016. Copies to parties (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSHUA R. MILLER,

*
*
*
*
*
*
*
*
*
*
*

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

CIVIL ACTION NO. 15-00323-B

ORDER
Plaintiff Joshua R. Miller (hereinafter “Plaintiff”) seeks
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.
consented

to

have

the

proceedings in this case.

On June 13, 2016, the parties

undersigned
(Doc. 23).

conduct

any

and

all

Thus, the action was

referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.

Upon careful consideration

of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
AFFIRMED.

I.

Procedural History
Plaintiff filed his applications for benefits in December

2013.

(Tr. 258, 262).

Plaintiff alleged that he has been

disabled since May 11, 2011, based on “PTSD, TBI [traumatic
brain injury], neck, back, injuries, shoulder, migraines.”1

(Id.

at 287).
Plaintiff’s
request,

he

applications

was

granted

were

denied

and

timely

hearings

administrative

upon

before

Administrative Law Judge Katie H. Pierce (hereinafter “ALJ”) on
June

17,

2014,

and

October

14,

2012.

(Id.

at

37,

63).

Plaintiff attended both hearings with his counsel and provided
testimony

related

to

his

claims.

(Id.

at

39,

67).

Also

appearing and testifying at the second hearing was a vocational
expert (“VE”) and a medical expert (“ME”).
December

19,

2014,

the

ALJ

issued

an

finding that Plaintiff is not disabled.

(Id. at 75, 89).
unfavorable

On

decision

(Id. at 32).

The

Appeals Council denied Plaintiff’s request for review on June 3,
2015.

(Id. at 1).

Therefore, the ALJ’s decision dated December

19, 2014, became the final decision of the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.
1

remedies,

(Doc. 1).

Plaintiff

The parties

Plaintiff has raised no issue on appeal regarding the ALJ’s
findings related to any of his physical impairments. (Doc. 13).
Therefore, the Court’s discussion is limited to Plaintiff’s
mental impairments.

2

waived oral argument on June 13, 2016 (Doc. 22), 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.

Issues on Appeal
1. Whether the ALJ erred in rejecting the
opinion
of
one-time
examining
psychiatrist, Dr. Anita Nusbaum, M.D.,
while assigning great weight to the
opinions of non-examining psychological
experts, Dr. John Davis, Ph.D., and Dr.
Donald E. Hinton, Ph.D.?
2. Whether substantial evidence supports the
ALJ’s mental RFC assessment for a range
of
medium
work
with
the
stated
nonexertional restrictions?
3. Whether the ALJ erred in failing to find
Plaintiff’s
PTSD
to
be
a
severe
impairment?

III. Factual Background
Plaintiff was born on March 18, 1980, and was thirty-three
years of age at the time of his second administrative hearing on
October 14, 2014.

(Tr. 63, 282).

Plaintiff graduated from high

school and attended two years of college.

(Id. at 288).

While

in the military from 2006 to 2013, Plaintiff worked as a truck
driver.

(Id.

at

68).

Prior

to

serving

in

the

military,

Plaintiff worked as a truck driver and car salesman in 2001 and
as an iron worker rigger in 2000.

(Id. at 68-69).

At his hearing, Plaintiff testified that he was involved in
an

explosion

in

Afghanistan

in

3

2011

when

an

IED

exploded

underneath his truck.

(Id. at 51).

Plaintiff claims that as a

result of the explosion, he has the severe impairments of PTSD,
traumatic

brain

injury,

injuries

shoulder, and migraine headaches.
Plaintiff

testified

that

his

to

the

neck,

(Id. at 73).

“biggest

back,

and

At his hearing,

problem”

is

headaches,

which he has daily, and that he also has pain, problems with his
back,

and

trouble

concentrating.

(Id.

at

51-52,

71-72).

According to Plaintiff, he goes to the VA for mental health
treatment about once a month.

(Id. at 69).

On March 28, 2014,

Plaintiff reported that he was taking no medications for his
conditions.

(Id. at 316).

Plaintiff testified that he lives with his mother.
55).

(Id. at

In a Function Report dated January 27, 2014, Plaintiff

stated that he takes care of his mother (id. at 306); he has no
problems with personal care, nor does he need reminders for
personal care (id.); he has a pill planner to remind him to take
his medicine (id. at 307); he prepares his own meals (id.); he
does

laundry

and

small

chores

(id.);

he

goes

out

alone

and

drives 2 (id. at 308); and he shops and handles all of his own
finances

(id.).

Plaintiff

also

2

reported

that

he

avoids

At the hearing, Plaintiff testified that his drivers license is
currently suspended.
(Id. at 53, 71, 1030).
According to
Plaintiff, he has had three DUI’s; he last drank alcohol in
January of 2014; and he last used marijuana in March of 2014.
(Id. at 47-48).

4

authority figures and that he was released from the Army because
of problems getting along with people (id. at 311).
also

indicated

that

stress

makes

him

angry

Plaintiff

and

depressed.

(Id.).
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).

3

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

3

whether

substantial

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).
5

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
(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. 4

4

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
6

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since May 11,
2011,

the

alleged

onset

date,

and

that

he

has

the

severe

impairments of cervical spondylosis, degenerative joint disease
of the right shoulder, late effects of traumatic brain injury
vs. psychotic disorder including speech difficulties, headaches,
anxiety, attention deficit hyperactivity disorder, memory loss,
and alcohol dependence. 5
Plaintiff

does

not

(Tr. 21).

have

an

The ALJ further found that

impairment

or

combination

of

impairments that meets or medically equals any of the listed
impairments6 contained in 20 C.F.R. Part 404, Subpart P, Appendix

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
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)).
5

The ALJ found Plaintiff’s PTSD to be non-severe.

6

(Tr. 21-22).

The ALJ found that Plaintiff has only a “mild” restriction in
activities of daily living; “moderate” restrictions in social
7

1.

