Love v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge P. Bradley Murray on 5/19/2017. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LATASHIA M. LOVE,

:

Plaintiff,

:

vs.

:

CA 16-0385-MU

NANCY A. BERRYHILL,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security denying her claim for a period
of disability and disability insurance benefits. The parties have consented to the
exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all
proceedings in this Court. (Doc. 15 (“In accordance with the provisions of 28 U.S.C.
636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States
Magistrate Judge conduct any and all proceedings in this case, . . . order the entry of a
final judgment, and conduct all post-judgment proceedings.”); see also Doc. 17 (order of
reference)). Upon consideration of the administrative record, plaintiff’s brief, the
Commissioner’s brief, and the arguments of counsel at the April 26, 2017 hearing
before the Court, it is determined that the Commissioner’s decision denying benefits
should be affirmed.1
1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 15 (“An appeal from a judgment

(Continued)

I. Procedural Background
Plaintiff protectively filed an application for disability insurance benefits on April 6,
2015, alleging disability beginning on March 31, 2015. (See Tr. 133-34.) Her claim was
initially denied on May 7, 2015 (Tr. 91-95) and, following Plaintiff’s request for a hearing
before an Administrative Law Judge (“ALJ”) (see Tr. 98-100), a hearing was conducted
before an ALJ on January 8, 2016 (Tr. 43-76). On March 24, 2016, the ALJ issued a
decision finding that the claimant was not disabled and, therefore, not entitled to
disability insurance benefits. (Tr. 24-38.) More specifically, the ALJ went to the fifth step
of the five-step sequential evaluation process and determined that Love retains the
residual functional capacity to perform those sedentary jobs identified by the vocational
expert (“VE”) during the administrative hearing (compare id. at 37 with Tr. 73-74). On
April 26, 2016, the Plaintiff appealed the ALJ’s unfavorable decision to the Appeals
Council (Tr. 17-18) and, the Appeals Council denied Love’s request for review on June
30, 2016 (Tr. 1-3). Thus, the hearing decision became the final decision of the
Commissioner of Social Security.
Plaintiff alleges disability due to degenerative disc disease of the lumbar spine
with sciatica and partial sacralization at L5, migraine headaches, obstructive sleep
apnea, tinnitus, obesity, peripheral vestibular disorder, fibromyalgia, depression, and
post-traumatic stress disorder (“PTSD”). In light of the issues raised by Plaintiff in her

entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”))

2

brief (see Doc. 9, at 2 & 7), the Court simply replicates most of the residual functional
capacity portion of the ALJ’s decision (Tr. 30-36), as follows:
5.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform a wide range
of sedentary work as defined in 20 CFR 404.1567(a). She can lift and
carry 10 pounds occasionally. She can stand or walk 2 hours per
eight-hour workday and sit for 6 hours per eight-hour workday, with
customary breaks. She can occasionally stoop, but is precluded
from climbing, kneeling, crouching, and crawling. She is precluded
from working at unprotected heights; operating hazardous, moving
equipment, or driv[ing]. She is precluded from exposure to loud
noises or noxious chemical fumes or gases. She is precluded from
pushing and pulling leg and foot controls. She requires a hand-held
assistive device for prolonged ambulation (more than three minutes)
on uneven terrain. She cannot work around light above the office
level, and cannot operate vibratory equipment. She can perform
short, simple, routine tasks. She can work in customary proximity to
coworkers but is precluded from coordinating with them in order to
complete her own tasks. She can occasionally interact with the
public. She can attend and concentrate for two hours, after which
she is expected to be off task for approximately three minutes before
resuming work tasks.
.

.

.

June 2013 to April 2015 records from VA Gulf Coast Veteran’s Health note
complaints of Meniere’s [d]isease, vertigo, lightheadedness, migraine
headaches, and pain that the claimant rated as 7 to 10 out of 10.
Examination findings revealed positive straight leg raise tests, tenderness
to palpitation at L4-5, reduced range of motion of the lumbar spine, and
obesity, which led to diagnoses of degenerative disc disease of the lumbar
spine, obstructive sleep apnea, migraine headaches, tinnitus, and obesity.
Additionally, multiple x-rays note congenital sacralization at L5.
The record also includes, however, otherwise normal examination
findings, including normal reflexes and strength in the upper and lower
extremities, negative straight leg raise tests, normal range of motion of the
claimant’s hip and ankles, and indications that the claimant ambulated
without the assistance of devices. Additionally, a May 2014 audiogram
noted normal hearing in her bilateral ears and notes indicate that the
claimant did not suffer from vertigo or Meniere’s disease. These records
note that the claimant’s spinal problems were not service related, she was
prescribed traction therapy, and she indicated on at least one occasion[]
that she was “doing good[.]”
3

