Earheart v. Colvin

Filing 18

Order re: 1 Complaint filed by Andrew B. Earheart stating the decision of theCommissioner of Social Security denying Plaintiff's claim for a period of disability and disability insurance benefits be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/7/18. (mpp) Copies to counsel

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANDREW B. EARHEART,

*
*
*
*
* CIVIL ACTION NO. 16-00610-B
*
*
*
*
*
*

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

ORDER
Plaintiff

Andrew

B.

Earheart

(hereinafter

“Plaintiff”)

seeks judicial review of a final decision of the Commissioner of
Social Security denying his claim for a period of disability and
disability

insurance

benefits

under

Title

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

II

of

the

Social

On October 5, 2017, the

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

(Doc. 13).

Thus, the action was

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

1

Upon careful consideration

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

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

Procedural History2
Plaintiff

2015.

filed

his

application

(Doc. 7-5 at 2).

for

benefits

on

May

1,

Plaintiff alleged that he has been

disabled since August 1, 2014, based on “PTSD, anxiety disorder,
depression, and ADD.”

(Doc. 7-6 at 7, 10).

Plaintiff’s application was denied and upon timely request,
he was granted an administrative hearing before Administrative
Law Judge James F. Barter (hereinafter “ALJ”) on November 2,
2015,

and

Plaintiff

on

February

attended

the

7,

2016.

second

3

(Doc.

hearing

with

provided testimony related to his claims.
vocational
hearings.

expert

(“VE”)

appeared

(Doc. 7-2 at 60, 126).

7-2

and

at

his

37,

120).

counsel

and

(Doc. 7-2 at 42).
testified

at

A

both

On June 24, 2016, the ALJ

issued an unfavorable decision finding that Plaintiff is not
disabled.

(Doc.

7-2

at

20).

The

Appeals

Council

denied

2

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF. Because the transcript is
divided into separate documents, the Court’s citations include
the appropriate CM/ECF document number.
3

Plaintiff was unable to attend the first hearing, but the ALJ
proceeded with testimony from a vocational expert. (Doc. 7-2 at
126). A second hearing was scheduled, at which Plaintiff and a
second vocational expert testified. (Doc. 7-2 at 41).

2

Plaintiff’s request for review on November 4, 2016.

(Doc. 7-2

at

24,

2).

Therefore,

the

ALJ’s

decision

dated

June

2016,

became the final decision of the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

remedies,
(Doc. 1).

conducted oral argument on October 26, 2017.

Plaintiff
The Court

(Doc. 16).

The

parties agree that this case is now ripe for judicial review and
is properly before this Court pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3).
II.

Issues on Appeal
1. Whether substantial evidence supports the
ALJ’s RFC assessment for a full range of
work at all exertional levels with the
stated non-exertional limitations?
2. Whether the ALJ erred in assigning little
weight to the opinion of treating nurse
practitioner, Dolores Bray, CRNP, while
assigning great weight to the opinion of
non-examining State Agency psychologist,
Joanna Koulianos, Ph.D.?
3. Whether the ALJ erred by failing to
properly consider the VA’s 70% disability
rating for PTSD?

III. Factual Background
Plaintiff was born on September 10, 1978, and was thirtyseven years of age at the time of his second administrative
hearing on February 7, 2016.

(Doc. 7-2 at 42).

Plaintiff

graduated from high school and attended three years of college.
(Doc. 7-2 at 42-43).

Plaintiff also served in the military from

3

2002

to

2005

and

worked

technician for the Army.
After

leaving

the

Army,

as

a

special

electronic

device

(Doc. 7-2 at 45; Doc. 7-6 at 85).
Plaintiff

worked

in

2006

as

a

subcontractor for the Corps of Engineers 4 and from 2008 to 2012
as an office furniture installer.

(Doc. 7-2 at 43-45; Doc. 7-6

at 85-86).
At the time of his hearing, Plaintiff testified that he was
actively searching for work, sending out his resume, and filling
out job applications in multiple places.

Plaintiff testified

that, “[a]nything right now that I could find would be great.”
(Doc. 7-2 at 46-47).