(Id. at 22).
The

ALJ

concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
medium

work,

with

the

following

nonexertional

restrictions:

Plaintiff “is able to understand to carry out ‘detailed but
involved’ 7 written or oral instructions involving a few concrete
variables

in

or

from

standardized

situations;

can

maintain

attention/concentration for up to 2 hours at a time; can never
have contact with the public and only occasional contact with
coworkers
changes

and

in

supervisors;

the

work

can

setting

occasionally
or

routine;

adapt
can

oriented work, but not production paced work.” 8

functioning and concentration, persistence,
episodes of decompensation. (Tr. 23-24).

or

to

minimal

perform

goal

(Id. at 24).

pace;

and

no

7

The Court notes that, at Plaintiff’s hearing, the ALJ posed a
hypothetical to the vocational expert describing an individual
who would be able to understand, to carry out “detailed but
uninvolved written or oral instructions” involving a few
concrete variables in or from standardized situations. (Tr. 90)
(emphasis added).
Yet, in her RFC assessment, the ALJ stated
that Plaintiff could perform work involving “detailed but
involved written or oral instructions. . . .”
(Id. at
24)(emphasis added).
Whether the ALJ’s use of the term
“involved,” as opposed to “uninvolved,” was a typographical
error is of no moment. The Court has determined that the ALJ’s
RFC assessment for detailed work (whether including “involved”
or “uninvolved” written and oral instructions) constitutes
error; however, for the reasons explained herein, that error is
harmless.

8

The ALJ also assigned certain exertional limitations that are
not at issue here. (Tr. 24).

8

The

ALJ

also

determined

that

while

Plaintiff’s

medically

determinable impairments could reasonably be expected to produce
the alleged symptoms, his statements concerning the intensity,
persistence and limiting effects of the alleged symptoms were
not entirely credible for the reasons explained in the decision.
(Id. at 25).
The ALJ found that Plaintiff is unable to perform his past
relevant work.

(Id. at 30).

However, utilizing the testimony

of a VE, the ALJ concluded that Plaintiff is able to perform
jobs such as “hand packager,” “kitchen helper,” and “poultry
farm

laborer”

unskilled.

all

of

(Id. at 31).

which

are

classified

as

medium

and

Thus, the ALJ concluded that Plaintiff

is not disabled. (Id. at 32).
The

Court

now

considers

the

foregoing

in

light

of

the

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

Issues

A. Whether the ALJ erred in rejecting the
opinion
of
one-time
examining
psychiatrist, Dr. Anita Nusbaum, M.D.,
while assigning great weight to the
opinions of non-examining psychological
experts, Dr. John Davis, Ph.D., and Dr.
Donald E. Hinton, Ph.D., and whether
substantial evidence supports the ALJ’s
mental RFC assessment for a range of
medium work with the stated nonexertional
restrictions?9
9

Because these two issues are so closely related, the Court
considers them together.

9

In

this

case,

Plaintiff

argues

that

the

ALJ

erred

in

rejecting the opinion of one-time examining psychiatrist, Dr.
Anita Nusbaum, M.D., in a Mental Disorders Questionnaire form
dated March 7, 2014, that Plaintiff has a “total occupational
and

social

“psychotic

impairment”

based

disorder.”

exclusively

on

1091-92;

Doc.

(Tr.

an

“unspecified”

13

at

12-13).

Plaintiff further argues that the ALJ erred in giving great
weight

to

the

psychologist,

Dr.

opinions

of

Donald

Hinton,

E.

non-examining
Ph.D.,

medical expert, Dr. John Davis, Ph.D.
1091-92; Doc. 13 at 10-13).

State

and

Agency

non-examining

(Tr. 75-78, 96, 104-09,

Plaintiff also argues that the ALJ

erred in finding that Plaintiff has the RFC to perform a range
of

medium

work,

including

work

involving

involved’ written or oral instructions.”

“‘detailed

but

(Doc. 13 at 2-6).

The Commissioner counters that the medical evidence does
not support Dr. Nusbaum’s opinion, and, to the contrary, that
Dr.

Nusbaum’s

opinion

is

inconsistent

with

the

substantial

medical evidence in the case.

Thus, her opinion was properly

discredited.

The Commissioner further argues

(Doc. 20 at 8-9).

that the ALJ properly credited the opinions of Dr. Hinton and
Dr.

Davis.

(Id.).

Finally,

the

Commissioner

argues

that

substantial evidence supports the ALJ’s RFC assessment in this
case.

10

Having

carefully

reviewed

the

record

in

this

case,

the

Court finds, for the reasons discussed herein, that: (1) the ALJ
had good cause to discredit the opinion of Dr. Nusbaum that
Plaintiff has a “total occupational and social impairment,” as
that opinion is inconsistent with the substantial evidence in
the case; (2) the ALJ properly assigned great weight to the
opinions of non-examining State Agency psychologist Dr. Hinton,
as

his

opinions

credible

did

examining

not

conflict

medical

with

source;

the

(3)

opinions

the

ALJ

of

erred

any
in

assigning great weight to the opinion of non-examining medical
expert

Dr.

limitations
Davis’

Davis
in

that

any

opinion

Plaintiff

functional

conflicts

has

area,

with

no

to

the

more

the

than

extent

opinion

of

“mild”

that

Dr.

examining

psychologist Dr. Starkey that Plaintiff is limited to simple
work; (4) the ALJ erred in assessing Plaintiff’s RFC for a range
of medium work involving “detailed but involved” written or oral
instructions,
substantial

as

that

evidence;

assessment
and

(5)

the

is

not

ALJ’s

supported

errors

are

by

the

harmless

because the substantial evidence in this case supports an RFC
assessment for simple work, and the vocational expert identified
unskilled work that the Plaintiff can perform.
Court

finds,

for

the

reasons

that

follow,

Therefore, the
that

Plaintiff’s

claims must fail.
As part of the disability determination process, the ALJ

11

is tasked with weighing the opinions and findings of treating,
examining,

and

non-examining

physicians.