July 2015 records note that the claimant was prescribed orthopedic inserts
for her shoes to help her back. August 2015 records from Gulf Coast Pain
Institute note that the claimant received multiple facet joint injections for
management of her pain. August to September 2015 records note
diagnoses of lumbar spondylosis, facet syndrome, and sciatica, which
were based on spinal pain, spasms, and weakness. Examination findings
revealed tenderness to palpitation, some distress because of pain,
decreased sensation and range of motion, and obesity, and the claimant
received facet joint injections. Otherwise, however, examination findings
were essentially normal, including a normal heart and other symptoms,
including her hearing and breathing.
Finally, April to September 2015 records from VA Biloxi noted complaints
of pain that [s]he rated 7 to 10 out of 10, migraine headaches that last 4 to
5 hours, problems falling, and low back pain with radiculopathy, which led
to diagnoses of degenerative disc disease of the lumbar spine,
paravertebral muscle spasms, obstructive sleep apnea, migraine
headaches, tinnitus, and obesity. Examination findings from this period
note elevated blood pressure readings, obesity, tenderness to palpitation
in her lumbar spine and hip, and pain on range of motion in her lumbar
spine. Records also note, however, on other occasions that the claimant
noted her pain levels were 0 out of 10 and she denied dizziness. Other
examination findings revealed that the claimant was not in acute distress,
she had full range of motion in her back, normal upper and lower
extremities, negative straight leg raise tests, and ambulated with a normal
gait and station, while a July 2015 electromyography (EMG) revealed no
evidence of neuropathy. These records also note that she quit her job to
“invest in her health and wellness” and wanted to open a counseling
center, and she indicated that she was performing gardening.
The aforementioned objective findings and the claimant’s admissions and
activities reduce the overall credibility of her allegations and undermine
any alleged disabling limitation resulting from her degenerative disc
disease of the lumbar spine, migraine headaches, obstructive sleep
apnea, tinnitus, obesity, and peripheral vestibular disorder. Although the
evidence of record documents the claimant’s diagnoses and treatment for
these impairments, a review of the overall evidence of record includes a
wealth of relatively normal examination findings on multiple occasions,
including normal audiology testing, no vertigo, negative straight leg raise
tests, and a normal gait.
Additionally, the claimant’s admitted and indicated activities and abilities
undermine the alleged severity of her allegations. She indicated that she
stopped working to invest in her health and wellness and noted that while
she was okay not working at the time, she wanted to open a counseling
4

center in the future. She also indicates that she performs activities that are
inconsistent with the level of symptomology that she alleges, including
caring for her 2-year-old child, preparing meals, performing some
household chores, driving, and gardening.
Based on the overall evidence of record, including the aforementioned
examples, I find the claimant’s allegations regarding the intensity,
duration, and persistence of her symptomology to be less than fully
credible.
Accordingly, the aforementioned objective findings, including the relatively
normal examination findings from throughout the VA records, as well as
the claimant’s admitted activities and abilities, including caring for her
children, driving, and gardening, all indicate that the claimant’s
symptomology resulting from her degenerative disc disease of the lumbar
spine, migraine headaches, obstructive sleep apnea, tinnitus, obesity, and
peripheral vestibular disorder are not completely disabling. However, I
note that the claimant’s occasional symptomology can reasonably be
expected to cause some limitations to the claimant’s ability to function,
and has limited the claimant to a wide range of work at the sedentary
exertional level. The limitation to lifting and carrying 10 pounds
occasionally; standing or walking 2 hours per eight-hour workday;
occasionally stooping; and the preclusion from climbing, kneeling,
crouching, and crawling all accommodate her degenerative disc disease
of the lumbar spine, migraine headaches, obstructive sleep apnea,
tinnitus, obesity, and peripheral vestibular disorder. The preclusion from
exposure to loud noises, noxious chemical fumes or gases, the preclusion
from exposure to light above the office level, and the preclusion from
exposure to vibrations, including vibratory equipment[,] further
accommodates the claimant’s migraine headaches. The preclusion from
pushing and pulling leg and foot controls further accommodates the
claimant’s degenerative disc disease of the lumbar spine. The requirement
for a hand-held assistive device for prolonged ambulation further
accommodates her vertigo and problems with falling. The preclusions from
working at unprotected heights; operating hazardous, moving machinery;
and the driving accommodate the claimant’s vertigo, concentration deficits
secondary to pain, and potential medication side effects.
As for opinion evidence, I have considered and give[n] great weight to the
May 2015 opinion of James Sims, M.D., who reviewed the evidence of
record and indicates that the claimant can perform a range of light work.
This opinion is generally consistent with the overall evidence of record,
including the relatively normal examination findings from throughout the
record, as well as the claimant’s admitted and indicated activities and
abilities, which include gardening, driving, and performing some
household chores.
5

I give no weight to the September 2015 opinion of Chris Zandt, Physician
Assistant, as he is not a medically acceptable source, any opinion
regarding the claimant’s ability to work full-time in a competitive
environment is an opinion reserved to the Commissioner, and this opinion
is inconsistent with the relatively normal examination findings from
throughout the record, as well as the claimant’s admitted and indicated
activities and abilities.
Turning to the claimant’s mental impairments, the objective medical
findings and admitted activities and abilities support the limitation in 5,
above, that the claimant can perform simple, routine tasks consistent with
unskilled work with additional limitations related to social interactions and
attention and concentration.
The record includes physical treatment records that document the
claimant’s complaints of anxiety and depression, but also not[e] relatively
normal mental examination findings, including alertness and orientation.
June 2013 to April 2015 records from VA Gulf Coast include complaints of
sleep problems and nightmares, which led to diagnoses of a depressive
disorder and anxiety-related disorders, including post-traumatic stress
disorder (PTSD). Although the claimant received a global assessment of
functioning (GAF) score of only 50, mental examination findings were
essentially normal including proper alertness and orientation, intact
memory, intact attention and concentration, a euthymic mood, a pleasant
affect, good eye contact, cooperation, and good grooming with casual
dress.
Likewise, April to September 2015 records from VA Biloxi include
diagnoses for depression and PTSD, which were based on complaints of
no social life, marital problems, relationship problems, and problems
dealing with others, as well as examination findings that included
abnormal mood and dysthymic affect. These records also note, however,
that the claimant denied homicidal and suicidal ideations, and she
indicated that she was “doing okay.” Other examination findings also
revealed that she was in no acute distress, was alert and oriented, had
proper dress and grooming, had intact attention and concentration,
demonstrated appropriate eye contact, had a normal mood, and had intact
memory.
The aforementioned objective findings do not support a determination that
the claimant is disabled by her mental impairments. Although the
aforementioned records document the claimant’s diagnoses and treatment
for her mental impairments, a review of the overall evidence of record
includes a wealth of relatively normal mental examination findings,
6

