Denton v. Colvin

Filing 27

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 8/24/2017. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KRISTINA M. DENTON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.

)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 16-0423-MU

MEMORANDUM OPINION AND ORDER
Plaintiff Kristina M. Denton brings this action, pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), seeking judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”) denying her claim for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the
Act”) and for Supplemental Security Income (“SSI”), based on disability, under
Title XVI of the Act. 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. 24 (“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. 25).
Upon consideration of the administrative record, Denton’s brief, the

1
Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure
and 42 U.S.C. § 405(g), Nancy A. Berryhill is substituted for former Acting
Commissioner Carolyn W. Colvin as the defendant in this action.

Commissioner’s brief, and oral argument presented at the August 15, 2017
hearing before the undersigned Magistrate Judge, it is determined that the
Commissioner’s decision denying benefits should be affirmed.2
I. PROCEDURAL HISTORY
Denton applied for DIB, under Title II of the Act, 42 U.S.C. §§ 423 - 425,
and for SSI, based on disability, under Title XVI of the Act, 42 U.S.C. §§ 13811383d, on August 19, 2013, alleging disability beginning on May 1, 2012.
(Tr.165-69, 170-75). Her application was denied at the initial level of
administrative review on October 7, 2013. (Tr. 87-92). On October 24, 2013,
Denton requested a hearing by an Administrative Law Judge (ALJ). (Tr. 103-04).
After a hearing was held on December 10, 2014, the ALJ issued an unfavorable
decision finding that Denton was not under a disability from the date the
application was filed through the date of the decision, February 23, 2015. (Tr.1829). Denton appealed the ALJ’s decision to the Appeals Council, and, on June
29, 2016, the Appeals Council denied her request for review of the ALJ’s
decision, thereby making the ALJ’s decision the final decision of the
Commissioner. (Tr. 1-3, 9).
After exhausting her administrative remedies, Denton sought judicial
review in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The
Commissioner filed an answer and the social security transcript on November 7,

2
Any appeal taken from this Order and Judgment shall be made to the Eleventh
Circuit Court of Appeals. See Doc. 24. (“An appeal from a judgment entered by a
Magistrate Judge shall be taken directly to the United States Court of Appeals for
the judicial circuit in the same manner as an appeal from any other judgment of
this district court.”).

2

2016. (Docs. 11, 12). Both parties filed briefs setting forth their respective
positions. (Docs. 13, 21). Oral argument was held before the undersigned
Magistrate Judge on August 15, 2017. The case is now ripe for decision.
II. CLAIMS ON APPEAL
Denton alleges that the ALJ’s decision to deny her benefits is in error for
the following reasons:
1. The ALJ erroneously concluded that Denton’s ankle strain and right middle
trigger finger were not severe impairments;
2. The ALJ erred in finding that the Commissioner proved that there is other work
in significant numbers in the national economy that Denton can perform given the
assigned residual functional capacity (RFC); and
3. The ALJ erroneously relied upon a non-examining reviewing physician’s
opinion to support the RFC assigned to Denton.
(Doc. 13 at p. 2).
III. BACKGROUND FACTS
Denton was born on September 4, 1981, and was almost 32 years old at
the time she filed her claim for benefits. (Tr. 165). Denton alleged disability due to
right shoulder bursitis, right wrist tendonitis, bursitis of the hips, bilateral ankle
strain, trigger finger on her right middle finger, fibromyalgia, GERD, bipolar
disorder, and personality disorder. (Tr. 20-21). She graduated from high school
and took courses towards an associate’s degree. (Tr. 40). She worked as a
petroleum supply specialist in the fuel and aviation unit when she was in the
military from 2005 until 2009. (Tr. 40). In addition to that work, she has worked as

3

a server, cook, and manager at various restaurants. (Tr. 40-41). Denton last
worked on May 1, 2012. (Tr. 40). Denton testified that she has good days and
bad days. On her good days, Denton engages in normal life activities; such as,
handling her personal care, taking care of her five-year old twins, cleaning her
house, baking, running errands, socializing with family, taking her twins to the
park or other activities, and practicing ball with her twins. (Tr. 47). On her bad
days, she has to have help with her children and cannot do all of these activities.
(Tr. 41, 48). After conducting a hearing, the ALJ made a determination that
Denton had not been under a disability during the relevant time period, and thus,
was not entitled to benefits. (Tr.16-41).
IV. ALJ’S DECISION
After considering all of the evidence, the ALJ made the following findings
that are relevant to the issues presented in his March 23, 2015 decision:
3.
The claimant has the following severe impairments: bipolar
disorder; personality disorder; fibromyalgia; right shoulder bursitis;
right wrist tendonitis; and bursitis of the hips (20 CFR 404.1520(c)
and 416.920(c)).
These impairments are established by the material evidence, which will
be discussed in more detail below, and impose more than minimal
limitations on the claimant's ability to perform basic work-related
activities. Therefore, these impairments are considered to be severe
within the meaning of the Regulations.
The claimant also has the following non-severe impairments, which
when considered singly and in combination, do not cause more than a
minimal limitation in the ability to perform basic work activity: right
middle trigger finger; history of bilateral ankle injuries; and
gastroesophogeal reflux disease (GERD).
At the hearing, the claimant testified that the Department of Veterans
Affairs (VA) was referring her for treatment for trigger finger on her right
middle finger. Records also show that she was given a splint. (Exhibit