In

reaching

a

decision, the ALJ must specify the weight given to different
medical opinions and the reasons for doing so.

See Winschel v.

Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
The failure to do so is reversible error.

See Williams v.

Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009).
When
ALJ

weighing

the

opinion

of

a

treating

physician,

the

must give the opinions “substantial weight,” unless good

cause exists for not doing so.

Costigan v. Commissioner, Soc.

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4
(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).

The opinion of “a

one-time examining physician — or psychologist,” on the other
hand,

is

physician.

not

entitled

to

the

same

deference

as

a

treating

Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,

2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160).

An ALJ is also “required to consider the

opinions of non-examining state agency medical and psychological
consultants because they ‘are highly qualified physicians and
psychologists who are also experts in Social Security disability
evaluation.’”

Milner v. Barnhart,

12

275 Fed. Appx. 947, 948

(11th

Cir.

2008)

404.1527(f)(2)(i)).
examining

(unpublished)
“The

sources

when

examining sources.”

ALJ

they

may
do

(citing
rely

not

on

20

C.F.R.

opinions

conflict

with

of

§
non-

those

of

Id. (citing Edwards v. Sullivan, 937 F.2d

580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining

physicians,

testimony

any

of

good

medical

cause

source

exists

when

it

to

is

discredit

contrary

to

the
or

unsupported by the evidence of record.

Phillips v. Barnhart,

357 F.3d 1232, 1240 (11th Cir. 2004).

“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.”

Hogan v. Astrue, 2012 U.S.

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”
764

F.2d

834,

835

(11th

Cir.

1985)

Sryock v. Heckler,

(per

curiam)

(citation

omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,

212

(11th

Cir.

2010)

(The

ALJ

may

reject

any

medical

opinion if the evidence supports a contrary finding.).
In the present case, the record shows that Plaintiff was
treated at the VA outpatient clinic from approximately January
2012 to August 2014, for various physical and mental health
issues, as well as for substance abuse.

13

(Tr. 367-947, 1071-

1230).

With respect to his mental health treatment, Plaintiff

was treated at the VA by psychiatrist, Dr. Seth Strauss, M.D.,
and

clinical

anxiety,

psychologist,

PTSD,

TBI,

Dr.

history

Christine
of

Aiken,

polysubstance

Ph.D.,

for

abuse,

and

cognitive deficit, 10 for which he was given outpatient counseling
and medication.

(Id. at 400-01, 412-13, 424-25, 438-39, 460-61,

477-84, 527-28, 550-56, 605, 675, 716-17, 742-43, 764-71, 78384, 794-95, 802, 822).

Plaintiff’s medical records reflect a

significant number of mental status examinations with largely
normal

findings,

Plaintiff

did

as

not

well

seek

as

periods

treatment

appointments and medication.

or

of
was

time

during

non-compliant

which
with

(Id. at 76, 483, 520, 527, 553,

578, 605, 635, 723, 795, 802-03, 1059, 1078, 1089, 1135, 1213,
1220, 1227, 1229).

At no time did Dr. Strauss or Dr. Aiken

assign any functional limitations to Plaintiff as a result of
his mental conditions.
One notable exception to Plaintiff’s otherwise conservative
10

Cognitive testing conducted on May 17, 2012, suggested a lack
of effort by Plaintiff, as opposed to actual cognitive deficit.
(Tr. 683-84).
The tester noted that on the easy subtests,
Plaintiff’s score was worse than what is typically seen in
persons institutionalized with dementia; yet, he scored much
better than such individuals on the hardest subtest.
(Id. at
684).
Subsequent cognitive testing conducted in January 2014
revealed problems in the areas of immediate and delayed memory
and attention; however, the tester noted that Plaintiff’s
episodes of dysfluencies (stuttering) were much improved and
that his prognosis was “fair-good” with consistent attendance at
therapy sessions. (Id. at 1160-61).

14

treatment history occurred on February 28, 2014, when Plaintiff
was admitted to an acute stabilization unit for treatment after
an episode described as a “brief psychotic disorder.”
1039,

1154).

Plaintiff’s

medical

records

indicate

(Id. at
that

he

became agitated while in the process of obtaining a compensation
and

pension

hospital.
Plaintiff

examination

and

was

taken

by

the

(Id. at 1039, 1080-81, 1152-55).
was

diagnosed

prescribed Zoloft.

with

PTSD

and

opioid

(Id. at 1039, 1151).

police

to

the

Upon admission,
dependency

and

He was discharged the

same weekend, on March 2, 2014, with instructions to follow up
with the VA.11

(Id.).

Three days later, on March 5, 2014, VA psychologist, Dr.
Jennifer

Jackson,

Psy.D.,

examined

Plaintiff

recent diagnosis of psychotic disorder.
indicate

that

Plaintiff

was

rambling

and

and

noted

his

Dr. Jackson’s notes
making

nonsensical

remarks during her examination and that she was “unclear as to
the reason for his current psychosis.”

(Id. at 1144, 1147-48).

Dr. Jackson opined that Plaintiff’s current psychosis resulted
in a “total occupational and social impairment.”

(Id. at 1144).

The following day, March 6, 2014, another VA physician, Dr.

11

The record shows that one day prior to his psychotic episode,
Plaintiff was seen at the VA by his treating psychologist, Dr.
Aiken, who expressly noted that Plaintiff participated in his
session and that “psychotic symptoms were not present.”
(Tr.
1155-56).

15

Neela Mani, M.D., examined Plaintiff for purposes of evaluating
his TBI, and her examination findings indicated that Plaintiff
was able to communicate by spoken and written language, that he
was able to comprehend spoken and written language, that he had
no

neurobehavioral

effects,

that

his

orientation

was

normal,

that his motor activity was normal, that his social interaction
was appropriate, that his judgment was normal, and that his
memory, concentration, and attention were normal.

