Brant v. Colvin

Filing 18

Order re: 1 Complaint filed by Steven R. Brant stating the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability and disability insurance benefits be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/11/17. Copies to counsel (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEVEN R. BRANT,

*
*
*
*
* CIVIL ACTION NO. 16-000222-B
*
*
*
*
*
*

Plaintiff,
vs.
NANCY BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

ORDER
Plaintiff Steven R. Brant (hereinafter “Plaintiff”), seeks
judicial

review

of

a

final

decision

of

the

Commissioner

of

Social Security denying his claim for a period of disability and
disability

insurance

benefits

under

Title

Security Act, 42 U.S.C. §§ 401, et seq.

II

of

the

Social

On May 2, 2017, the

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

(Doc. 14).

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.

1

Upon careful consideration

Nancy Berryhill became the Acting Commissioner of Social
Security on January 23, 2017.
Pursuant to Rule 25(d), Federal
Rules of Civil Procedure, Nancy Berryhill should be substituted
for Carolyn W. Colvin as the defendant in this suit. No further
action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).

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 protectively filed his application for benefits

on April 14, 2015, alleging disability beginning February 23,
2015, based on “PTSD, TBI, memory loss/short term, [and] severe
headaches.”

(Tr. 135, 153, 157).

Plaintiff’s application was

denied and upon timely request, he was granted an administrative
hearing before Administrative Law Judge Vickie Evans on January
7, 2016.

(Tr. at 37).

Plaintiff attended the hearing with his

counsel and provided testimony related to his claims.
vocational

expert

(“VE”)

provided testimony.

also

appeared

(Tr. 59).

at

the

(Id.).

hearing

A
and

On February 3, 2016, the ALJ

issued an unfavorable decision finding that Plaintiff is not
disabled.

(Tr. 32).

The Appeals Council denied Plaintiff’s

request for review on April 15, 2016.

(Tr. 1).

Therefore, the

ALJ’s decision dated February 3, 2016, became the final decision
of the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

Oral argument

was conducted on May 31, 2017 (Doc. 17), and the parties agree
that this case is now ripe for judicial review and is properly
before

this

Court

pursuant

to

2

42

U.S.C.

§§

405(g)

and

1383(c)(3).
II.

Issues on Appeal
1. Whether the ALJ erred in failing to
assign significant weight to the opinions
of evaluating psychologist, Dr. Joseph G.
Law, examining psychologist, Dr. Jennifer
Jackson,
Psy.D.,
and
therapist,
Ms.
Elizabeth
Wharton,
MS,
LMPT,
while
assigning great weight to the opinions of
consultative
psychologist,
Dr.
Thomas
Bennett,
Ph.D.,
and
State
Agency
psychologist, Dr. Donald Hinton, Ph.D.?
2. Whether substantial evidence supports the
RFC for a range of work at all exertional
levels with the stated non-exertional
limitations?

III. Factual Background
Plaintiff was born on October 7, 1982, and was thirty-three
years

of

age

at

January 7, 2016.

the

time

of

his

(Tr. 37, 45).

administrative

hearing

on

Plaintiff graduated from high

school and completed an associates degree in college in applied
science.

(Tr. 45).

Plaintiff was a Sergeant in the military (Army National
Guard) from 2001 to 2004 serving in the military police.
45-46).

He

received

an

honorable

discharge

and

(Tr.

currently

receives VA disability benefits with a rating of 70% for post
traumatic stress disorder.
Plaintiff

worked

2009 to February 2015.

as

(Tr. 47, 372).
a

physical

(Tr. 49, 164).

therapist

from

He stopped working when

he received his increased VA disability rating.

3

assistant

(Tr. 51-52).

At the administrative hearing, Plaintiff testified that he
cannot work due to memory problems, anxiety problems, problems
maintaining a schedule, anger, and flashbacks.
He receives therapy at the VA.

(Tr. 56).

is Ambien to help him sleep at night.

(Tr. 55-56, 58).

His only medication

(Tr. 57, 59).

IV. 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).

2

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

2

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

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

Statutory And Regulatory Framework
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

C.F.R.