4

3F, page 33) However, x-rays taken in November 2012 are negative,
and the record does not show ongoing complaints related to this
condition. (Exhibit 3F, page 10) Therefore, the claimant's alleged
trigger finger does not affect her ability to perform basic work activity
and is non-severe.
The claimant also testified to a 10% VA disability rating for both of her
ankles secondary to stress fractures. In August 2013, the claimant
underwent a Compensation and Pension (C&P) Examination at the VA
Medical Center in Birmingham. Examination findings were grossly
normal, and x-rays were unremarkable. The report shows a diagnosis of
ankle strain and concludes that her ankle condition does not impact her
ability to work. (Exhibit 3F, page 2, 44-51) Therefore, the claimant's
alleged bilateral ankle impairments are non-severe.
Records also show that the claimant has been diagnosed with GERD.
Nevertheless, the record does not show any ongoing treatment for this
condition and the August 2013 C&P evaluation finds that this impairment
does not have any impact on the claimant's ability to work. (Exhibit 3F,
page 40-44) Accordingly, the undersigned finds the claimant's GERD
non-severe.
***
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except she can occasionally stoop,
kneel, crouch, crawl, and climb ramps and stairs. She should
not work at unprotected heights, around hazardous
machinery, or operate automotive equipment and should
never climb ladders, ropes, or scaffolds. She should never
reach overhead with the right upper extremity, but can
occasionally push/pull arm controls with the right upper
extremity and can occasionally handle with the dominant right
hand. The claimant is able to understand and carry out
detailed, but uninvolved, written or oral instructions involving
a few concrete variables in or from standardized situations.
She can tolerate occasional contact with the general public
and can occasionally adapt to minimal changes in the work
setting or routine. She is able to maintain attention and
concentration for up to two hours at a time and can perform
goal oriented work, rather than production pace work.

5

In making this finding, the undersigned has considered all symptoms
and the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence,
based on the requirements of 20 CFR 404.1529 and 416.929 and SSRs
96-4p and 96-7p. The undersigned has also considered opinion
evidence in accordance with the requirements of 20 CFR 404.1527 and
416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
***
At the hearing, the claimant testified to ongoing right shoulder
and wrist pain. She reported that physical therapy has been
recommended for her shoulder, and that she must use her left
non-dominant hand to lift a gallon of milk. She also testified that
she has difficulty grasping the steering wheel or holding a video
game controller. Regarding her recent diagnosis with
fibromyalgia, the claimant testified to having good days and bad
days. She states that on a bad day, she is bedridden and needs
her neighbors to help care for her children. She reports taking
multiple medications to control her pain. Otherwise, the claimant
alleges disability due to bipolar disorder, and testified to manic
episodes and panic attacks.
After careful consideration of the evidence, the undersigned
finds that the claimant 's medically determinable impairments
could reasonably be expected to cause some of the alleged
symptoms; however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are
not entirely credible for the reasons explained in this decision.
In terms of the claimant's alleged right shoulder pain, a May 2013
MRI shows mild subacromial- subdeltoid bursal complex fluid,
with a clinical correlation for bursitis, and mild cuff tendinosis.
At the August 2013 C&P examination, the claimant reported
chronic shoulder pain and limited range of motion. Examination
findings revealed tenderness to palpation and guarding with
decreased strength of 4/5 on abduction and forward flexion.
Furthermore, the claimant's posterior shoulder joint musculature
showed some localized atrophy with slight downsloping.
Accordingly, the VA concluded that the claimant should be
limited to no heavy lifting. (Exhibit 3F, page 3, 59-68)
The claimant has also been diagnosed with tendonitis in the
right wrist. The August 2013 C&P examination showed some