(Id. at 1097,

1135-37).
Interestingly,

the

next

day,

March

7,

2014,

VA

psychiatrist, Dr. Anita Nusbaum, M.D., examined Plaintiff, 12 and
in her mental status examination findings, she noted looseness
of associations, rapid speech, and poor insight, judgment, and
impulse control, but no observable impairment in attention or
concentration.

(Id. at 1095).

Dr. Nusbaum diagnosed Plaintiff

with mild “resolved” TBI, resulting in no functional limitations
and no impact on his ability to work.

Dr. Nusbaum also opined

that Plaintiff had no diagnosable PTSD.
Dr.

Nusbaum

wherein

she

earlier

and

disorder”

completed
noted
opined

resulted

a

Mental

Plaintiff’s
that
in

Disorders
psychotic

Plaintiff’s
a

(Id. at 1090, 1096).

“total

12

Questionnaire
episode

unspecified

occupational

a

few

form
days

“psychotic
and

social

From a review of the record, it appears that this was the only
instance in which Plaintiff was seen by Dr. Nusbaum.

16

impairment.”
Plaintiff’s

(Id. at 1091-92).
unspecified

Dr. Nusbaum further opined that

psychotic

disorder

was

not

caused

by

military service but possibly was the result of “exposure to
illicit substances,” referencing his “post-military drug binge”
and his untruthfulness about his substance abuse.

(Id. at 1094-

96).
One week later, on March 14, 2014, Plaintiff was examined
at the request of the Agency by Dr. Kenneth Starkey, Psy.D.
(Id.

at

1029).

From

the

outset,

Dr.

Starkey

noted

that

Plaintiff smelled strongly of alcohol, although Plaintiff denied
any history of alcohol use problems. 13

(Id. at 1030).

Plaintiff

reported his “presenting problem” as “brief psychotic disorders”
because of PTSD and stated that he was also receiving treatment
for back and neck problems related to disc problems. 14
1030-31).

(Id. at

Plaintiff reported that he could manage all personal

care needs without assistance, that he could manage his money,

13

Dr. Starkey noted that Plaintiff’s medical records revealed
three prior DUI arrests and an arrest for public intoxication
resulting in a reduction in rank in the Army and that Plaintiff
had been required to attend a mandatory substance abuse
treatment program while in the Army. (Tr. 1030).

14

Plaintiff reported taking Alprazolam (for anxiety), Baclofen (a
muscle relaxer), Cetirizine (an antihistamine), Divalproex (for
migraines),
Sulindac
(an
anti-inflammatory),
Sumatriptan
Succinate (for migraines), Tramadol (for pain), and Trazodone
(an antidepressant).
(Tr. 1030).
Plaintiff reported that his
medications were providing some relief of symptoms, and he
denied having any undesirable side effects. (Id.).

17

prepare simple meals, shop, use a telephone, and meet his basic
transportation needs (although his license was suspended for a
DUI arrest in 2013).

(Id.).

Plaintiff reported receiving an

honorable discharge from the Army.15
Dr.

Starkey’s

mental

status

(Id.).
examination

revealed

that

Plaintiff had poor hygiene, bloodshot eyes, and that he smelled
strongly of alcohol; Plaintiff’s mood was irritable, and his
motivation for completing the examination tasks was marginal; he
was ambulatory without assistance; he was alert and oriented to
person, place, time, day, date and purpose of the meeting; he
was able to focus and sustain attention

with no significant

distraction; he accurately completed serial 3s and simple math
problems and spelled “WORLD” backwards; his speech was clear and
coherent and appropriate; his thinking was rational, with no
deficits in reasoning or judgment, no delusional thoughts or
paranoia, no tangential thinking, flight of ideas, or loosening
of associations, and no anxiety; his estimated intelligence was
average;

he

attention,
impaired;

had

an

although
and

he

adequate
his
had

ability

short
accurate

term

to

focus

memory

recall,

and

sustain

appeared

adequate

mildly

fund

of

knowledge, and adequate insight and judgment. (Id.)
15

The record indicates that Plaintiff was forced to leave the
Army after misconduct involving alcohol abuse and a DUI arrest
but that he received an honorable discharge.
(Tr. 100, 120102).

18

Tests conducted on his intellectual functioning revealed a
Full

Scale

IQ

intellectual

score

of

93,

functioning;

reflecting

and

testing

an

average

showed

range

no

clinically

significant deficits for short term or long term memory.
at

1032-36).

Plaintiff’s

mood

assessment

was

causing Dr. Starkey to question its validity.

of

(Id.

inconsistent,

For example, Dr.

Starkey noted that Plaintiff reported symptoms of PTSD but did
not

report

Plaintiff’s
dressed,

any

symptoms

reported

eating,

of

daily

watching

depression.

activities
television,

(Id.

consisted

at
of

listening

1036).
getting

to

music,

washing dishes, washing clothes, watching the dog, going to the
store, going to the doctor, and going to church.

(Id.).

Dr. Starkey diagnosed Plaintiff with Alcohol Use Disorder,
Rule out PTSD mild. 16

(Id.).

He listed Plaintiff’s

prognosis

as “appears guarded” but unable to accurately assess because of
Plaintiff’s

impaired

motivation/lack

of

condition

(alcohol)

effort/cooperation.

(Id.

and
at

“marginal”
1037).

Dr.

Starkey opined that Plaintiff’s symptoms could improve with more
effective treatment of alcohol use problems.
noted

that

testing

did

not

confirm

(Id.).
any

He also

diagnosable

neurocognitive disorder and opined that Plaintiff’s ability to
16

Dr. Starkey opined that it was impossible to evaluate
Plaintiff’s
PTSD
because
of
Plaintiff
giving
misleading
information during the evaluation regarding his drinking. (Tr.
1037).