Plaintiff also testified, however, that if

he found a job, he would have trouble keeping it because he does
not sleep well at night, averaging approximately four hours of
sleep a night,5 and because he has intermittent problems with his
left knee caused by a minor cartilage tear.
51-52).

(Doc. 7-2 at 47-48,

Plaintiff testified that his knee hurts after prolonged

standing and walking.

(Doc. 7-2 at 51).

Plaintiff testified that he is divorced and lives alone.
4

In 2006,
Engineers
charge of
trailers.

Plaintiff worked as a subcontractor for the Corps of
in New Orleans after Hurricane Katrina.
He was in
quality assurance, debris removal, and leasing FEMA
(Doc. 7-2 at 43).

5

Plaintiff testified that he does not take sleep medication
because of his past opioid dependence problems.
(Doc. 7-2 at
48).
However, he receives medication (Suboxone) at Altapointe
to treat his opioid dependency.
(Doc. 7-2 at 57-58). He also
takes medication for anxiety. (Doc. 7-2 at 49).

4

(Doc. 7-2 at 46).

On a normal day, Plaintiff wakes up very

early and goes for a walk or jog to get exercise, gets on the
computer and checks his emails, 6 and does work or odd jobs for
friends, such as installing office furniture. 7
53).

(Doc. 7-2 at 52-

He goes to church once a month and on holidays.

at 54).

(Doc. 7-2

Plaintiff does his own cleaning, including bathrooms,

sweeping, vacuuming, and laundry.

(Doc. 7-2 at 55).

In a

Function Report dated May 25, 2015, Plaintiff reported that he
takes care of his own personal care needs; he cooks, mows the
yard, cleans house, does laundry, drives, goes out every day,
shops, handles his own finances, and enjoys reading.
at 33-36).

He also reported that he does not handle stress or

changes in routine well.
IV.

(Doc. 7-6

(Doc. 7-6 at 38).

Standard of Review
In reviewing claims brought under the Act, this Court’s

role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

6

Plaintiff testified that he does not have internet, but he goes
to Starbucks or the library approximately one hour a day to work
on his computer.
(Doc. 7-2 at 54).
He walks or borrows his
parents’ car for transportation because he does not currently
own an automobile. (Doc. 7-2 at 54-55).
7

Plaintiff testified that he is able to work for six or seven
hours a day installing office furniture and that he gets along
well with the crew. (Doc. 7-2 at 56).

5

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

8

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
V.

Statutory and Regulatory Framework
An individual who applies for Social Security disability

benefits

must

prove

his

or

her

8

disability.

20

C.F.R.

§§

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

6

404.1512, 416.912.

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

423(d)(1)(A);

a

The

see

Social

sequential

also

20

Security

evaluation

C.F.R.

§§

regulations
process

determining if a claimant has proven his disability.

for

20 C.F.R.

§§ 404.1520, 416.920.
The
engaged

claimant
in

must

first

substantial

prove

gainful

that

activity.

he

or
The

she

has

second

not
step

requires the claimant to prove that he or she has a severe
impairment or combination of impairments.

If, at the third

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

is

meets

or

equals

automatically

a

found

education, or work experience.

listed

impairment,

disabled

regardless

then

the

of

age,

If the claimant cannot prevail

at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
1986).
the

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

In evaluating whether the claimant has met this burden,

examiner

must

consider

the

following

four

factors:

(1)

objective medical facts and clinical findings; (2) diagnoses of

7

examining

physicians;

claimant’s

age,

(3)

education

evidence
and

work

of

pain;

and

history.

(4)

Id.

the

Once

a

claimant meets this burden, it becomes the Commissioner’s burden
to prove at the fifth step that the claimant is capable of
engaging in another kind of substantial gainful employment which
exists in significant numbers in the national economy, given the
claimant’s

residual

work history.
1985).

functional

capacity,

age,

education,

and

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

If the Commissioner can demonstrate that there are such

jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).

Jones v.

See also Hale v.

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
VI.