§§

regulations
process

determining if a claimant has proven his disability.

for

20 C.F.R.

§§ 404.1520, 416.920.
The
engaged

claimant
in

must

substantial

first

prove

gainful

that

activity.

he

or
The

she

has

second

not
step

requires the claimant to prove that he or she has a severe

5

impairment or combination of impairments.

3

If, at the third

step, the claimant proves that the impairment or combination of
impairments
claimant

meets

is

or

equals

automatically

a

listed

found

education, or work experience.

impairment,

disabled

regardless

then

the

of

age,

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.
1986).
the

Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.

In evaluating whether the claimant has met this burden,

examiner

must

consider

the

following

four

factors:

(1)

objective medical facts and clinical findings; (2) diagnoses of
examining
claimant’s

physicians;
age,

(3)

education

evidence
and

work

of

pain;

history.

and
Id.

(4)

the

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

work history.
1985).

functional

capacity,

age,

education,

and

Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.

If the Commissioner can demonstrate that there are such

jobs the claimant can perform, the claimant must prove inability

3

In this case, the ALJ found that Plaintiff has the following
severe impairments: post traumatic stress disorder (PTSD),
alcohol use disorder, and depressive disorder. (Tr. 22).

6

to perform those jobs in order to be found disabled.
Apfel, 190 F.3d 1224, 1228 (11th

Cir. 1999).

Jones v.

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)).
VI.

Discussion
A. Substantial evidence supports the ALJ’s
assignment
of
weight
to
the
expert
medical evidence in this case.
Plaintiff argues that the ALJ erred in failing to assign

appropriate weight to the opinions of evaluating psychologist,
Dr. Joseph G. Law, examining psychologist, Dr. Jennifer Jackson,
Psy.D., and therapist, Ms. Elizabeth Wharton, MS, LMPT, while
assigning

great

weight

psychologist,

Dr.

psychologist,

Dr.

Thomas
Donald

to

the

Bennett,
Hinton,

opinions
Ph.D.,
Ph.D.

of
and

consultative
State

Agency

9

4-11).

(Doc.

at

Defendant counters that the substantial evidence supports the
ALJ’s assignment of weight to the expert opinions in this case.
(Doc. 10 at 3-8).

Having reviewed the record at length, the

Court finds that Plaintiff’s claim is without merit.
As part of the disability determination process, the ALJ is
tasked

with

examining,

weighing
and

the

opinions

non-examining

and

findings

physicians.

In

of

treating,

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).

7

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

not

physician.

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.’”
(11th

Cir.

Milner v. Barnhart,
2008)

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

sources

examining sources.”

275 Fed. Appx. 947, 948

(unpublished)
“The

when

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)).

8

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.).
First, with respect to Plaintiff’s argument that the ALJ
erred in assigning little weight to the opinions of evaluating
psychologist, Dr. Joseph Law, regarding Plaintiff’s functional
limitations, the record shows that Dr. Law evaluated Plaintiff
as part of Plaintiff’s VA disability proceedings, seeing him on
five occasions from January to May 2014.

(Tr. 252).

On July

26, 2014, Dr. Law completed a report based on his evaluations.
He opined that Plaintiff has “significant cognitive deficits”
due to traumatic brain injury (TBI) residuals from a concussive

9

injury sustained in military combat in Iraq, that Plaintiff has
markedly

impaired

difficulty

social

understanding

and

complex

occupational
commands,

functioning,

impaired

judgment,

marked disturbances in mood and motivation, significant deficits
in being able to adapt to stressful circumstances such as work
and social relationships, and marked impairment in his ability
to stay on task and to adapt to work settings as a result of his
TBI residuals.

(Tr. 252, 259-60).

Dr. Law diagnosed Plaintiff

with chronic PTSD, mild neurocognitive disorder due to TBI, mild
alcohol use disorder, and unspecified depressive disorder.

(Tr.

259).
The record shows that the ALJ considered these opinions at
length and determined that Dr. Law’s assessment of Plaintiff’s
functional limitations was entitled to little weight because his
opinions were not consistent with Plaintiff’s treatment records
nor with Plaintiff’s activities of daily living.