19

understand, remember and carry out simple/concrete instructions
appears “good;” that his ability to work independently appears
adequate especially for simple tasks; and that his ability to
work with others (supervisors, coworkers, public) and to deal
with

work

pressures

appears

marginal

but

treatment of his alcohol use problems.
The

following

week,

on

March

could

improve

with

(Id.).
24,

2014,

State

Agency

psychologist, Dr. Donald E. Hinton, Ph.D., reviewed Plaintiff’s
records

and

assessment,

completed
Dr.

a

Hinton

Mental

RFC

opined

Assessment.

that

In

Plaintiff

is

the
not

significantly limited in his ability to understand and remember
locations or short and simple instructions and procedures, his
ability to carry out very short and simple instructions, his
ability to maintain regular attendance, his ability to sustain
an ordinary routine without special supervision, his ability to
work with others and to make simple work-related decisions, his
ability to complete a normal work day and work week, and his
ability to accept instructions and criticism from supervisors.
(Id. at 107-09).

He also opined that Plaintiff is moderately

limited in his ability to understand, remember, and carry out
detailed

instructions,

concentration

for

appropriately

with

his

extended
the

ability
periods,

general

to

maintain

his

public,

attention

ability
and

his

respond appropriately to changes in the work setting.

20

to

and

interact

ability
(Id.).

to

The

record

reflects

that

in

the

months

following

Plaintiff’s brief (and only) psychotic episode in February 2014,
he continued to receive routine treatment at the VA for his
various

physical

and

mental

ailments.

Although

Plaintiff

continued to complain of anxiety and, on one occasion, exhibited
incoherent speech,

17

at no time other than February 2014 was

Plaintiff ever diagnosed with psychosis.
February

2014,

Plaintiff’s

To the contrary, after

physicians

consistently

noted

improvement with medication and no symptoms of psychosis.

(Id.

at 1055-61, 1067, 1069, 1071, 1078, 1081, 1220, 1225, 1228-30).
Specifically, on March 28, 2014, Plaintiff presented to the
VA mental health clinic for a medication refill and reported
“everything is going fine.”

(Id. at 1083).

On April 28, 2014,

Plaintiff reported that his medications were helping his mood.
(Id.

at

1067).

examination

On

findings

May

1,

2014,

reflected

anxiety, and improved attention.

normal

Plaintiff’s
affect

and

psychiatric
mood,

(Id. at 1059, 1067).

less

On that

same date, the VA issued Plaintiff an Apple Ipod as part of his

17

The Court notes that on one occasion, April 28, 2014, Plaintiff
presented for counseling with Dr. Aiken, and Dr. Aiken noted
increased anxiety and rambling speech with “delusional content.”
(Tr. 1073).
Dr. Aiken instructed Plaintiff to see Dr. Strauss
on that same date to discuss changing his medication.
(Id.).
Dr. Strauss examined Plaintiff and noted that he was “quite
anxious” and “had difficulty expressing himself clearly (as is
usual for him),” but that there was “no evidence of psychosis.”
(Id. at 1071).

21

therapy,

and

Plaintiff

verbalized

understanding

of

instructions and demonstrated proper use of the device.
1067).

(Id. at

On May 28, 2014, and July 14, 2014, Plaintiff reported

to Dr. Strauss that he had no complaints.
On

the

June

19,

2014,

Plaintiff’s

(Id. at 1228, 1230).

mother

needs/concerns” at that time.

(Id. at 1229).

appointment

on

with

Dr.

Aiken

August

reported

After missing his

11,

reported, “I’ve been better, I’ve been worse.”

“no

2014,

Plaintiff

(Id. at 1220).

The record reflects that Plaintiff was a “no show” for his
VA appointments on May 15, 2014, June 3, 2014, June 19, 2014,
July 17, 2014, August 11, 14, and 28, 2014. 18
1228-29).

(Id. at 1220,

These are the last VA treatment notes in the record.

On May 1, 2014, the VA issued a determination related to
Plaintiff’s
assigned

claim

Plaintiff

for
a

service
10%

related

disability

compensation.

rating

for

The

VA

degenerative

joint disease in Plaintiff’s cervical spine, a 10% disability
rating

for

shoulder,

degenerative

and

a

10%

joint

disease

disability

rating

in
for

Plaintiff’s

right

Plaintiff’s

TBI

(claimed as speech problems, memory loss, headaches, and dizzy
spells).

(Id. at 1040-52).

The VA denied Plaintiff’s claim for

18

The VA record dated July 18, 2004, reflects that Plaintiff
exceeded the “no show” limits for the VA Speech Pathology
Clinic,
and
as
a
result,
Plaintiff
was
notified
that
recertification would be required before he would be readmitted.
(Tr. 1227). Plaintiff also exceeded the “no show” limit for the
VA Radiology department on July 8, 2014. (Id. at 1229).

22

PTSD and noted that Plaintiff sought no mental health treatment
while in the service and that the cause of any PTSD was likely
Plaintiff’s “binge use of illicit drugs and abuse of alcohol.”
(Id. at 1052).
On

October

14,

2014,

non-examining

medical

expert/psychologist, Dr. John William Davis, Ph.D., testified at
Plaintiff’s second administrative hearing that Plaintiff has a
problem with alcoholism and that, when intoxicated, all of his
limitations would be “marked” (id. at 75-78); that Plaintiff’s
TBI, anxiety, and PTSD are not severe

(id. at 77, 88); and that

there is no objective evidence of ADD (id. at 76).

Dr. Davis

opined that in the absence of alcoholism, any limitations on
Plaintiff’s judgment and his ability to handle routine changes
in

the

work

instructions

place,
and

understand,
respond

carry

out,

appropriately

supervisors, and work pressures are “mild.”

and
to

remember
coworkers,

(Id. at 77).