Discussion
A.   Substantial evidence supports the ALJ’s
RFC assessment for a full range of work
at all exertional levels with the stated
non-exertional limitations.
Plaintiff

finding

that

argues
he

could

exertional

levels,

limitations,

without

function-by-function
counters

that

that

the

perform
with

a

violated

full

certain

detailing

range
stated

Plaintiff’s

fashion.”

substantial

ALJ

(Doc.

evidence

8

8

“SSR
or

96-8p”

work

supports

all

non-exertional

limitations
at

at

by

3).
the

“in

a

Defendant
ALJ’s

RFC

assessment

and

that

the

RFC

expressly

accommodates

Plaintiff’s physical and mental limitations.
Having

reviewed

the

record

at

length,

the

all

of

(Doc. 9 at 5).
Court

finds

that

Plaintiff’s claim is without merit.
In this case, the ALJ found at step two of the sequential
evaluation process that Plaintiff has the severe impairments of

posttraumatic stress disorder (PTSD), depressive disorder, NOS,
attention deficit hyperactivity disorder (ADHD/ADD), marijuana
abuse in partial remission, and osteoarthritis of the left knee.
(Doc. 7-2 at 22).
insured,

The ALJ concluded that, through the date last

Plaintiff

(hereinafter

“RFC”)

exertional

retained
to

levels,

the

perform
with

residual
a

full

the

functional

range

following

of

capacity

work

at

all

non-exertional

limitations: Plaintiff “can occasionally climb ladders, ropes,
or scaffolds,” “can perform simple routine tasks of unskilled
work that require simple work decisions and ordinarily have few
changes that are gradually introduced,” and “can interact with
coworkers on a basic level but contact with the public should be
occasional.”
the

ALJ

(Doc. 7-2 at 25).

found

that,

while

relevant work, he can

Based on the testimony of the VE,

Plaintiff

cannot

perform

his

past

perform jobs such as “hand packager,”

“industrial

cleaner,”

and

“kitchen

unskilled.

(Doc. 7-2 at 30-31).

helper,”

medium

and

Thus, the ALJ concluded that

Plaintiff is not disabled. (Doc. 7-2 at 31).

9

all

Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
404.1545.

See 20 C.F.R. §

Determinations of a claimant’s residual functional

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

2d

1323,

1331 (S.D.

Ala.

See Beech v. Apfel, 100 F.
2000)

(citing

20

C.F.R.

§

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

the

bears

plaintiff’s

residual

the

of

burden

Once the ALJ has

functional

demonstrating

capacity,

that

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

the

the

ALJ’s

See Flynn v.
Plaintiff has

failed to meet his burden in this case.
As stated, Plaintiff argues that the ALJ erred in failing
to provide a function-by-function assessment of the limitations
caused

by

his

mental

impairments

(i.e.,

PTSD,

depressive

disorder, ADHD, and marijuana abuse) and his physical impairment
(i.e., problems with his left knee)

in determining the RFC,

thereby violating SSR 96-8p. 9 (Doc. 8 at 3-4).

9

Specifically,

SSR 96–8p provides that “the RFC assessment must first identify
the individual’s functional limitations or restrictions and
10

Plaintiff

argues

that

the

ALJ

generalized

his

mental

impairments, did not expressly define what he meant by “can
interact with coworkers on a basic level,” and failed to provide
“rationale with specific references to the evidence of record in
support of his assessed limitations.”

(Id. at 4).

Plaintiff’s

argument is misplaced.
“The

Eleventh

Circuit

has

repeatedly

rejected

similar

claims that an ALJ’s failure to perform an explicit function-byfunction assessment under SSR 96-8p is an error of law mandating
reversal, so long as the ALJ’s decision sufficiently indicates
that he or she considered all relevant evidence in arriving at
an RFC determination.”
42507,

*11,

2016

WL

Aldao v. Colvin, 2016 U.S. Dist. LEXIS
1236899,

*4

(S.D.

Fla.

Mar.