(Tr. 26-27).

The Court agrees.
As

stated,

Dr.

Law

opined

that

Plaintiff

has

marked

impairments as a result of his significant cognitive deficits
from TBI.
diagnosis

Yet, Plaintiff’s VA treatment records reflect no
of

TBI,

no

limitations from TBI. 4

residual

problems

from

TBI,

(Tr. 259, 282-83, 314, 387).

4

Plaintiff’s VA treatment records
indicated ‘Veteran does not meet
10

and

no

Moreover,

provide, “C&P TBI exam
diagnostic criteria for

Dr.

Law

himself

diagnosed

Plaintiff

neurocognitive disorder due to TBI.

with

(Tr. 259).

only

“mild”

The record also

shows that while Plaintiff received mental health treatment for
anxiety,

depression,

and

PTSD

at

the

VA,

he

dropped

out

of

treatment at the VA in January 2013, returned in September 2013,
and then did not return again until April 15, 2014.
89).

(Tr. 388-

Plaintiff’s most recent VA treatment records in July 2015,

further reflect that his main concern was poor sleep, that his
only prescribed medication was Ambien, and that “no other needs
or concerns [were] expressed at [that] time.”
addition,

a

mental

status

examination

(Tr. 381-83).
conducted

by

In
VA

psychiatrist, Dr. Douglas Ewing, on July 1, 2015, showed that
Plaintiff was alert, oriented to person, place, and time, that
his speech was normal, and that his thoughts were logical, goal
oriented, and centered on insomnia.
Law’s

mental

reflected

status

that

examination

Plaintiff

was

(Tr. 383).

conducted

oriented

to

on

Likewise, Dr.
July

time,

26,

2015,

place,

and

person, that his speech was coherent and understandable, that he
could write sentences and follow commands, that his long term
memory was intact, and that he could remember and follow simple

Traumatic Brain Injury.’”
(Tr. 283).
“The veteran does not
meet diagnostic criteria for Traumatic Brain Injury as defined
by DOD/VA guidelines, nor by any current medical protocol.”
(Tr. 314).

11

instructions. 5

(Tr. 252-53).

Further, at Plaintiff’s July 1,

2015 appointment with Dr. Ewing, Plaintiff denied side effects
from his medication and reported that he was able to go to the
gym and go shopping, although he chose not to do so when it was
crowded.

(Tr. 383).

The record reflects other evidence of

Plaintiff’s wide-ranging activities of daily living, including
driving, caring for himself and his young son, taking his son to
preschool,
simple

going

meals,

to

the

doing

gym,

yard

caring

work,

for

doing

his

dog,

chores,

preparing

maintaining

relationships with family and friends, shopping, paying bills,
handling bank accounts, and playing golf.
Plaintiff’s
meals,

takes

wife

care

of

confirmed
their

son

that
and

(Tr. 187-90).

Plaintiff
the

dog,

helps
does

prepare

household

chores and yard work, does his personal care without assistance,
drives, shops, handles the finances, plays golf, does not need
reminders or someone to accompany him to go places, and follows
basic

instructions,

although

he

has

problems

with

intricate

instructions, gets frustrated easily, has trouble sleeping, and
does not handle stress well.
As

the

ALJ

found,

the

(Tr. 199-205).
alleged

severity

of

Plaintiff’s

limitations, as opined by Dr. Law, is inconsistent with the
substantial medical evidence, as well as with the evidence of
5

As discussed herein, the RFC restricts Plaintiff’s work to
“simple, repetitive” instructions. (Tr. 24).

12

Plaintiff’s activities of daily living.

For these reasons, the

ALJ had good cause to discredit Dr. Law’s opinions.
Likewise, Plaintiff’s arguments related to Dr. Jackson and
Ms.

Wharton

examining

fail.

VA

With

respect

psychologist,

Dr.

to

the

opinion

Jennifer

of

one-time

Jackson,

Psy.D.,

Plaintiff is correct that the ALJ failed to even mention Dr.
Jackson’s opinions.