6

crepitations, but findings were otherwise mild. The claimant
demonstrated 4/5 strength and a full range of motion with pain
noted only at 60 degrees of dorsiflextion. Diagnostic imaging of
the claimant's wrist was also unremarkable. Based on these
findings, the VA found that the claimant's wrist condition does
not impact her ability to work. (Exhibit 3F, page 3, 69-74)
The undersigned accounts for the claimant 's shoulder pain
and wrist tendonitis with a residual functional capacity for a
reduced range of light work, lifting no more than 20 pounds.
Furthermore, in giving full credit to the claimant 's complaints of
pain, she should not lift overhead on the right, should only
occasionally push/pull with the right upper extremity, and only
occasionally handle with the dominant right hand. However,
greater limitations are not warranted as examination findings
are for the most part mild. Furthermore , the VA did not assess
any limitations on the claimant's functioning beyond restrictions
on heavy lifting.
Regarding the claimant's bilateral hip pain, records show a
diagnosis of bursitis on the right. The August 2013 C&P
examination revealed localized tenderness and pain to palpation
of the right hip and some pain with range of motion. However,
otherwise, the claimant showed full strength on flexion,
abduction, and extension, and November 2012 x-rays were
negative. Accordingly, the VA found that the claimant 's hip
condition does not impact her ability to work. (Exhibit 3F, page
5, 52-59) Nevertheless, in viewing the evidence in a light most
beneficial to the claimant, the undersigned limits her to only
occasional postural activities to account for any pain that may
be caused by her hips. Again, greater limitations are not
warranted based on mild objective findings and the VA's
assessment of no limitations secondary to her hip impairment.
Following the claimant's August 2013 evaluation, she did not
return to the VA medical center with complaints of joint pain
until April 2014. At that time, examination revealed 16 of 18
tender trigger points, and accordingly, she was diagnosed with
chronic pain, which appeared to be fibromyalgia. (Exhibit 6F)
Treatment was conservative through a trial of gabapentin, and
she was not referred for specialized treatment. Thereafter, the
record does not show any further complaints related to
fibromyalgia, aside from an initial consultation at the VA medical
center in Mobile in July 2014, after the claimant moved. (Exhibit

7

8F)
The undersigned finds a residual functional capacity for a
reduced range of light work is sufficient to address the
claimant's positive trigger points. Otherwise, the undersigned
limits the claimant to simple, unskilled, goal oriented work to
accommodate any distraction the claimant may experience
secondary to pain. Otherwise, the residual functional capacity
includes limitations on climbing, heights, driving, and
hazardous machinery to account for medication side effects.
Regarding the claimant's mental impairments, in March 2013,
the claimant initiated bi-weekly outpatient mental health
treatment at the VA Medical Center in Birmingham. Initially,
she showed significant psychological distress with generally
low GAF scores ranging from 45-52. (Exhibit 3F, page 27-31,
223-236) However, by June 2013, she reported feeling much
better with a stabilized mood.
Thereafter, progress notes generally indicate only moderate
distress, and she typically presented fully oriented with a friendly
demeanor. Mental status examination findings were also
generally within normal limits showing good attention and
concentration, intact memory, and normal thought content.
(Exhibit 3F, page 1S7-178)
Although records show ongoing reports of mood swings, stress,
irritability, and panic attacks, the claimant's complaints are
typically attributable to outside stressors such as caring for her
children, her applications for disability benefits, or the deaths of
loved ones. (Exhibit 4F, 5 F, 8F) In February 2014, the claimant
requested to decrease the frequency of her sessions to once
per month, and her psychologist agreed due to her “stability.”
(Exhibit 5F, page 17)
The undersigned has accounted for the claimant's manic
episodes and panic attacks with limitations to unskilled work
and only occasional contact with the public. This degree of
limitation is consistent with updated GAF scores ranging from
55-62. (Exhibit 3F, 147-1S8, 4F, 5F, 6F) To the extent these
scores constitute an opinion, they are given some weight, as
they indicate mild to moderate symptoms, which is consistent
with the findings on mental status examination, discussed
above.

8

Otherwise, the undersigned assigns little weight to the
claimant's GAF of 50 during her 2009 hospitalization and
scores ranging from 45-52 in the period immediately after she
initiated psychological treatment. (Exhibit IF, 3F, page 184236) These low scores were given before the alleged onset
date or in the months after she initiated professional mental
health treatment.
Furthermore, the record shows an improvement of the
claimant's condition through treatment. Because GAF scores
offer only a mere snapshot of the claimant's functioning at the
time of the exam, these scores are not indicative of the
claimant's overall level of functioning throughout the period at
issue.
As for the opinion evidence, the undersigned assigns great
weight to the October 2013 opinion from Dr. Estock, which finds
the claimant able to understand and remember simple
instructions, but not detailed ones; carry out simple instructions
and sustain attention to routine tasks for extended periods;
tolerate ordinary work pressures, but should avoid quick
decision making, rapid changes, and multiple demands; would
benefit from regular rest breaks and a slowed pace, but will still
be able to maintain a work pace consistent with the mental
demands of competitive level work; contact with the public
should be casual; feedback should be supportive; and the
claimant can adapt to infrequent, well explained changes.
(Exhibit 3A, 4A) These limitations are for the most part
consistent with the medical evidence of record as a whole,
discussed in greater detail above. Although the claimant has a
history of mood swings and panic attacks, her presentation and
performance on mental status exam are typically within normal
limits, and treatment has been routine and conservative.
Dr. Estock limited the claimant to simple, but not detailed,
instructions; however, the undersigned finds the claimant able
to understand and carry out detailed but uninvolved
instructions. Despite reports of mood swings and manic
episodes, examination findings reflecting [sic] normal attention
and concentration. The undersigned finds Dr. Estock's opinion
that the claimant is able to sustain attention for extended
periods and is able to maintain a work pace consistent with the
mental demands of competitive level work consistent with the