including proper dress and grooming, intact attention and concentration,
intact memory, and proper mood and affect.
Additionally, the claimant’s admitted and indicated activities and abilities
undermine the severity of her symptomology resulting from her depression
and anxiety-related disorders, including PTSD. She has presented as
properly dressed and groomed on examination. She cares for her children,
shops, drives, performs some household chores, and is able to handle her
own finances. She gets along “as expected” with authority figures. She
lives with family and notes that she helps care for her children, who are 2
and 13 years old. She notes no problem with memory, completing tasks,
understanding, or following instructions. The claimant also indicates that
she can perform concentration intensive tasks that include caring for her
children, performing some household chores, preparing some meals,
handling her own finances, and driving. Further, she has an email
address, which indicates she has some computer proficiency.
The aforementioned objective findings and admitted and indicated
activities and abilities do not support a determination that the claimant is
completely disabled by her mental impairments. Instead, the relatively
normal examination findings from throughout the record, as well as the
indications and admissions that the claimant gardens, cares for her
children, and drives, all support a determination that the claimant can
perform jobs consistent with the limitations in Finding 5, above. The
limitation to short, simple, routine tasks, and the limitation to attending and
concentrating for two hours, after which she is expected to be off task for
approximately three minutes accommodate the moderate impact the
claimant’s mental impairments cause on her activities of daily living and
her concentration, persistence, and pace. The limitation to working in
customary proximity to coworkers; the preclusion from coordinating with
coworkers in order to complete her own tasks; and the limitation to
occasionally interacting with the public accommodates the moderate
impact the claimant’s mental impairments cause on her activities of daily
living and concentration, persistence, and pace. The record simply does
not support additional limitations.
As for mental opinion evidence, I have considered and give great weight
to the April 2015 opinion of Joanna Koulianos, Ph.D., who reviewed the
evidence of record and indicates that the claimant is able to perform
unskilled work with additional social limitations and limitation to attending
and concentrating for two-hour periods. This opinion is generally
consistent with the relatively normal examination findings from throughout
the evidence of record, as well as the claimant’s admitted and indicated
activities and abilities, which include caring for her children, gardening,
shopping, and driving.

7

I again note that the September 2015 opinion of Chris Zandt, a physician’s
assistant, comes from a non-acceptable medical source. Additionally, this
opinion is inconsistent with the relatively normal mental status examination
findings and the claimant’s admitted and indicated activities and abilities. It
is accordingly given little weight.
Over the course of the claimant’s treatment, she was assigned a global
a[ssessment] of functioning (GAF) score of 50. According to the
Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition)
(DSM-IV), a GAF score between 41 and 50 indicates serious symptoms
(e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or
any serious impairment in social, occupational, or school functioning (e.g.,
no friends, unable to keep a job, cannot work). According to the
Commissioner, however, GAF scores are but one tool used by clinicians
to develop the clinical picture and cannot be used in isolation from the rest
of the evidence to make a disability determination. In this case, the
claimant’s ability to care for two children, perform household chores,
garden, handle her own finances, and drive undermine any indicated
severity of low GAF scores. Furthermore, the Commissioner has
specifically declined to endorse the GAF scale for use in the disability
programs, and has stated that the GAF scale “does not have a direct
correlation to the severity requirements in our mental disorders listings.”
As a result, I give these GAF opinions no weight.
Finally, [w]ith regard to the claimant’s VA disability rating of 90 percent in
Exhibits 16E, 2F, and 7F, I am aware that VA disability ratings are entitled
to “great weight”. A fair reading of Brady [v. Heckler, 724 F.2d 914 (11th
Cir. 1984)], however, reveals that the Eleventh Circuit seemingly intended
that great consideration be given to the VA rating and the evidence on
which it was based, which is why that case, in which the claimant had a
disability rating of 100 percent, resulted only in remand for further
consideration, and not a decision that was reversed and rendered or a
decision finding that the veteran claimant was, in fact, disabled. This is
consistent with the fact that findings by other governmental agencies are
not binding on the Commissioner, and the Eleventh Circuit specifically
notes this also applies to VA disability ratings.
Further, the two agencies use completely different standards—a review of
the applicable sections of the Code of Federal Regulations reveals that all
reasonable doubt in VA disability cases is resolved in favor of the veteran
claimant, which is opposite of the process dictated in disability cases. In
this case, the VA disability rating is inconsistent with [] much of the
aforementioned objective medical evidence, while the residual functional
capacity [assessment] set forth above is consistent with the overall
evidence of record, including the VA medical records. Moreover, the
claimant’s acknowledged activities of daily living are not consistent with
8

the VA disability rating, which includes caring for her children, performing
some household chores, gardening, handling her own finances, and
driving. Accordingly, based on the overall evidence of record, I have given
the VA disability rating great consideration but determine that it is
inconsistent with the overall evidence of record.
In sum, based upon a review of the medical evidence of record and the
claimant’s admitted activities and abilities, I find the evidence does not
support
the
claimant’s
allegations
of
totally
incapacitating
symptomatology. The record fails to document persistent, disabling loss of
functional capacity resulting from the claimant’s severe impairments. The
above residual functional capacity assessment is supported by a
preponderance of the most credible evidence of record, including objective
evidence, opinion evidence, and the claimant’s indications and admissions
as to activities and abilities. After considering the entirety of the record, I
conclude that the claimant can perform a range of work consistent with
what is set forth in Finding 5, above.
(Tr. 30 & 31-36 (internal citations and footnotes omitted)).
II. Standard of Review and Claims on Appeal
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (1)
whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairments in the regulations; (4) if not, whether the claimant has the
RFC to perform her past relevant work; and (5) if not, whether, in light of
the claimant’s RFC, age, education and work experience, there are other
jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9,
2012)2 (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f);
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The
claimant bears the burden, at the fourth step, of proving that she is unable to perform
her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating
2

“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.