30,

2016)

(quoting Stokes v. Colvin, 2016 U.S. Dist. LEXIS 8694, *20, 2016
WL 311295, *7 (S.D. Ala. Jan. 26, 2016) (collecting Eleventh
Circuit cases)); accord Cichocki v. Astrue, 729 F.3d 172, 177
(2d Cir. 2013) (“Where an ALJ’s analysis at Step Four regarding
a claimant’s functional limitations and restrictions affords an
adequate

basis

for

meaningful

judicial

review,

applies

the

proper legal standards, and is supported by substantial evidence

assess his or her work-related abilities on a function-byfunction basis.... Only after that may RFC be expressed in terms
of the exertional levels of work....” See also Cooperman v.
Colvin, 2014 U.S. Dist. LEXIS 83420, *9, 2014 WL 2801273, *3
(N.D. Ala. June 19, 2014).

11

such

that

additional

analysis

would

be

unnecessary

or

superfluous, we agree with our sister Circuits that remand is
not necessary merely because an explicit function-by-function
analysis was not performed.”) (citations omitted).
In this case, the record reflects that the ALJ considered
the entire medical record, as well as the limitations caused by
Plaintiff’s physical and mental impairments, in assessing the
RFC.

Indeed,

Plaintiff

has

medication

at

the

record

received
the

VA

and

confirms
only

the

ALJ’s

conservative

Altapointe

for

findings
treatment

his

mental

that
with
health

issues, with some additional counseling for opioid and cannabis
dependency, which has improved; that Plaintiff’s complaints have
centered

mainly

on

problems

with

sleeping;

that

Plaintiff’s

treatment records at the VA and Altapointe regularly reflect
normal mental health examination findings, including intact or
good memory, normal concentration, good or fair judgment and
insight,

logical

thought

processes,

normal

mood

and

affect,

intact speech, alert, oriented, and cooperative, with some noted
agitation, anxiousness, and worry. 10

10

(Doc. 7-12 at 200-08; Doc.

With respect to the limitations caused by Plaintiff’s mental
impairments, the ALJ specifically noted: “[t]he claimant does
have persistent evidence of anxiousness and continued changes to
his medication regime; however, the persistent symptoms would be
addressed by the limitations of the residual functional
capacity.
His limitation to only simple routine tasks of
unskilled work that require simple work decisions and ordinarily
have few changes that are gradually introduced would address
12

7-15 at 2, 6, 24, 38, 41, 46, 55, 61, 79, 118-19, 158-59, 186;
Doc. 7-16 at 29, 34-41, 61).

Moreover, as the ALJ found, the

record contains no indication that Plaintiff’s symptoms were not
capable of management with medication and counseling for drug
dependency.

(Id.).

With respect to Plaintiff’s left knee impairment, the ALJ
noted that an x-ray and an MRI taken in July and October 2015,
respectively,
degenerative
meniscus

indicated
changes,

edge,

chondromalacia.

a

that

with

“tiny”

Plaintiff

a

had

minimal,

suprapatellar

only

“small”

“minimal”

tear

effusion,

in

and

the

“tiny”

(Doc. 7-15 at 145; Doc. 7-16 at 10-11).

Also,

Plaintiff’s physical examination findings related to his left
knee generally reflect normal range of motion, normal gait, no
need for assistive device, normal muscle strength and tone, and
treatment recommendations that he take over-the-counter antiinflammatory medication and use Icy Hot.
145,

151-52;

Doc.

7-16

at

11,

(Doc. 7-15 at 6, 55,

35-36).

While

Plaintiff’s

treatment records do contain intermittent reports of pain, they
also contain multiple reports of no pain.
Doc.

7-15

at

72,

178;

Doc.

7-16

at

(Doc. 7-12 at 19, 24;
18,

27,

60,

64,

66).

both symptoms of his impairments, including the complaints
regarding the daytime effects on his concentration from the
insomnia, as well as even medication side effects given that his
medications
continue
to
be
adjusted.
Furthermore,
the
limitations regarding interaction would more directly address
his complaints of anxiousness/anxiety.” (Doc. 7-2 at 27-28).

13

Notably,

there

is

no

indication

from

any

of

Plaintiff’s

treatment providers that his left knee impairment has caused
limitations in excess of the RFC.
The record also confirms the ALJ’s finding that Plaintiff
engages in a wide range of activities of daily living, including
living alone, taking care of his own personal needs, jogging and
exercising regularly, walking to Starbucks frequently to use the
internet,

doing

his

own

household

chores,

including

laundry,

yard work, including mowing, driving, shopping, handling his own
finances, and attending church from time to time.