9

ability to maintain attention and concentration for up to two
hours at a time. Otherwise, the limitation to occasional contact
with the general public accounts for the claimant's history of
panic attacks, and goal oriented, as opposed to production
pace work, accounts for any difficulty the claimant may have
tolerating work pressures and Dr. Estock's finding that she
should avoid rapid changes and multiple demands and would
benefit from a slowed pace.
The VA also evaluated the claimant 's mental impairments in
August 2013. She was assessed with a mood disorder, not
otherwise specified and a GAF of 62. Based on an in-person
examination and review of records, the report concludes that the
claimant has an occupational and social impairment with
occasional decrease in work efficiency and intermittent periods
of inability to perform occupational tasks, although generally
functioning satisfactorily with normal routine behavior, self-care,
and conversation. Furthermore, cluster B features likely impact
the claimant's ability to cope with stress and manage emotions,
which leaves her more vulnerable to develop psychological
difficulties during times of stress. (Exhibit 3F, page 86-88, 147149)
The undersigned also assigns great weight to this opinion, as
it is also consistent with a significant reduction in skill and
interaction. Furthermore, to account for cluster B features,
which impact the claimant's ability to handle stress, the
claimant should only occasionally adapt to minimal changes in
the work setting. This restriction is also consistent with Dr.
Estock 's finding that the claimant should be able to adapt to
infrequent, well explained changes.
Greater mental limitations are not warranted based on the medical evidence
of record as a whole. As noted above, the claimant's level of care is not
what would be expected of someone with the degree of impairment
alleged. After initiating routine mental health treatment in March 2013, her
mood disorder was controlled conservatively with medication, and by
February 2014, her treating psychologist agreed to decrease the frequency
of her counseling from bi-weekly to monthly due to her stability. Otherwise,
the claimant's activities of daily living are not consistent with a disabling
mental impairment. She is the custodial parent for her five year old twins,
one of which has special needs. She is independent in self-care, able to
wash dishes, do laundry, clean the tub and take her children to the park
and to play baseball.

10

Otherwise, the undersigned also assigns great weight to the August 2013
C&P examination findings, which are consistent with a residual functional
capacity for a reduced range of light work. As noted above, the
examination concluded that the claimant 's right shoulder bursitis limits her
to no heavy lifting, however her remaining alleged impairments, such as
right hip bursitis and right hand tendonitis, do not limit her ability to work.
Nevertheless , the undersigned has considered the pain caused by these
conditions in assessing postural and hazard limitations as well as
limitations on using the right upper extremity. (Exhibit 3F, page 38-74)
Finally, the undersigned has considered a third party function report
submitted by the claimant's roommate. (Exhibit 5A) Although he is not an
acceptable medical source, his report must be considered per Social
Security Ruling 06-03p to show the severity of the claimant's impairments
and how they affect her ability to function . The undersigned gives this
statement some weight, as it is generally consistent with the claimant's
reporting of her own daily activities, and shows that the claimant is
independent in self-care, able to interact appropriately with others, and has
adequate focus to read, crochet, and manage her own finances.
***

10. Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy that
the claimant can perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).
In determining whether a successful adjustment to other work can be
made, the undersigned must consider the claimant's residual functional
capacity, age, education, and work experience in conjunction with the
Medical-Vocational Guidelines, 20 CPR Part 404, Subpart P, Appendix 2.
If the claimant can perform all or substantially all of the exertional
demands at a given level of exertion, the medical-vocational rules direct
a conclusion of either "disabled" or "not disabled" depending upon the
claimant's specific vocational profile (SSR 83-11). When the claimant
cannot perform substantially all of the exertional demands of work at a
given level of exertion and/or has nonexertional limitations, the medicalvocational rules are used as a framework for decisionmaking unless there
is a rule that directs a conclusion of "disabled" without considering the
additional exertional and/or nonexertional limitations (SSRs 83-12 and
83-14). If the claimant has solely nonexertional limitations, section
204.00 in the Medical-Vocational Guidelines provides a framework for
decisionmaking (SSR 85-15).

11

If the claimant had the residual functional capacity to perform the full

range of light work, a finding of "not disabled" would be directed by
Medical-Vocational Rule 202.21. However, the claimant's ability to
perform all or substantially all of the requirements of this level of work
has been impeded by additional limitations. To determine the extent to
which these limitations erode the unskilled light occupational base, the
Administrative Law Judge asked the vocational expert whether jobs exist
in the national economy for an individual with the claimant's age,
education, work experience, and residual functional capacity. The
vocational expert testified that given all of these factors the individual
would be able to perform the requirements of representative
occupations such as sandwich board carrier (DOT 299.687-014), which
is light with an SVP 1 with 100,000 jobs in the national economy;
school crossing guard (DOT 371.567-010), which is light with an SVP 2
with 100,000 jobs in the national economy; and school bus monitor
(DOT 372.667-042), which is light with an SVP 2 with 80,000 jobs in the
national economy.
Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert's testimony is consistent with the information contained
in the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant's age, education, work
experience, and residual functional capacity, the claimant is capable of
making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of "not disabled" is
therefore appropriate under the framework of the above-cited rule.
(Tr. 20-21, 23-28).
V. DISCUSSION
Eligibility for DIB and SSI benefits requires that the claimant be disabled.
42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if the claimant is
unable “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