9

whether the claimant has met this burden, the examiner must consider the following four
factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age, education and work history.
Id. at 1005. Although “a claimant bears the burden of demonstrating an inability to return
to h[er] past relevant work, the [Commissioner of Social Security] has an obligation to
develop a full and fair record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
(citations omitted). If a plaintiff proves that she cannot do her past relevant work, as
here, it then becomes the Commissioner’s burden—at the fifth step—to prove that the
plaintiff is capable—given her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy. Phillips,
supra, 357 F.3d at 1237; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert.
denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764
F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform those sedentary,
unskilled jobs identified by the vocational expert at the administrative hearing, is
supported by substantial evidence. Substantial evidence is defined as more than a
scintilla and means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420,
28 L.Ed.2d 842 (1971). “In determining whether substantial evidence exists, we 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

10

(11th Cir. 1986).3 Courts are precluded, however, from “deciding the facts anew or reweighing the evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1,
2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And,
“’[e]ven if the evidence preponderates against the Commissioner’s findings, [a court]
must affirm if the decision reached is supported by substantial evidence.’” Id. (quoting
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158-1159 (11th Cir.
2004)).
On appeal to this Court, Love asserts two reasons why the Commissioner’s
decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1)
the ALJ erred in failing to assign adequate weight to the opinion of Chris Zandt, PA, , as
an “other source,” in accordance with 20 C.F.R. § 404.1513(d) and SSR 06-03p; and
(2) the ALJ reversibly erred in failing to fully consider the treatment records and opinions
of the Department of Veterans Affairs with respect to the VA’s rating decision of 70% for
Plaintiff’s PTSD, in violation of SSR 06-3p and 20 C.F.R. § 404.1504.
A.

Opinion of Chris Zandt, PA, an “Other Medical Source”. On

September 10, 2015, Chris Zandt, a physician’s assistant with the Department of
Veterans Affairs Gulf Coast Veterans Health Care System penned a “To whom it may
concern” opinion letter relative to her treatment of Plaintiff, as follows: “My patient,
Latashia Marieal Love, [] has been unemployed since April 1, 2015. The reason for her
unemployment is strongly because of her many physical and mental disabilities, for
which she is service connected disorder (sic). Due to the severity of her disabilities,

3

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

11

especially for the PTSD, which I am treating her for, it is my medical opinion that she
CAN NOT sustain or obtain employment. I agree with the U.S. Army, who medically
retired/separated her from service June 12, 2014 due to this disability[.] PTSD is
permanent and totally disabling.” (Tr. 445.)
Physicians’ assistants are excluded from the list of “acceptable medical sources”
whose opinions are to be considered in determining the existence of an impairment.
See, e.g., 20 C.F.R. § 404.1513(a) (2016). However, medical sources who are not
“acceptable medical sources” are considered “other sources” and their opinions and
evidence may be used “to show the severity” of an impairment and “how it affects [the]
ability to work[.]” See 20 C.F.R. § 404.1513(d) (physicians’ assistants included in
subsection (1)). Social Security Ruling 06-03p clearly provides that the factors listed in
20 C.F.R. § 404.1527(d) can be applied to opinion evidence from medical sources who
are not “acceptable medical sources,” including the following factors: (1) how long the
source has known the claimant and how frequently the source has seen the claimant;
(2) how consistent the source’s opinion is with other evidence; (3) the degree to which
the source presents relevant evidence to support the opinion; (4) how well the source
explains the opinion; (5) whether the source has a specialty or area of expertise related
to the individual’s impairments; and (6) any other factors that tend to support or refute
the source’s opinion. Id. The ruling goes on to explain that not every factor listed will
apply in every case. Id. And, finally, the ruling explains that the “adjudicator generally
should explain the weight given to opinions from [] ‘other sources,’ or otherwise ensure
that the discussion of the evidence in the . . . decision allows a . . . subsequent reviewer
to follow the adjudicator’s reasoning . . . .” Id.

12

With these principles in mind, the undersigned considers Plaintiff’s argument that
the ALJ erred in failing to assign adequate weight to the opinion of Chris Zandt, PA. In
particular, Plaintiff avers that Zandt’s opinion, which is set forth above, is consistent with
the medical evidence of record and should have been assigned significant weight since
it “revealed the severity of [her] PTSD and how it affected her ability to function[.]” (Doc.
9, at 7.) While the Plaintiff is correct in suggesting that a non-accepted medical source
like Zandt may well occupy a position which would qualify her to give an opinion
showing the severity of plaintiff’s impairments and how her impairments affect her ability
to work (see id.), this Court cannot agree with her suggestion that the ALJ failed to
accord Zandt’s opinion appropriate weight (id.). Instead, the Court finds that the ALJ
properly afforded Zandt’s opinion “no weight” and “little weight.” (Compare Tr. 33 with
Tr. 35.) The ALJ in this case twice evaluated Zandt’s opinion, once in that portion of her
opinion directed to Plaintiff’s physical impairments (see Tr. 33) and, again, in that
portion of the administrative decision directed to Plaintiff’s mental impairments (see Tr.
35). The analysis of the ALJ in the physical impairments portion of the administrative
decision consists of the following:
I give no weight to the September 2015 opinion of Chris Zandt, Physician
Assistant, as [s]he is not a medically acceptable source, any opinion
regarding the claimant’s ability to work full-time in a competitive
environment is an opinion reserved to the Commissioner, and this opinion
is inconsistent with the relatively normal examination findings from
throughout the record, as well as the claimant’s admitted and indicated
activities and abilities.
(Tr. 33 (internal citations omitted).) With respect to the mental impairments portion of
the administrative decision, the ALJ made the following determination:
I again note that the September 2015 opinion of Chris Zandt, a physician’s
assistant, comes from a non-acceptable medical source. Additionally, this
13