(Doc. 7-2 at

46-47, 52-56; Doc. 7-6 at 33-37).
In addition, State Agency non-examining psychologist, Dr.
Joanna Koulianos, Ph.D., opined on July 9, 2015, that Plaintiff
is moderately limited in his ability to understand, remember,
and carry out detailed instructions, as well as in his ability
to respond to changes in the work setting and his ability to
interact

with

the

general

public,

but

that

he

is

not

significantly limited in his ability to understand, remember,
and

carry

related

out

simple

decisions

workers.

or

instructions
in

his

and

ability

(Doc. 7-3 at 10-12).

to

to

make

get

simple

along

work-

with

co-

As noted, the ALJ expressly

included accommodations for these limitations in the RFC.

(Doc.

7-2 at 25).
Having reviewed the ALJ’s decision and the record in this

14

case, the Court is satisfied that the ALJ considered all of the
relevant

evidence

related

to

impairments in arriving at
evidence

supports

Therefore,

that

Plaintiff’s

Plaintiff’s

physical

and

mental

the RFC and that the substantial
11

assessment.
claim

that

(Doc.

the

ALJ

was

7-2

at

25).

required

to

undertake a separate function-by-function analysis is without
merit.
WL

See Poe v. Colvin, 2016 U.S. Dist. LEXIS 20254, *8, 2016

688041,

properly

*3

(N.D.

assessed

Ala.
all

Feb.
of

19,

2016)

Plaintiff’s

(Because

the

impairments

ALJ
when

formulating Plaintiff’s RFC, and considered Plaintiff’s medical
records as a whole, Plaintiff’s argument that the ALJ had to
include a function-by-function analysis pursuant to SSR 96-8p is
without merit); accord Freeman v. Barnhart, 220 Fed. Appx. 957,
960 (11th Cir. 2007); Aldao, 2016 U.S. Dist. LEXIS 42507 at *11,
11

Although Plaintiff has cited evidence in the record related to
his diagnoses and treatment for insomnia and substance abuse and
his GAF scores of 50 (Doc. 8 at 7, 10) to support his argument
that he is completely disabled, that is, at best, a contention
that the record evidence supports a different finding. That is
not the standard on review. The issue is not whether there is
evidence in the record that would support a different finding,
but whether the ALJ’s finding is supported by substantial
evidence. See Figueroa v. Commissioner of Soc. Sec., 2017 U.S.
Dist. LEXIS 181734, *15-16, 2017 WL 4992021, *6-7 (M.D. Fla.
Nov. 2, 2017) (finding no error in ALJ’s conclusion that
Plaintiff’s medical condition did not preclude her ability to
perform a range of light work, despite Plaintiff’s evidence of a
diagnosis of fibromyalgia and documentation of symptoms of
fibromyalgia, where substantial evidence, such as normal
examination
findings
and
Plaintiff’s
daily
and
social
activities, supported the ALJ’s conclusion that Plaintiff could
perform a range of light work).

15

2016 WL 1236899 at *4.
B.   Substantial evidence supports the ALJ’s
assignment
of
little
weight
to
the
opinions of Plaintiff’s treating nurse
practitioner, Dolores Bray, CRNP, as well
as the assignment of great weight to the
opinions of non-examining State Agency
psychologist Joanna Koulianos, Ph.D.
Next,
little

Plaintiff

weight

argues

to

the

that

the

opinions

ALJ

of

erred

his

in

assigning

treating

nurse

practitioner, Delores Bray, CRNP, that he has marked limitations
in multiple functional areas (Doc. 7-15 at 203), while assigning
great

weight

to

the

opinions

of

non-examining

State

Agency

psychologist Joanna Koulianos, Ph.D., that he can perform simple
work.
is

(Doc. 8 at 8).

not

technically

Plaintiff maintains that while Ms. Bray

an

acceptable

medical

source,

SSR

06-03p

allows the Commissioner to use evidence from “other sources,”
such

as

claimant’s

nurse

practitioners,

impairments

ability to function.

and

(Id.).

to

how

show

they

the

severity

affect

the

of

a

claimant’s

Plaintiff also argues that the ALJ

erred in assigning great weight to the opinions of State Agency
psychologist Dr. Joanna Koulianos, Ph.D., because Dr. Koulianos
did not examine Plaintiff, nor did she have the benefit of all
of

Plaintiff’s

medical

records.