Based on the record evidence, the undersigned finds that
the ALJ had good cause for rejecting the opinion of Dr. Nusbaum.
The ALJ found, and the record confirms, that the opinion of Dr.
Nusbaum set forth in the Mental Disorders Questionnaire form
completed

on

March

7,

2014,

that

Plaintiff’s

unspecified

psychotic disorder resulted in a “total occupational and social
impairment” (id. at 1090-92), was based primarily on her review
of

the

records

of

a

single

medical

23

event

that

occurred

the

preceding

week

19

and

is

otherwise

inconsistent

substantial medical evidence in this case.20

with

the

(Id. at 1135-37).

As discussed above, the record shows that four days after
Plaintiff’s February 2014 psychotic episode (and one day before
Dr. Nusbaum’s examination), VA physician, Dr. Neela Mani, M.D.,
examined

Plaintiff

deficits

caused

by

for
his

purposes
TBI

and

of

evaluating

found

that

any

he

cognitive

was

able

to

communicate by spoken and written language, that he was able to
comprehend

spoken

and

written

language,

that

he

had

no

neurobehavioral effects, that his orientation was normal, that
his motor activity was normal, that his social interaction was
appropriate, that his judgment was normal, and that his memory,
concentration, and attention were normal.

(Id. at 1097, 1135-

37).
Dr.

Nusbaum’s

opinion

is

also

inconsistent

with

the

findings of consultative examining psychologist, Dr. Starkey,
who evaluated Plaintiff twelve days after his psychotic episode
and

reported

that

Plaintiff

was

able

to

focus

and

sustain

19

In fact, Dr. Nusbaum referred to Plaintiff’s psychotic
disorder as “current” and opined that it was not caused by his
military service but by exposure to illicit drugs, referencing
Plaintiff’s “post-military drug binge.” (Tr. 1094-96).

20

Like Dr. Nusbaum, Dr. Jackson, Psy.D., also examined Plaintiff
shortly after his single psychotic episode, and she too opined
that
Plaintiff’s
“current
psychosis”
resulted
in
total
occupational and social impairment; however, as indicated above,
this finding is at odds with the substantial record evidence.

24

attention and was alert and oriented, that his speech, thinking,
reasoning,

insight,

judgment,

focus,

attention,

language,

hearing, vision, and motor function were normal, and that he had
no anxiety.
is

(Id. at 1030-33, 1035-36).

inconsistent

with

Dr.

Starkey’s

Dr. Nusbaum’s opinion

opinion

that

Plaintiff’s

ability to understand, remember and carry out simple/concrete
instructions

is

“good”

and

that

his

ability

independently is adequate especially for simple tasks. 21

to

work

(Id. at

1037, 1092).
Dr. Nusbaum’s opinion is also inconsistent with Plaintiff’s
routine treatment records from the VA. These records reflect
that at no time other than February 2014 was Plaintiff ever
diagnosed with psychosis.
Plaintiff’s

physicians

To the contrary, after February 2014,
consistently

noted

improvement

with

inconsistent

with

medication and no symptoms of psychosis.
In

addition,

Dr.

Nusbaum’s

opinion

is

Plaintiff’s reported activities of daily living which include
taking

care

of

his

mother,

taking

care

of

his

own

personal

needs, preparing meals, doing laundry and small chores, walking
outdoors “as much as possible,” having social activities “as
21

Dr. Nusbaum’s opinion that Plaintiff’s “psychotic disorder” may
have been caused by a “drug binge” (Tr. 1094-96) supports Dr.
Starkey’s opinion that Plaintiff’s symptoms could improve with
substance abuse treatment and contradicts Dr. Nusbaum’s own
opinion that Plaintiff is unable to work because of a total
social and occupational impairment.
(Id. at 1037).

25

much as possible,” going out alone, going to church, driving,
shopping,

handling

all

instructions “easily.”
foregoing,

the

ALJ

of

his

own

finances,

and

(Id. at 306-09, 1036).

had

good

cause

to

reject

reading

Based on the
Dr.

Nusbaum’s

opinion because it was inconsistent with the substantial medical
evidence in the case.
However, the ALJ’s finding that Plaintiff retains the RFC
to perform a range of medium work which would require him “to
understand to carry out ‘detailed but involved’ written or oral
instructions

involving

a

few

concrete

standardized situations” is problematic.
functional
despite

capacity

his

404.1545.

or

her

is

a

measure

credible

of

variables

in

or

(Id. at 24).
what

limitations.

Residual

Plaintiff
See

20

from

can

do

C.F.R.

§

Determinations of a claimant’s residual functional

capacity are reserved for the ALJ, and the assessment is to be
based upon all the relevant evidence of a claimant’s remaining
ability to work despite his or her impairments, and must be
supported by substantial evidence.
Supp.

2d

1323,

1331 (S.D.

Ala.

See Beech v. Apfel, 100 F.
2000)

(citing

20

C.F.R.

§

404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997)); Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10,
2012 WL 997222, *4 (M.D. Ala. March 23, 2012).
determined
claimant

the

bears

Plaintiff’s

residual

the

of

burden

26

Once the ALJ has

functional

demonstrating

capacity,

that

the

the

ALJ’s

decision is not supported by substantial evidence.

See Flynn v.

Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).
Having reviewed the evidence in this case at length, the
Court finds that the substantial evidence detailed above does
not support the ALJ’s conclusion that Plaintiff can perform work
involving “detailed but involved” written and oral instructions.
Simply put, the ALJ’s finding in this regard conflicts with the
opinion of examining psychologist Dr. Starkey that Plaintiff is
limited to work involving only simple instructions and simple
tasks.

The ALJ’s finding also conflicts with the opinion of

non-examining

State

Agency

psychologist

Dr.