12

not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The
impairment must be severe, making the claimant unable to do the claimant’s
previous work or any other substantial gainful activity that exists in the national
economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-11. “Substantial gainful
activity means work that … [i]nvolves doing significant and productive physical or
mental duties [that] [i]s done (or intended) for pay or profit.” 20 C.F.R. §
404.1510.
In all Social Security cases, an ALJ utilizes a five-step sequential
evaluation in determining whether the claimant is disabled:
(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
Impairment 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. Comm’r of Soc. Sec., 457 F. App’x 868, 870 (11th Cir. 2012) (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 of proving the first four steps, and if the claimant does
so, the burden shifts to the Commissioner to prove the fifth step. Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999).
If the claimant appeals an unfavorable ALJ decision, the reviewing court
must determine whether the Commissioner’s decision to deny benefits was
“supported by substantial evidence and based on proper legal standards.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations

13

omitted); see 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Winschel, 631 F.3d at 1178 (citations omitted). “In
determining whether substantial evidence exists, [the reviewing 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). The reviewing court “may not decide the facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].”
Id. When a decision is supported by substantial evidence, the reviewing court
must affirm “[e]ven if [the court] find[s] that the evidence preponderates against
the Secretary’s decision.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986).
As set forth above, Denton has asserted three grounds in support of her
argument that the Commissioner’s decision to deny her benefits is in error. The
Court will address Denton’s contentions in the order in which they correspond to
the sequential evaluation process.
A. ALJ’s Findings Regarding Ankle Strain and Trigger Finger
Denton asserts that the ALJ’s determination that her bilateral ankle strain
and right middle trigger finger are non-severe impairments was in error because
it is not supported by substantial evidence. She argues that the pain caused by
these conditions impairs her ability to retain gainful employment. (Doc. 13 at p.
4).

14

With regard to the trigger finger condition, the medical records cited by
Denton to support her argument show that she was seen in the Emergency
Department at the VA on November 4, 2012 complaining of a cough, a facial
rash, and joint pain. (Tr. 579). With regard to the joint pain, she reported diffuse
joint pain notably in her bilateral wrists and at the PIP on the right middle finger
for the preceding 2-3 days. (Tr. 579-80). Examination of the finger revealed full
range of motion and that strength and sensation were intact, but the tendon did
appear to make a popping sensation when she went from extreme flexion to
extension. (Tr. 580). No treatment was given, and she was advised to follow-up
with her primary treating physician. (Tr. 581). She was seen at the VA clinic on
November 5, 2012 and, although her primary complaint seemed to be the facial
rash, she also reported that she had increasing pain in her fingers during the
preceding week. (Tr. 566). The records do not reflect any treatment being given
for her finger pain on that visit. (Tr. 566-67). Denton went to the clinic again on
February 8, 2013, complaining of painful contracture of her right middle finger
that was too painful for her to release. (Tr. 532). She reported that she had been
experiencing painful contractures of her right hand and particularly the middle
finger for about one year but had always been able to stretch it back out and get
relief in the past. The doctor was able to release the finger manually, but it was
painful. (Id.). The record reflects that x-rays of the hand taken in November of
2012 were normal. (Id.). She was given a trigger finger splint and a hand consult
was placed. (Tr. 533). There are no records that reflect that she subsequently
had a hand consult. When she moved from Birmingham to Mobile, she appeared

15

at the VA clinic for a new patient visit on May 23, 2014, at which time she
reported, inter alia, that her right middle finger “locks up.” (Tr. 746). There are no
other records reflecting complaints concerning or treatment for her right middle
trigger finger.
With regard to her allegations of ankle pain, the record reflects that during
a Compensation and Pension exam at the VA on August 15, 2013, Denton
reported that she had previously had a stress fracture in her right ankle, that she
had multiple episodes of rolling both ankles while in the military, that she had
some limited range of motion of the right ankle, and that she had chronic pain in
both ankles, which was more painful with prolonged standing. (Tr. 336). She did
not report that flare-ups impacted the function of the ankle. (Id.). Examination of
both ankles revealed normal range of motion, with no objective evidence of
painful motion with full flexion of both ankles and objective evidence only at the
point of full extension on both ankles. (Tr. 336-37). The medical note reflected
that Denton had no functional loss or impairment of either ankle, but did have
localized tenderness or pain on palpation of the joints/soft tissue of both ankles.
(Tr. 338). Strength was 5/5 on both ankles, and there was no laxity in either
ankle. (Id.). The records also reflect that while Denton reported that she had a
prior stress fracture of the right ankle, records indicated that a bone scan taken in
October of 2005 revealed a possible stress fracture in the left foot and a stress
reaction in both tibias. (Tr. 339). Bilateral ankle x-rays revealed no acute
fractures or dislocation, ankle mortise (joint) is intact with no significant
degenerative changes noted, no bony erosions, and soft tissues were