The record shows that Dr. Jackson examined

Plaintiff on August 13, 2014, and, based largely on Plaintiff’s
reports of symptoms, opined that he had occupational and social
impairment

with

deficiencies

in

most

areas,

such

as

work,

school, family relations, judgment, thinking and/or mood, that
he met all of the diagnostic criteria for PTSD, that he had
depressed mood, anxiety, suspiciousness, panic attacks, chronic
sleep

impairment,

disturbances

of

motivation

and

mood,

difficulty in establishing and maintaining effective work and
social

relationships,

circumstances,

difficulty

including

work

in
a

work-like

or

adapting

to

stressful

setting,

and

suicidal ideation, that he had a significantly reduced tolerance
for

frustration,

hypervigilance,
difficulty

and

that

difficulty

working

under

he

had

regulating
deadlines

sleep

mood,

and

disturbances,

angry

outbursts,

pressure,

difficulty

interacting with others, and difficulty with focus, attention,
and concentration.

(Tr. 282-89).

Because these opinions appear

to be based, in large part, on Plaintiff’s subjective report of

13

symptoms and, more importantly, because the severity of these
opinions is inconsistent with the substantial medical evidence
and activities of daily living detailed above, the Court finds
that any error by the ALJ in failing to discuss Dr. Jackson’s
opinions was harmless.

See Battle v. Astrue, 243 Fed. Appx.

514, 522 (11th Cir. 2007) (unpublished) (errors are harmless if
they do not prejudice the claimant); see also Ware v. Schweiker,
651 F. 2d 408, 412 (5th Cir. 1981) (remand would be a “wasteful
corrective exercise” when “no further findings could be made
that would alter the ALJ’s determination” given the record as a
whole).
With

respect

to

Ms.

Wharton,

Plaintiff’s

VA

therapist,

Plaintiff argues that the ALJ erred in assigning little weight
to

her

opinion

that

Plaintiff’s

PTSD

symptoms

cause

restrictions in social and emotional functioning.

severe

(Tr. 380).

Plaintiff argues that, while Ms. Wharton is not an “acceptable
medical

source,”

her

opinion

can

be

used

to

determine

the

severity of his impairments and how they affect his ability to
function.
Plaintiff
“acceptable

is

correct

medical

administrative

that

sources”

regulations.

Guy

licensed
under
v.

therapists

the
Colvin,

Social
2016

are

not

Security
U.S.

Dist.

LEXIS 131893, *11, 2016 WL 5390639, *4 (N.D. Ala. Sept. 27,
2016)

(citing

See

20

C.F.R.

14

§§

404.1513(a),

416.913(a)).

“Rather,

therapists

Commissioner

may

are

use

‘other

sources’

evidence.”

Id.

from

which

(emphasis

in

the

original)

(citing 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1))(therapist’s
opinion

“was

consideration”

not

entitled

but

could

to

be

any

used

special

in

significance

evaluating

or

severity

of

Plaintiff’s impairments and the effect of her impairments on her
functioning); see also Bryant v. Colvin, 2014 U.S. Dist. LEXIS
120804, *13, 2014 WL 4415971, *5 (N.D. Ala. Aug. 29, 2014) (the
medical opinion of an “other source” “could be used to show the
severity

of

an

impairment.”)
source’

impairment

(citing

opinions

are

but

not

20

C.F.R.

§

not

entitled

the

presence

404.1513(d)).
to

controlling

of

an

“‘[O]ther
weight,

a

designation that the regulations reserve for ‘acceptable medical
sources.’”

Bryant, 2014 U.S. Dist. LEXIS 120804, *14, 2014 WL

4415971, *5 (N.D. Ala. Aug. 29, 2014) (holding that ALJ did not
err when she refused to give “other source’s” medical opinion
controlling weight).
In this case, the ALJ explained that she gave little weight
to

Ms.