Hinton

that,

although Plaintiff is not significantly limited in his ability
to

understand

and

remember

locations

or

short

and

simple

instructions and procedures, his ability to carry out very short
and

simple

instructions,

his

ability

to

maintain

regular

attendance, his ability to sustain an ordinary routine without
special supervision, his ability to work with others and to make
simple work-related decisions, his ability to complete a normal
work day and work week, and his ability to accept instructions
and criticism from supervisors, he is moderately limited in his
ability

to

instructions,

understand,
his

concentration

for

appropriately

with

remember,

ability
extended
the

to

periods,

general

27

and

carry

maintain
his

public,

out

attention

ability
and

detailed

his

to

and

interact

ability

to

respond appropriately to changes in the work setting (id. at
107-09).

Thus, the ALJ erred in including “detailed” work in

Plaintiff’s RFC assessment.22
Nevertheless,

although

the

ALJ

erred

in

including

“detailed” work in the Plaintiff’s RFC assessment, the Court
finds the error to be harmless.
the

administrative

hearing,

The record reflects that, at

the

ALJ

posed

a

hypothetical

question to the vocational expert which limited Plaintiff to
simple

work

Plaintiff

to

instructions.

and

another

“detailed

hypothetical
but

question

uninvolved”

which

written

limited
or

oral

In response to both questions, the vocational

expert identified three unskilled jobs, namely, “hand packager,”
“kitchen

helper,”

and

“poultry

farm

Plaintiff is capable of performing.

laborer,”

as

jobs

(Id. at 90-92).

which

Although

in the RFC assessment the ALJ found that Plaintiff could engage
in

“detailed

work,”

she

listed

the

three

unskilled

jobs

identified by the vocational expert in finding that Plaintiff is
not disabled because there are jobs that exist in significant

22

Additionally, the Court finds that, to the extent that the ALJ
construed the opinion of non-examining medical expert Dr. Davis,
that Plaintiff has no more than “mild” mental functional
limitations, as supporting a finding that Plaintiff can
understand and carry out “detailed but involved” instructions,
the ALJ erred in relying on that opinion as it conflicts with
the substantial record evidence, including the opinion of
examining psychologist Dr. Starkey that Plaintiff is limited to
work involving only simple instructions and simple tasks.
See
Milner, 275 Fed. Appx. at 948.
28

numbers

in

the

(Id. at 31).
work

in

national

economy

that

Plaintiff

can

perform.

Therefore, the ALJ’s error in including “detailed”

the

RFC

assessment

was

harmless.

See

Jones

v.

Commissioner of Soc. Sec., 492 F. Appx. 70, 73 (11th Cir. 2012)
(failure to include a driving limitation in the hypothetical
posed to the VE was harmless where the jobs identified by the VE
could be performed without driving and, thus, did not affect the
outcome of Plaintiff’s case); see also Battle v. Astrue, 243
Fed. Appx. 514, 522 (11th Cir. 2007) (unpublished) (errors are
harmless

if

they

do

not

prejudice

the

claimant);

Harper

v.

Colvin, 2015 U.S. Dist. LEXIS 15793, 2015 WL 540079, *6 (N.D.
Ala. Feb. 10, 2015) (“Assuming arguendo that the ALJ did commit
error

by

not

including

any

mental

limitations

in

his

RFC

finding, any such error was harmless because limitations based
on

the

Plaintiff’s

mental

impairment

were

included

in

the

hypothetical presented to the VE,” and the ALJ ultimately relied
upon

the

jobs

identified

by

the

VE

at

step

five

of

his

decision); Sheehan v. Colvin, 2014 U.S. Dist. LEXIS 125155, *37
(M.D. Fla. Sept. 8, 2014)(“The Court finds that the ALJ erred in
discounting the January, 2010 opinion of Dr. Gomes containing
restrictions, but the error is harmless because there is VE
testimony identifying other work that a hypothetical individual
restricted to light work and simple, routine tasks could do, and
that the work identified exists in significant numbers in the

29

national

economy,

given

Plaintiff’s

RFC

as

corrected,

age,

education and work experience. A remand is not necessary.”).
Based on the foregoing, the Court finds that Plaintiff’s claim
is without merit.
B. Whether the ALJ erred in failing to find
Plaintiff’s
PTSD
to
be
a
severe
impairment?
Last, Plaintiff argues that the ALJ erred in failing to
find his PTSD to be a severe impairment.
The

Commissioner

Plaintiff’s

PTSD

counters
is

not

that

severe

the
is

(Doc. 13 at 6-10).
ALJ’s

finding

supported

by

that

substantial

evidence, and that even if the ALJ erred in not identifying PTSD
to

be

a

severe

impairment

evaluation

process,

considered

all

of

the

at

error

step
is

Plaintiff’s

two

of

harmless

the

sequential

because

impairments,

the

including

during the subsequent steps of the inquiry.

ALJ

PTSD,

(Doc. 20 at 4-8).

Having carefully reviewed the record in this case, the Court
agrees that Plaintiff’s claim is without merit.
In

her

sequential

decision,

evaluation

the

ALJ

process

found

that

at

step

Plaintiff

two

has

the

of

the

severe

impairments of cervical spondylosis, degenerative joint disease
of the right shoulder, late effects of traumatic brain injury
vs. psychotic disorder including speech difficulties, headaches,
anxiety, attention deficit hyperactivity disorder, memory loss,
and

alcohol

dependence.

(Tr.

30

21).

The

ALJ

discussed

the

evidence relating to Plaintiff’s PTSD and determined that it was
not a severe impairment.

(Id. at 21-22).

The Court notes at the outset that the Commissioner is
correct that, even if Plaintiff’s PTSD were severe, the ALJ’s
failure to classify it as a severe impairment at step two of the
sequential evaluation process is not fatal.

See Bennett v.

Astrue, 2013 U.S. Dist. LEXIS 115951, *14, 2013 WL 4433764, *5
(N.D.