16

unremarkable. The only abnormal finding on x-ray was minimal posterior
calcaneal enthesopathy (inflammation where ligaments or tendons attach to
bone) bilaterally. (Tr. 340-41). The examiner concluded that Denton’s ankle
condition did not impact her ability to work. (Tr. 341). There was no other
evidence in the record that reflected any complaints of or treatment for ankle
pain.
A “severe” impairment is one that significantly limits the ability to perform
basic work activities. See 20 C.F.R. § 404.1520(a)(4)(ii); 20 C.F.R. § 416.921.
The plaintiff bears the burden of proving that an impairment significantly limits the
ability to do basic work skills. See Gibbs v. Barnhart, 156 F. App’x 243, 246 (11th
Cir. 2005). Denton did not present any evidence that her right middle trigger
finger impairment or her ankle impairment interfered with her ability to do basic
work activities or that she continuously sought treatment for these physical
impairments. See id. at 247. The ALJ specifically considered the medical
evidence concerning these impairments and concluded that they did not
constitute severe impairments. The Court finds that the ALJ’s determination that
Denton’s sporadic reports of right middle trigger finger and bilateral ankle sprains
do not constitute severe impairments is supported by substantial evidence and
was not in error.
B. ALJ’s Reliance on Dr. Estock’s Opinion to Support the Assigned RFC
The ultimate responsibility for determining a claimant’s RFC, in light of the
evidence presented, is reserved to the ALJ, not to the claimant’s physicians or
other experts. See 20 C.F.R. § 404.1546; see also Green v. Soc. Sec. Admin.,

17

223 F. App’x 915, 923 (11th Cir. 2007) (holding that “the ALJ will evaluate a
[physician’s] statement [concerning a claimant’s capabilities] in light of the other
evidence presented and the ultimate determination of disability is reserved for
the ALJ); Pritchett v. Colvin, Civ. A. No. 12-0768-M, 2013 WL 3894960, at *5
(S.D. Ala. July 29, 2013) (holding that “the ALJ is responsible for determining a
claimant’s RFC”). Denton claims that the ALJ here erred by relying on the
opinion of Dr. Robert Estock, the State agency reviewing physician who did not
examine Denton, in assigning her RFC. Denton seems to base her argument
on an implied assertion that the ALJ only relied on Estock’s opinion in making
her assessment of Denton’s mental RFC. Denton’s argument fails both legally
and factually.
The ALJ reviewed and discussed Denton’s mental examinations at the VA
from the time she first sought treatment for bipolar disorder and panic attacks
following her alleged onset date:
Regarding the claimant's mental impairments, in March 2013,
the claimant initiated bi-weekly outpatient mental health
treatment at the VA Medical Center in Birmingham. Initially,
she showed significant psychological distress with generally
low GAF scores ranging from 45-52. (Exhibit 3F, page 27-31,
223-236) However, by June 2013, she reported feeling much
better with a stabilized mood.
Thereafter, progress notes generally indicate only moderate
distress, and she typically presented fully oriented with a friendly
demeanor. Mental status examination findings were also
generally within normal limits showing good attention and
concentration, intact memory, and normal thought content.
(Exhibit 3F, page 1S7-178)
Although records show ongoing reports of mood swings, stress,
irritability, and panic attacks, the claimant's complaints are

18

typically attributable to outside stressors such as caring for her
children, her applications for disability benefits, or the deaths of
loved ones.3(Exhibit 4F, 5 F, 8F) In February 2014, the claimant
requested to decrease the frequency of her sessions to once
per month, and her psychologist agreed due to her “stability.”
(Exhibit 5F, page 17)
The undersigned has accounted for the claimant's manic
episodes and panic attacks with limitations to unskilled work
and only occasional contact with the public. This degree of
limitation is consistent with updated GAF scores ranging
from 55-62. (Exhibit 3F, 147-1S8, 4F, 5F, 6F) To the extent
these scores constitute an opinion, they are given some
weight, as they indicate mild to moderate symptoms, which
is consistent with the findings on mental status
examination, discussed above.
Otherwise, the undersigned assigns little weight to the
claimant's GAF of 50 during her 2009 hospitalization and
scores ranging from 45-52 in the period immediately after
she initiated psychological treatment. (Exhibit IF, 3F, page
184-236) These low scores were given before the alleged
onset date or in the months after she initiated professional
mental health treatment.
Furthermore, the record shows an improvement of the
claimant's condition through treatment. Because GAF scores
offer only a mere snapshot of the claimant's functioning at the
time of the exam, these scores are not indicative of the
claimant's overall level of functioning throughout the period at
issue.
***
The VA also evaluated the claimant 's mental impairments in
August 2013. She was assessed with a mood disorder, not
otherwise specified and a GAF of 62. Based on an in-person
examination and review of records, the report concludes that the
claimant has an occupational and social impairment with
occasional decrease in work efficiency and intermittent periods

3
For example, at her initial visit on March 13, 2013, the psychologist noted that
her stressors included limited assistance with her 3-year old twins, a pending
divorce, and a history of abuse during her marriage. (Tr. 521).