opinion is inconsistent with the relatively normal mental status examination
findings and the claimant’s admitted and indicated activities and abilities. It
is accordingly given little weight.
(Tr. 35.)
The undersigned finds that the ALJ properly rejected the opinion by Zandt that
Plaintiff is incapable of sustaining or maintaining employment because that is a
dispositive issue reserved to the Commissioner.4 Compare Kelly v. Commissioner of
Social Security, 401 Fed.Appx. 403, 407 (11th Cir. Oct. 21, 2010) (“A doctor’s opinion
on a dispositive issue reserved for the Commissioner, such as whether the claimant is
‘disabled’ or ‘unable to work,’ is not considered a medical opinion and is not given any
special significance, even if offered by a treating source[.]”) with Lanier v. Commissioner
of Social Security, 252 Fed.Appx. 311, 314 (11th Cir. Oct. 26, 2007) (“The ALJ correctly
noted that the opinion that Lanier was unable to work was reserved to the
Commissioner.”). And to the extent any other portion of Zandt’s opinion can be regarded
as a comment on the severity of Plaintiff’s PTSD or how it affects Plaintiff’s ability to
work5—presumably, the comment that Plaintiff’s PTSD is permanent and totally

4

Although this reason is contained in the “physical impairments” portion of the
ALJ’s decision, it is particularly applicable to the “mental impairments” portion of the decision
inasmuch as Zandt’s statement that Love is incapable of sustaining and maintaining
employment comes within the context of the sentence in which she specifically references
Plaintiff’s PTSD as the condition she is treating. (See Tr. 445.) And while the ALJ’s criticism of
Zandt’s opinion in this regard is not a specific “factor” listed in SSR 06-03p, it is an appropriate
criticism. Miles v. Social Security Administration, Commissioner, 469 Fed.Appx. 743, 745 (11th
Cir. Mar. 15, 2012) (“[A] medical source’s statement that a claimant is ‘unable to work’ or
‘disabled’ does not bind the ALJ, who alone makes the ultimate determination as to disability
under the regulations.”).
5

This Court cannot regard Zandt’s opinion that Plaintiff’s PTSD is permanent and
totally disabling as an opinion establishing how Love’s PTSD affects her ability to work,
inasmuch as it does not explain explicitly how her PTSD impacts certain mental activities
required to work, “such as limitations in understanding, remembering, and carrying out

(Continued)
14

disabling—the ALJ set forth several reasons for according Zandt’s opinion little weight,
in accordance with SSR 06-03p. See Montgomery v. Astrue, 2013 WL 3152278, *8
(N.D. Ala. Jun. 18, 2013) (“Here, the ALJ does not address every factor [listed in SSR
06-03p] as pointed out by Plaintiff; however, the ALJ was not required to explicitly
address every factor as long as the ALJ provides ‘”good cause” for rejecting a [nurse
practitioner’s] medical opinions.’”). In particular, the ALJ noted that Zandt’s opinion was
“inconsistent with the relatively normal mental status examination findings” in the record
(Tr. 35), which is an identified factor in SSR 06-03p, see id., citing 20 C.F.R.
404.1527(d)(2) (identifying as a factor, “how consistent the source’s opinion is with other
evidence”). Indeed, Zandt’s own records reflect mild mental status examination findings
(Tr. 349 (on February 19, 2015, Love denied any current psychiatric concerns and
Zandt made the following objective findings: “Mood is euthymic6 with pleasant
appropriate affect. Thought process and content is organized and logical with adequate
insight and judgment. Good eye contact with soft clear speech and relevant answers.”
(footnote added)); Tr. 549 (on September 10, 2015, Zandt made the exact same
observations as made on February 10, 2015, and noted that Love’s mood and anxiety
were “fairly well controlled with current treatment.”); Tr. 564 (on August 5, 2015, Zandt
noted that Love denied any current psychiatric concerns and noted the following

instructions, and in responding appropriately to supervision, co-workers, and work pressures in
a work setting[.]” See 20 C.F.R. § 404.1545(c) (2016).
6

Euthymic is defined as “pertaining to a normal mood in which the range of
emotions
is
neither
depressed
nor
highly
elevated.”
http://medicaldictionary.thefreedictionary.com/euthymic (last visited April 26, 2017, at 5:17 p.m.).