(Id.

at

12).

Defendant

counters that substantial evidence supports the ALJ’s assignment
of weight to the opinion evidence in this case.
agrees that Plaintiff’s claims are without merit.

16

The Court

As part of the disability determination process, the ALJ is
tasked

with

examining,

weighing
and

the

opinions

non-examining

and

findings

physicians.

In

of

treating,

reaching

a

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

See Winschel v.

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

See Williams v.

Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009).
When weighing the opinion of a treating physician, the ALJ
must give the opinions “substantial weight,” unless good cause
exists for not doing so.

Costigan v. Commissioner, Soc. Sec.

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

However, the

opinion of “a one-time examining physician — or psychologist”
is not entitled to the same deference as a treating physician.
Petty

v.

Astrue,

2010

U.S.

Dist.

LEXIS

24516,

*50,

2010

WL

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

An ALJ is also “required to consider the opinions of

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

17

Milner v. Barnhart, 275 Fed. Appx. 947, 948 (11th Cir. 2008)
(unpublished) (citing 20 C.F.R. § 404.1527(f)(2)(i)).

“The ALJ

may rely on opinions of non-examining sources when they do not
conflict with those of examining sources.”

Id. (citing Edwards

v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining

physicians,

testimony

any

of

good

medical

cause

source

exists

when

it

to

is

discredit

contrary

to

the
or

unsupported by the evidence of record.

Phillips v. Barnhart,

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

“Good cause may also

exist

where

a

doctor’s

opinions

are

merely

conclusory,

inconsistent with the doctor’s medical records, or unsupported
by objective medical evidence.”

Hogan v. Astrue, 2012 U.S.

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

F.2d

834,

835

(11th

Cir.

1985)

(per

Sryock v. Heckler,
curiam)

(citation

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

212

(11th

Cir.

2010)

(The

ALJ

may

reject

any

medical

opinion if the evidence supports a contrary finding.).
First, with respect to nurse practitioner, Ms. Bray, the
regulations

are

clear

that

“acceptable

medical

impairment.

See Coralic v. Commissioner of Soc. Sec., 2014 U.S.

source”

a

nurse

for

18

practitioner

purposes

of

is

not

an

establishing

an

Dist. LEXIS 159272, *23 (M.D. Fla. October 28, 2014) (citing 20
C.F.R. §§ 404.1513(a), 416.913(a), adopted by, 2014 U.S. Dist.
LEXIS 159141, 2014 WL 6065757, *9-10 (M.D. Fla. Nov. 12, 2014).
“However, a nurse practitioner is an ‘other’ medical source used
‘to show the severity of impairments and how the impairments
affect

ability

to

404.1513(d)(1)).
‘important

and

work.’”
“Opinions

should

be

Id.
from

evaluated

(quoting
nurse
on

20

C.F.R.

practitioners

key

issues

§
are

such

as

impairment severity and functional effects.’” Id. (citing SSR
06–03p,

from

‘other

sources’ are not entitled to any particular deference.”

Braun

v.

2006

Berryhill,

WL

2329939).

2017

U.S.

However,

Dist.

LEXIS

“[o]pinions

152885,

*17,

2017

WL

4161668, *6 (M.D. Fla. Sept. 20, 2017) (quoting Adams ex rel.
A.M.P. v. Astrue, 2012 WL 2923918, *5 (N.D. Ala. July 16, 2012).
Nevertheless,

“[a]n

ALJ

should

generally

explain

the

weight

given to opinions from ‘other sources,’ or ‘otherwise ensure
that the discussion

of the evidence in the determination or

decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect
on the outcome of the case.’”