19

of inability to perform occupational tasks, although generally
functioning satisfactorily with normal routine behavior, self-care,
and conversation. Furthermore, cluster B features likely impact
the claimant's ability to cope with stress and manage emotions,
which leaves her more vulnerable to develop psychological
difficulties during times of stress. (Exhibit 3F, page 86-88, 147149)
The undersigned also assigns great weight to this
opinion, as it is also consistent with a significant
reduction in skill and interaction. Furthermore, to account
for cluster B features, which impact the claimant's ability to
handle stress, the claimant should only occasionally adapt to
minimal changes in the work setting. This restriction is also
consistent with Dr. Estock 's finding that the claimant should
be able to adapt to infrequent, well explained changes.
Greater mental limitations are not warranted based on the
medical evidence of record as a whole. As noted above, the
claimant's level of care is not what would be expected of someone
with the degree of impairment alleged. After initiating routine mental
health treatment in March 2013, her mood disorder was controlled
conservatively with medication, and by February 2014, her treating
psychologist agreed to decrease the frequency of her counseling
from bi-weekly to monthly due to her stability. Otherwise, the
claimant's activities of daily living are not consistent with a disabling
mental impairment. She is the custodial parent for her five year old
twins, one of which has special needs. She is independent in selfcare, able to wash dishes, do laundry, clean the tub and take her
children to the park and to play baseball.
(Tr. 25-27) (emphasis added).
Contrary to Denton’s argument, the ALJ reviewed the reports from her
primary treating physician (the VA clinicians) and accorded varying amounts of
weight to those opinions based upon their consistency with the evidence as a
whole. Accordingly, Denton’s factual intimation that the ALJ only gave weight to
Dr. Estock’s opinion concerning her mental limitations is not factually accurate.
Citing Dillard v. Astrue, 834 F. Supp. 2d 1325 (S.D. Ala. 2011), Denton

20

argues that the ALJ was prohibited from relying upon the opinion of a nonexamining, reviewing physician to support her RFC assessment and, instead,
was required to rely upon an assessment by a treating or examining physician.
(Doc. 13 at p. 12-13). However, Denton’s interpretation of Dillard is inapplicable
under the facts of this case. More recent cases in this district have held that “[i]n
order to find that the ALJ’s RFC assessment is supported by substantial
evidence, … it is not necessary for the ALJ’s assessment to be supported by
the assessment of an examining or treating physician.” Jones v. Colvin, CA 1400247-C, 2015 WL 5737156, at *24 (S.D. Ala. Sept. 30, 2015), quoted in
Pettaway v. Colvin, CA 15-0640-C, 2017 WL 62649, at *7 (S.D. Ala. Jan. 5,
2017. “To find that an ALJ’s RFC determination is supported by substantial
evidence, it must be shown that the ALJ has ‘provide[d] a sufficient rationale to
link’ substantial record evidence ‘to the legal conclusions reached.’” Jones,
2015 WL 5737156, at *23 (quoting Ricks v. Astrue, No. 3:10-cv-975-TEM, 2012
WL 1020428, at *9 (M.D. Fla. Mar. 27, 2012) (internal quotation marks and
citations omitted)).
“After careful consideration of the entire record,” the ALJ found that
Denton has the RFC to perform light work with some additional limitations. (Tr.
23). The Court finds that the ALJ properly linked her RFC assessment to the
evidence contained in the record, and therefore, her determination of Denton’s
RFC is supported by substantial evidence.
C. ALJ Erred in Finding that There Are Jobs Denton Can Perform Given
Her Assigned RFC
Finally, Denton argues that the ALJ erred in finding that jobs exist in

21

significant numbers in the national economy that Denton can perform given her
RFC, age, education, and work experience. Specifically, Denton argues that the
opinion of the Vocational Expert (VE) who testified at the hearing concerning
the jobs that she can perform conflicted with the Dictionary of Occupational
Titles (DOT). (Doc. 13 at pp. 5-7).
The ALJ found that Denton had the capacity to perform light work with
the following limitations:
she can occasionally stoop, kneel, crouch, crawl, and climb ramps
and stairs. She should not work at unprotected heights, around
hazardous machinery, or operate automotive equipment and
should never climb ladders, ropes, or scaffolds. She should never
reach overhead with the right upper extremity, but can
occasionally push/pull arm controls with the right upper extremity
and can occasionally handle with the dominant right hand. The
claimant is able to understand and carry out detailed, but
uninvolved, written or oral instructions involving a few concrete
variables in or from standardized situations. She can tolerate
occasional contact with the general public and can occasionally
adapt to minimal changes in the work setting or routine. She is able
to maintain attention and concentration for up to two hours at a
time and can perform goal oriented work, rather than production
pace work.
(Tr. 23).
Once a claimant proves that she cannot perform her past relevant work,
the burden shifts to the Commissioner to prove that there are other jobs in the
national economy that the claimant can perform given her impairments. See Hale
v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). When the claimant has nonexertional limitations or cannot perform a full range of work at a given level of
exertion, “the Commissioner’s preferred method of demonstrating that the
claimant can perform other jobs is through the testimony of a VE.” Jones v. Apfel,