15

objective findings: “Mood is dysthymic7 with pleasant appropriate affect. Thought
process and content is organized and logical with adequate insight and judgment. Good
eye contact with soft clear speech and relevant answers.”)), as do other relevant
medical VA records (see, e.g., Tr. 504 (on October 2, 2015, Dr. Lisa Wurst, a
psychologist, noted the following with respect to mental status: “Veteran was dressed
properly and arrived on time. Veteran was oriented to person, place, time, and situation.
Veteran displayed an appropriate attitude toward the provider and rapport was quickly
and easily established. Veteran was able to reasonably attend to and concentrate
during the interview. Mood was reported as “hurting”; affect was dysthymic. Eye contact
was appropriate. Speech had a normal rate, volume and tone. Veteran DENIED current
suicidal/homicidal thoughts, plans, behaviors, or intent.”); Tr. 526, 528-29 & 531-32
(several notes from a VA psychology resident regarding Love’s failure to show for
appointments, contact being made with Plaintiff by telephone for rescheduling of
appointment, all containing language that Plaintiff “adamantly denied the experience of
suicidal and homicidal ideation, intent, plan, and means.”); Tr. 555 (within the context of
a general examination of Love conducted on September 4, 2015, the following
psychiatric observations were made: “Patient is alert & oriented x3, cooperative and in
no apparent distress. Adequately[]groomed, casually, appropriately attired. Eye contact
is good[.] Motor activity: normal[.] Concentration: intact[.] Speech is normal in rate,
volume, tone and prosody. There is no aphasia. Thought Processes are goal directed.
Thought Content reveals no suicidal or homicidal ideation. No perceptual disturbance.
7

Given that dysthymia is a form of depression less severe than major depression,
see http://www.health.harvard.edu/newsletter_article/Dysthymia (last visited April 27, 2017,
10:28 a.m.), it can be extrapolated that Zandt’s observation was that Love’s mood was mildly
depressed.

16

Mood/Affect: normal; Memory is intact to recent and remote events. Judgment/Insight is
good.”) & Tr. 585 (mental status on July 9, 2015, in connection with a C&P examination
of PTSD by Dr. Chad Hagans: “Well-groomed. Alert and fully oriented. Speech normal
in rate, tone, and syntax. Thought content and process unremarkable. Mood presented
as moderately labile with generally somewhat blunted affect, as though mildly fatigued
and/or sedated, though excessively reactive at times. No observable responsiveness to
internal stimuli. Hallucinations and delusions denied. Suicidal and homicidal ideation,
intent, and planning denied. No observable impairment in attention, concentration, or
memory.”)). In light of these mild psychiatric observations by VA care providers, the ALJ
did not err in affording Zandt’s conclusory letter opinion8 “little” (or “no”9) weight. Cf.
Kennedy v. Colvin, 2015 WL 1003845, *8 (N.D. Fla. Mar. 5, 2015) (“The ALJ gave ‘little
weight’ to the opinions of Ms. Breland because he found them ‘inconsistent with the
other evidence in the record.’ [] The ALJ also found that the ‘treatment notes from Ms.
Breland’s clinic, the Washington County Health Department, fail[ed] to reveal the type of
significant clinical and laboratory abnormalities one would expect if the claimant in fact
were disabled.’ [] The undersigned agrees that Ms. Breland’s opinions were entitled to
little weight. Not only are they inconsistent with and unsupported by other evidence in
8

The undersigned parenthetically emphasizes that Zandt’s
conclusory, that is, she did not explain it well, see 20 C.F.R. § 404.1527(d)(4).
9

opinion

was

This Court finds that the ALJ appropriately gave no weight to Zandt’s conclusory
medical opinion to the extent it could be broadly read to apply to the “physical disabilities” she
references in the second sentence, given that the remaining sentences of the opinion make no
mention of any specific physical impairments and certainly make no comment with respect to
the severity of those unidentified physical impairments or how (exactly) those unidentified
impairments affect Love’s ability to work (Tr. 445). See 20 C.F.R. § 404.1513(d) (providing only
that the ALJ may use evidence from “other sources to show the severity of [a claimant’s]
impairment(s) and how it affects [a claimant’s] ability to work.”). In other words, the ALJ was not
required to utilize Zandt’s opinion with respect to the evaluation of Love’s physical impairments.

17

the record, but like Dr. Harmon-Sheffield’s opinions, they also were conclusory and
expressed on pre-printed check-off forms.”).10
B.

Disability Rating Decision of the Department of Veterans

Affairs.

Love contends that the ALJ reversibly erred in failing to fully consider the treatment
records and opinions of the Department of Veterans Affairs with respect to the VA’s
rating decision of 70% for her PTSD, in violation of SSR 06-3p and 20 C.F.R. §
404.1504.11 In particular, the Plaintiff disagrees with the ALJ’s determination that the
VA’s disability rating was inconsistent with the medical evidence of record and Plaintiff’s
reported activities of daily living. (See Doc. 9, at 8-10.)
On September 4, 2013, the Department of Veterans Affairs notified Love that her
“overall or combined” service-connected disability was 90% (Tr. 283), based upon the
following service-connected conditions: PTSD with depressive disorder NOS and pain
disorder (70%); migraine headaches (50%); lumbar strain with right lower radiculopathy
(40%); and hypertrophy of the turbinates (10%). (Id.) The VA explained to Plaintiff that
in reaching the combined rating of 90%, it did not “add the individual percentages of
each condition”; instead, it “used a combined rating table that considers the effect from
the most serious to the least serious conditions.” (Id.)

10

The lack of significant psychiatric observations by Love’s VA caregivers is a
sufficient enough reason, standing alone, for the ALJ to accord Zandt’s opinion “little” weight,
without regard to the reference to Plaintiff’s “admitted and indicated activities and abilities.” (Tr.
35.)
11

Section 404.1504 provides that “[a] decision by any . . . other governmental
agency about whether [a claimant is] disabled . . . is based on its rules and is not [the SSA’s]
decision about whether [the claimant is] disabled . . . . We must make a disability . . .
determination based on social security law. Therefore, a determination made by another agency
that [a claimant is] disabled . . . is not binding on [the SSA].” Id.