Wharton’s

undated
treatment

and

opinion

because

records,

it

because
was

her

evaluation

inconsistent

particularly

treatment only for sleep concerns.

recent

with

records

(Tr. 27).

letter

was

Plaintiff’s
which

showed

Plaintiff points

out that Ms. Wharton’s letter references Plaintiff’s age as 32,
which places the time of the letter between October 7, 2014, and

15

October 7, 2015, encompassing Plaintiff’s alleged onset date.
(Tr. 382-83).
that

Ms.

Wharton’s

treatment
living,

Be that as it may, it does not change the fact

records

as

opinion
and

detailed

is

inconsistent

evidence

above.

of

his

Moreover,

with

Plaintiff’s

activities
the

ALJ

of

daily

agreed

that

Plaintiff’s PTSD is a severe impairment; however, based on the
substantial evidence, concluded that Plaintiff’s PTSD symptoms
cause

only

moderate

difficulties

in

social

functioning

and

concentration, persistence, or pace, which the ALJ accommodated
by limiting the RFC to work involving only simple, repetitive
instructions, having “no more than superficial interaction with
the

general

public,”

and

only

“occasional

interaction

supervisors and coworkers for non-collaborative work.”
23, 24).
level

of

with

(Tr. 22-

Because Ms. Wharton is an “other source,” and the
severity

of

limitations

which

she

opined

is

inconsistent with the substantial evidence detailed above, the
ALJ had good cause to assign her opinion little weight.
Next,

Plaintiff

argues

that

the

ALJ

erred

in

assigning

great weight to the opinions of consultative psychologist, Dr.
Thomas Bennett, Ph.D., and State Agency reviewing psychologist,
Dr. Donald Hinton, Ph.D. (Doc. 9 at 9).

Defendant counters that

these opinions are consistent with the substantial evidence in
the case.
The record shows that consultative psychologist, Dr. Thomas

16

Bennett, Ph.D., evaluated Plaintiff on June 23, 2015, and that
his

diagnostic

impression

was

PTSD

by

history,

persistent

depressive disorder with anxious distress, probable alcohol use
disorder, and previous diagnosis of mild neurocognitive disorder
due to traumatic brain injury with no obvious signs at this
time.

(Tr. 363).

Plaintiff reported to Dr. Bennett that he was

on

medication

for

no

mental

health

issues

(Tr.

360).

Dr.

Bennett found that Plaintiff’s responses to cognitive tasks were
“much

improved”

when

compared

to

earlier

reports

(Tr.

363),

specifically, that Plaintiff had normal speech, normal range of
affect with a mildly dysphoric mood, normal orientation, normal
thought processes and content, no difficulty with serial sevens,
calculations, counting, or spelling backwards (Tr. 361), good
memory, average fund of information, judgment, and intelligence,
and fair insight.

(Tr. 361-62).

Plaintiff reported a wide

variety of activities including playing golf, some childcare,
cooking, chores, yard work, and shopping.

(Tr. 362-63).

Dr.

Bennett opined that, while Plaintiff’s activities and interests
were constricted, his ability to relate to others was average,
as was his ability to function independently and understand and
carry

out

instructions.

(Id.).

Dr.

Bennett

observed

that

Plaintiff’s ability to respond appropriately to supervisors and
co-workers had apparently been adequate and that Plaintiff would
probably respond to work pressures by quitting.

17

(Id.).

With

respect

to

State

Agency

psychologist,

Dr.

Donald

Hinton, Ph.D., the record shows that he reviewed Plaintiff’s
medical records and opined that Plaintiff can understand and
remember at least simple instructions, carry out simple tasks,
and maintain attention and concentration for at least two hour
time periods during an eight hour day.
further

opined

that

Plaintiff

(Tr. 78).

would

Dr. Hinton

encounter

social

restrictions, mainly when interacting with the general public,
but

that

the

rest

of

significantly restricted.
Plaintiff

could

adapt

his

social

(Id.).

to

capacity

would

not

be

Dr. Hinton concluded that the

occasional

changes

of

routine

for

simple situations not calling for a rapid or extensive changes
in work tasks or procedures.

(Tr. 79).