22

190 F.3d 1224, 1229 (11th Cir. 1999). Here, the ALJ found that Denton could
perform jobs in the light category, but with additional limitations. Therefore, in
order to determine whether there were a significant number of jobs that Denton
could perform with these limitations, the ALJ relied upon a VE. “In order for the
testimony of a VE ‘to constitute substantial evidence, the ALJ must pose a
hypothetical question which comprises all of the claimant’s impairments.’” Wilson
v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002); Jones v. Apfel, 190 F.3d 1224,
1229 (11th Cir. 1999). Here, the ALJ gave the following hypothetical to the VE:
I’d like for you to assume an individual that’s the same age as Ms.
Denton, has the same education, and same work background. This
individual could perform a reduced range of light work. And by that I
mean the individual would be unable to perform any overhead
reaching on the right, could occasionally push and pull arm controls on
the right, occasionally handle with the right dominant hand.The
individual 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. The individual could have
occasional contact with the public. The individual could occasionally
adjust to minimal changes in the work setting or routine. The individual
could maintain attention and concentration for up to two hours at a
time. And the individual could perform goal orientated work, but not
production paced work.
(Tr. 54-55).
In response to this hypothetical, the VE identified available jobs of
protective clothing issuer (DOT# 222.687-046), sandwich board carrier (DOT#
299.687-014), and school crossing guard (DOT# 371.567-010), all of which are
light work with an SVP of 1 or 2. (Tr. 55-56). The second hypothetical posed to
the VE was whether there would be jobs available with the following additional
limitations: “the individual could occasionally stoop, kneel, crouch, crawl, and

23

climb ramps and stairs. The individual would be precluded from working at
unprotected heights, climbing ladders – ropes, ladders, or scaffolding. The
individual would be precluded from working around hazardous machinery and
operating automotive equipment.” (Tr. 56). The VE testified that the sandwich
board carrier job and the school crossing guard job would still be available, as
well as the job of school bus monitor (DOT# 372.667-042), which is light with an
SVP of 2. (Id.). The VE further testified that his “testimony [was] consistent with
the Dictionary of Occupational Titles and its companion publications.” (Tr. 57).
At the August 15 hearing before this Court, Denton argued that the VE’s
testimony that his opinion was consistent with DOT was false. However, at the
hearing before the ALJ, during which the VE in this case testified in person,
Denton did not question the VE about any inconsistencies, did not offer any
testimony to the contrary, and did not object to the opinion. Moreover, the law in
the Eleventh Circuit is clear that, even if the VE’s testimony conflicts with the
DOT, “the VE’s testimony ‘trumps’ the DOT … because the DOT ‘is not the sole
source of admissible information concerning jobs.’” Jones. 190 F.3d at 1229-30
(quoting Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994)). In Miller v.
Commissioner of Social Security, 246 F. App’x 660, 662 (11th Cir. 2007), the
Eleventh Circuit held that “[e]ven assuming that an inconsistency existed
between the testimony of the vocational expert and the DOT, the ALJ did not err
when, without first resolving the alleged conflict, he relied on the testimony of the
vocational expert” because “[o]ur precedent establishes that the testimony of a
vocational expert ‘trumps’ an inconsistent provision of the DOT in this Circuit.”

24

Here, the VE opined that the ALJ’s hypothetical person could perform the three
jobs described above. This Court finds that the ALJ did not err by relying on the
VE’s testimony and that the VE’s testimony as to the existence of work in the
national economy that Denton could perform with her impairments is substantial
evidence supporting the ALJ’s finding. See Jones v. Comm’r of Soc. Sec., 423 F.
App’x 936, 939 (11th Cir. 2011).
CONCLUSION
As noted above, it is not this Court’s place to reweigh the evidence or
substitute its judgment for that of the Commissioner. It is well-established that
this Court is limited to a determination of whether the ALJ’s decision is supported
by substantial evidence and based on proper legal standards. The Court finds
that the ALJ’s Decision that Denton is not entitled to benefits is supported by
substantial evidence and based on proper legal standards. Accordingly, it is
ORDERED that the decision of the Commissioner of Social Security denying
Plaintiff benefits be AFFIRMED.
DONE and ORDERED this the 24th day of August, 2017.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

25