18

The Eleventh Circuit has recognized that although a disability rating decision by
the Veterans Administration is not “binding” on the ALJ, such a rating is entitled to
“’great weight[.]’” Pearson v. Astrue, 271 Fed.Appx. 979, 981 (11th Cir. Apr. 1, 2008),
citing Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984); see also Kemp v. Astrue,
308 Fed.Appx. 423, 426 (11th Cir. Jan. 26, 2009) (“’A VA rating is certainly not binding
on the Secretary, but it is evidence that should be considered and is entitled to great
weight.’”); see Rodems ex rel. Rodems v. Colvin, 2014 WL 795966, *4 (N.D. Ala. Feb.
27, 2014) (“An ALJ is obligated to consider a disability rating assigned by another
agency, not just the medical records behind the rating, but there is no obligation to
agree with the rating.”). Moreover, as noted in Kemp, supra, “[t]he ALJ must ‘state
specifically the weight accorded to each item of evidence and why he reached that
decision.’” 308 Fed.Appx. at 426, quoting Cowart v. Schweiker, 662 F.2d 731, 735 (11th
Cir. 1981).
In this case, although the ALJ did not explicitly identify the “type” weight (that is,
great, significant, little, none) she was according the VA disability rating in her decision,
she implicitly signaled that she was affording the rating little weight, in light of her
explanation that she had given the disability rating “great consideration” and determined
that “it [was] inconsistent with the overall evidence of record.” (Tr. 36.) The ALJ’s
decision makes clear that she reached this conclusion not only because “[t]he two
agencies use completely different standards” (id.)12 but also because her (the ALJ’s)

12

The standard for VA disability is not the same as the standard for disability under
the Social Security Act. Compare Kemp, supra, 308 Fed.Appx. at 426 (“The SSA regulations
specify that a decision by any non-governmental or governmental agency about whether an
individual is disabled is based on its own rules and does not constitute a SSA decision about
whether an individual is disabled.” (citation omitted)) with Pearson, supra, 271 Fed.Appx. at 981

(Continued)
19

RFC assessment of unskilled sedentary work (including that Love can only perform
short, simple, routine tasks; can work in close proximity with coworkers but is unable to
coordinate with coworkers in order to complete her own tasks; can have only occasional
interaction with the public; and the ability to attend and concentrate for 2 hours, after
which she must be “off task” for 3 minutes before resuming work tasks) was “consistent
with the overall evidence of record, including the VA medical records.” (Id.; see also id.
(“Moreover, the claimant’s acknowledged activities of daily living are not consistent with
the VA disability rating, which includes caring for her children, performing some
household chores, gardening, handling her own finances, and driving.”)).
While this Court does not necessarily disagree with Plaintiff that the ALJ in this
case failed to take into consideration the full scope of her testimony regarding her
“acknowledged activities” (see Doc. 9, at 8-10),13 any error in the ALJ’s reliance on this
reason to accord little weight to the disability rating is harmless inasmuch as the Court
agrees with the ALJ that the medical evidence of record in this case, including the VA
records,14 is inconsistent with the VA’s disability rating and, instead, supports the ALJ’s

(“The record establishes that the administrative law judge considered the rating in his decision
and correctly explained that a claimant had to satisfy a more stringent standard to be found
disabled under the Social Security Act.” (citations omitted)).
13

The undersigned would note, however, that the ALJ’s analysis in this regard did
not totally “miss the mark” inasmuch as Plaintiff unequivocally reported that she was able to
handle her finances (Tr. 184 (Love reported she could pay bills, count change, handle a savings
account, and use checks and money orders)), an ability which is unequivocally supported in the
record (see, e.g., Tr. 588 (as part of the July 9, 2015 C&P examination of Love’s PTSD, Dr.
Chad Hagans noted Plaintiff was capable of managing her financial affairs)).
14

The undersigned notes that that ALJ made numerous references to the VA
records, upon which the VA disability rating was based, in the course of making her own
determination that Love was not disabled (see Tr. 31-32 & 34). See Adams v. Commissioner of
Social Security, 542 Fed.Appx. 854, 857 (11th Cir. Oct. 24, 2013).

(Continued)
20

RFC determination, and ultimate finding of no disability. In particular, given Plaintiff’s
focus on the 70% rating for PTSD (see Doc. 9, at 9),15 the Court notes that the mild
psychiatric findings recorded by Love’s VA caregivers (see Tr. 349, 503, 526, 528-29,
531-32, 549, 555, 564 & 585) are inconsistent with the PTSD disability rating of 70%16
and entirely consistent with the ALJ’s determination that claimant retains the RFC to
perform a range of unskilled sedentary work that requires the ability to perform only
short, simple, routine tasks, work in close proximity with coworkers that would not
require coordination with coworkers in order to complete tasks, only occasionally have

15

Plaintiff’s counsel also stated during oral arguments that this assignment of error
was primarily directed to Love’s mental disability rating.
16