Ala.

2013)

(“‘[n]othing

requires

that

the

ALJ

must

identify, at step two, all of the impairments that should be
considered severe’ and, even if the ALJ erred by not recognizing
every severe impairment, the error was harmless since he found
at least one such impairment.”); Ferguson v. Astrue, 2012 U.S.
Dist. LEXIS 139135, *25, 2012 WL 4738857, *9 (N.D. Ala. 2012)
(“[B]ecause step two only acts as a filter to prevent non-severe
impairments from disability consideration, the ALJ’s finding of
other severe impairments allowed him to continue to subsequent
steps

of

the

headaches

determination

as

process

severe

not

does

and

his

constitute

failure

to

reversible

list
error

because, under the Social Security regulations, the ALJ at later
steps

considers

the

combined

effect

of

all

the

claimant’s

impairments.”) (emphasis in original).
Here,

the

ALJ

found

Plaintiff’s

cervical

spondylosis,

degenerative joint disease of the right shoulder, late effects
of

traumatic

brain

injury

vs.

31

psychotic

disorder

including

speech difficulties, headaches, anxiety, ADHD, memory loss, and
alcohol dependence to be severe at step two and then proceeded
on to the next steps where she considered all of Plaintiff’s
impairments in combination, including his PTSD.

(Tr. 24-30).

Thus, the ALJ satisfied the requirements of the regulations.
Further, in order for an impairment to be severe, it must
be more than a slight abnormality or a combination of slight
abnormalities

“that

limitations.”

20

“significantly
work

no

C.F.R.

limit[]”

activities.”

Plaintiff’s

causes

§

an

than

minimal

416.924(c).

individual’s

20

burden

more

C.F.R.

to

§

prove

Indeed,

“ability

it

must

existence

to

do

basic

“It

416.920(c).

the

functional

is

[the]

of

a

severe

impairment, and she must do that by showing an impact on her
ability

to

work.”

Marra

v.

Colvin,

2013

U.S.

Dist.

LEXIS

105669, *13-14, 2013 WL 3901655, *5 (M.D. Fla. 2013) (citing
Bowen v. Yuckert, 482 U.S. 137, 146 (1987)); see also Barnhart
v. Thomas, 540 U.S. 20, 24 (2003) (“At step two, the SSA will
find

nondisability

unless

the

claimant

shows

that

he

has

a

‘severe impairment,’ defined as ‘any impairment or combination
of

impairments

which

significantly

physical

or

mental

(quoting

§§

404.1520(c),

F.2d

1026,

1031

ability

(11th

to

do

limits
basic

416.920(c));

Cir.

1986)

[the

work

McDaniel

(“Unless

the

claimant’s]

activities.’”)
v.

Bowen,

800

claimant

can

prove, as early as step two, that she is suffering from a severe

32

impairment, she will be denied disability benefits.”).
Here, Plaintiff has failed to satisfy his burden of proof
with respect to the alleged severity of his PTSD.

Although

Plaintiff’s medical records document a diagnosis and treatment
for PTSD, none of his medical records indicates that his PTSD is
severe and significantly limits his ability to do basic work
activities.
To the contrary, Plaintiff’s treatment records show very
conservative treatment for his PTSD, consisting of medication
and counseling. 23
1205-09).

(Id. at 1058-67, 1071-79, 1166-67, 1172-73,

Plaintiff’s medical records also show periods of no

treatment whatsoever or non-compliance with treatment (id. at
76,

316,

1057,

1205,

1207,

1209,

1213,

1220),

frequent and consistent drug and alcohol abuse.

as

well

as

(Id. at 100,

437, 464, 740, 793, 810, 823, 830, 934, 1030, 1036, 1052, 1164,
1173,

1202,

1211).

Although

Plaintiff’s

treating

VA

psychiatrist, Dr. Strauss, and treating psychologist, Dr. Aiken,
diagnosed Plaintiff with PTSD, neither assigned any functional
limitations

from

the

condition.

(Id.

at

1071,

1073-74).

Moreover, VA psychiatrist, Dr. Nusbaum, who examined Plaintiff

23

With the exception of Plaintiff’s brief hospitalization in
February 2014 for the psychotic episode that occurred during his
compensation and pension examination with the VA (id. at 1039,
1154), his records reflect no hospitalizations or emergency room
visits for any mental condition.

33

on March 7, 2014, after his brief psychotic episode, opined that
he had no diagnosable PTSD.

(Id. at 1090, 1096).

In addition,

the VA denied Plaintiff’s claim for PTSD, noting that he sought
no mental health treatment during his service and that the cause
of any PTSD was likely his “binge use of illicit drugs and abuse
of alcohol.”

(Id. at 1052).

Further, consultative examining psychologist, Dr. Starkey,
found Plaintiff’s report of symptoms of PTSD to be inconsistent,
noting that he did not report any symptoms of depression and
that

he

gave

misleading

(Id. at 1036-37).

information

his

drinking.

Dr. Starkey diagnosed Plaintiff with Alcohol

Use Disorder, Rule Out PTSD mild.
expert/psychologist,
administrative

regarding

Dr.

hearing

(Id. at 1036).

Davis,
that,

testified

based

Also, medical

at

upon

his

Plaintiff’s
review

of

Plaintiff’s medical records, Plaintiff’s PTSD was not severe.
(Id.

at

76-77).

In

sum,

none

of

Plaintiff’s

treating

or

examining physicians nor the non-examining psychological expert
found

any

functional

limitations

attributable

to

Plaintiff’s

PTSD.
In

light

of

this

evidence,

the

ALJ

did

not

err

in

determining that Plaintiff’s PTSD did not significantly limit
his ability to do basic work activities, and thus, is not a
severe impairment.
V.

Thus, Plaintiff’s claim is without merit.

Conclusion

34

For

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 2nd day of August, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

35