Contrary to Plaintiff’s argument, the Court finds that the
opinions of Dr. Bennett and Dr. Hinton are consistent with the
substantial evidence detailed above and that the opinions of Dr.
Jackson, Dr. Law, and Ms. Wharton

are inconsistent with the

substantial evidence in this case.

Therefore, the ALJ did not

err with respect to the weight assigned to the expert evidence
in this case, and Plaintiff’s claim must fail.
B. Substantial evidence supports the RFC for
a range of work at all exertional levels
with stated non-exertional limitations.
Last, Plaintiff argues that the RFC is inconsistent with
his diagnoses of PTSD, the opinions Dr. Jackson, Dr. Law, and

18

Ms. Wharton, and the VA’s 70% disability rating for PTSD.
9 at 6).

(Doc.

Residual functional capacity is a measure of what

Plaintiff can do despite his or her credible limitations.
20 C.F.R. § 404.1545.

See

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.

See Beech v. Apfel,

100 F. Supp. 2d 1323, 1331 (S.D. Ala. 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

Once the ALJ has

functional

demonstrating

capacity,

that

decision is not supported by substantial evidence.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).

the

the

ALJ’s

See Flynn v.
Plaintiff has

failed to meet his burden in this case.
The ALJ found that Plaintiff has the RFC to perform “a full
range of work at all exertional levels with the following nonexertional limitations: He can understand, remember and carry
out

simple,

repetitive

instructions

and

can

persist

at

that

level for eight hours per day, five days per week consistently.
He

can

general

have

no

public

more
and

than
can

superficial
have

19

interaction

occasional

with

interaction

the
with

supervisors and coworkers for non-collaborative work – meaning
the work is not dependent upon working in concert with others to
achieve a desired result.
the work setting.”
testimony

of

the

He can adapt to occasional changes in

(Tr. 24) (emphasis added).
vocational

expert,

the

Based upon the

ALJ

concluded

that

Plaintiff cannot perform his past work as a physical therapy
assistant or military policeman but that he can perform other
work,

such

janitor

that

(medium,

unskilled).
The

as

of

a

groundskeeper

unskilled),

and

(medium,

bench

unskilled),

assembler

(light,

(Tr. 30-31, 62).

evidence

and

Plaintiff’s

arguments

related

to

Dr.

Jackson, Dr. Law, and Ms. Wharton have been discussed at length
and

will

not

be

repeated

here.

However,

with

respect

to

Plaintiff’s argument that the ALJ erred in failing to properly
consider his 70% VA disability rating for PTSD (Tr. 372), a
review of the record reveals that the ALJ expressly discussed
the VA rating and noted that it was being considered along with
other evidence in the record.

(Tr. 28-30).

The record further

reveals that the ALJ gave it “some weight,” but not “controlling
weight,” because of the difference in standards utilized by the
VA and because the evidence supported a finding that Plaintiff’s
limitations did not completely disable him from participating in
substantial gainful activity, particularly considering the nonexertional limitations contained in the RFC.

20

(Tr. 28-29).

The

ALJ

expressly

noted

that

Plaintiff

had

no

hospitalizations

related to his mental health conditions, nor any significant
treatment for acute symptoms since his onset date.
Moreover,

Plaintiff

took

no

medication

for

(Tr. 30).

his

conditions,

except Ambien for sleep, and he lived a fairly normal life,
taking his child to school, going to the gym, and playing golf.
(Id.).
ALJ’s

The record bears out these findings and supports the
conclusion

that

Plaintiff’s

activities

and

treatment

record are not consistent with a finding of total disability.
Indeed, Plaintiff has failed to show that any limitations caused
by

his

mental

accommodated

impairments

by

instructions,”

the

exceed

restrictions

“superficial

the
to

RFC

and

“simple,

interaction

with

are

not

repetitive

the

general

public,” “occasional interaction with supervisors and coworkers
for non-collaborative work,” and only “occasional changes in the
work setting.”

(Tr. 24).

Based on the foregoing, the Court finds that Plaintiff’s
claim is without merit.
VII.

Conclusion
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

and

disability

21

insurance

benefits

be

AFFIRMED.
DONE this 11th day of September, 2017.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

22