Indeed, the VA physician who conducted the C&P examination of Love’s mental
impairments on July 9, 2015, Dr. Chad Hagans, noted that based solely on Plaintiff’s
subjectively-reported functional impairment, the claimant would most likely have 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, or []
symptoms controlled by medication.” (Tr. 582 (emphasis supplied); see also id. (“The
Veteran’s current level of occupational and social impairment cannot be determined
without resort to mere speculation (i.e., to a reasonable degree of professional certainty),
due to objectively assessed response bias in the current exam [], and the absence of
corroborative information regarding the Veteran’s reported functioning from impartial third
parties in the records made available by the referral source. VA policy prohibits the undersigned
from obtaining information beyond that which was included in the records made available by the
referral source.” (emphasis supplied)); compare id. with Tr. 585-86 (“Objectively assessed
response bias in the current exam (Rey Word Recognition score=5; and a score that
exceeded the recommended cut score on a two-alternative forced-choice test) precluded a
valid psychometric assessment of the Veteran’s current symptomatology. The above
diagnosis of PTSD is therefore based on the Veteran’s medical records exclusively. PTSD
symptoms checked below were those endorsed by the Veteran on the PCL-5 as ‘moderate’ or
more severe during the past month. In the presence of an external incentive, and in the
absence of the provision of or the ability to obtain additional information regarding the Veteran’s
psychological functioning from impartial third parties, the validity of Veteran’s symptom
endorsement on the PCL-5 is considered unknown and unable to be determined to a
reasonable degree of professional certainty.” (emphasis supplied)). Accordingly, the records
from Dr. Hagans support the ALJ’s ultimate determination that Plaintiff is mentally capable of
performing work activity.

21

interaction with the general public, and the ability to attend and concentrate for 2 hours,
after which she will be “off task” for 3 minutes before resuming work tasks.17
Accordingly, the Court cannot find that the ALJ erred in the manner described by Love
inasmuch as the ALJ fairly considered the treatment records and opinions of the VA
with respect to that department’s 70% PTSD disability rating.
In light of the foregoing and because substantial evidence of record supports the
Commissioner’s determination that Love can perform the physical and mental
requirements of a range of sedentary work as identified by the ALJ (see Tr. 30; compare
id. with Tr. 349, 370-71, 373, 435-37, 477, 479, 503, 526, 528-29, 531-32, 547, 549,
17

To the extent necessary, the Court also notes that the ALJ’s determination that
Love can perform the exertional requirements of a range of sedentary work (see Tr. 30 (“She
can lift and carry 10 pounds occasionally. She can stand or walk 2 hours per eight-hour
workday and sit for 6 hours per eight-hour workday, with customary breaks. She can
occasionally stoop, but is precluded from climbing, kneeling, crouching, and crawling.
She is precluded from working at unprotected heights; operating hazardous, moving
equipment, or driv[ing]. She is precluded from exposure to loud noises or noxious
chemical fumes or gases. She is precluded from pushing and pulling leg and foot
controls. She requires a hand-held assistive device for prolonged ambulation (more than
three minutes) on uneven terrain. She cannot work around light above the office level,
and cannot operate vibratory equipment.”)) is consistent with the medical evidence of record
regarding Plaintiff’s physical impairments (compare id. with, e.g., Tr. 370-71; Tr. 373 (on
examination on April 29, 2014, Plaintiff denied acute pain or discomfort and reported that she
had not fallen since her previous visit); Tr. 435-37 (MRI of the lumbar spine in June of 2013
showed no degenerative arthritic spurring in the disk spaces or facet joints but partial
sacralization of L5, with fusion on the left and a January 2015 MRI of the left hip reflected the
partial sacralization left L5 with pseudoarticulation L5-S1); Tr. 477 & 547 (September 14, 2015
report of no pain); Tr. 479 (July 22, 2015 report of no pain); 573-74 (examination on July 22,
2015, revealed Love was in no acute distress, her gait and station were without abnormality, full
range of motion of back with some pain, and tender to palpitation at L4-5); Tr. 595 (notation in
June 25, 2015 C&P examination that a February 18, 2015 MRI of the lumbar spine was
normal—the vertebral bodies and intervertebral discs were normal—with no evidence of canal
or neuroforaminal stenosis; the spinal cord demonstrated normal signal and the soft tissues and
osseous structures were normal); Tr. 594-601 (questionnaire completed by Dr. Brett E. Jeffrey
as part of his June 25, 2015 C&P examination of Plaintiff’s thoracolumbar spine revealed few
significant physical findings, with the examiner concluding that her back condition—described by
him as lumbosacral strain with radiculopathy—would not impact her ability to work because of
minimal functional impairment—ROM close to normal, normal MRI, and normal lower extremity
nerve conduction study) & Tr. 608 (April 27, 2015 examination reflected that though Love
complained of low back pain, she was in no acute distress).

22

555, 564, 573-74, 585, 594-601 & 608), and plaintiff makes no argument that this
residual functional capacity would preclude her performance of the sedentary jobs
identified by the VE during the administrative hearing (compare Doc. 9 with Tr. 73-74),
the Commissioner’s fifth-step determination is due to be affirmed. See, e.g., Owens v.
Commissioner of Social Security, 508 Fed.Appx. 881, 883 (11th Cir. Jan. 28, 2013)
(“The final step asks whether there are significant numbers of jobs in the national
economy that the claimant can perform, given h[er] RFC, age, education, and work
experience. The Commissioner bears the burden at step five to show the existence of
such jobs . . . [and one] avenue[] by which the ALJ may determine [that] a claimant has
the ability to adjust to other work in the national economy . . . [is] by the use of a
VE[.]”(internal citations omitted)); Land v. Commissioner of Social Security, 494
Fed.Appx. 47, 50 (11th Cir. Oct. 26, 2012) (“At step five . . . ‘the burden shifts to the
Commissioner to show the existence of other jobs in the national economy which, given
the claimant’s impairments, the claimant can perform.’ The ALJ may rely solely on the
testimony of a VE to meet this burden.” (internal citations omitted)).
CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be affirmed.
DONE and ORDERED this the 19th day of May, 2017.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

23