Id. (quoting SSR 06-03p, 2006 WL

2329939, at *6).
In this case, the record shows that the ALJ evaluated Ms.
Bray’s opinions set forth in a Mental RFC Questionnaire dated
January

8,

2016,

that

Plaintiff

19

has

“marked”

limitations

in

virtually

every

functional

category,

including

activities

of

daily living, social functioning, and performing simple tasks.
(Doc. 7-15 at 203-04).

Ms. Bray noted on the questionnaire that

she had seen Plaintiff on one other occasion, December 7, 2015,
at

which

time

his

examination

findings

were

largely

normal,

including normal rate of speech, logical thought processes, no
delusions,

no

violent

thoughts,

good

insight

and

judgment,

alert, oriented, cooperative, intact memory, with agitation and
decreased attention and concentration.
7-16

at

36).

As

the

ALJ

found,

(Doc. 7-15 at 203; Doc.

Ms.

Bray’s

opinions

were

inconsistent with her examination findings on December 7, 2015,
as well as with Plaintiff’s admitted levels of activity.
7-2 at 28).
decision

(Doc.

Given that substantial evidence supports the ALJ’s

to

accord

them

little

weight,

Plaintiff’s

claim

regarding Ms. Bray’s opinions is without merit.
With respect to the opinions of State Agency non-examining
psychologist, Dr. Koulianos, as previously discussed, the record
shows that on July 9, 2015, Dr. Koulianos completed a mental RFC
assessment and opined that Plaintiff is moderately limited in
his

ability

to

understand,

remember,

and

carry

out

detailed

instructions, to respond to changes in the work setting, and to
interact

with

the

general

public,

but

that

he

is

not

significantly limited in his ability to understand, remember,
and carry out simple instructions and make simple work-related

20

decisions or in his ability to get along with co-workers.
7-3 at 10-12).

(Doc.

The ALJ accorded great weight to Dr. Koulianos’

assessment, finding that she provided a narrative explanation
for her opinion that was well supported by its consistency with
Plaintiff’s

treatment

notes,

as

well

as

with

Plaintiff’s

testimony related to his activities of daily living, and the
record as a whole.12

(Doc. 7-2 at 28-29).

Based on the evidence detailed above, the Court agrees.
Because

Dr.

Koulianos’

opinions

are

consistent

with

the

substantial medical evidence in this case and do not conflict
with the credible opinions of any examining sources, the ALJ
properly accorded them great weight.

See Harris v. Colvin, 2014

U.S. Dist. LEXIS 159749, *25, 2014 WL 5844240, *8 (S.D. Ala.
Nov. 12, 2014).

Therefore, Plaintiff’s claim is without merit.

C.   Whether the ALJ erred by failing to
properly consider the VA’s 70% disability
rating for PTSD?
Last, Plaintiff argues that the ALJ erred in failing to
properly

consider

(Doc. 8 at 6).

the

VA’s

70%

disability

rating

for

PTSD.

The Commissioner counters that the ALJ fully

considered the rating and found it to be inconsistent with a
12

Plaintiff argues that Dr. Koulianos did not have the benefit
of all of Plaintiff’s medical records at the time that she
conducted her review. However, even if that were true, the ALJ
did have the benefit of all of Plaintiff’s medical records, and
Dr. Koulianos’ opinions are consistent with the record as a
whole.

21

finding

of

reviewed

disability.

the

record

(Doc.

in

this

9

at

case,

9).
the

Having
Court

carefully

agrees

that

Plaintiff’s claim is without merit.
“A VA rating, while not binding on the SSA, ‘is evidence
that should be considered and is entitled to great weight.’”
Ostborg v. Commissioner of Soc. Sec., 610 Fed. Appx. 907, 914
(11th Cir. 2015) (quoting Brady v. Heckler, 724 F.2d 914, 921
(11th Cir. 1984) (internal quotation marks omitted)).

In this

case, the record reflects that the ALJ expressly considered the
VA’s 70% disability rating for PTSD and noted that, while it was
not binding, it was being considered along with other evidence
in the record.

(Doc. 7-2 at 29).

The ALJ pointed out that the

70% VA rating itself actually supported a finding that Plaintiff
was

not

included

totally
in

the

disabled
VA

and,

in

documentation

any

were

event,

the

inconsistent

substantial medical evidence in the case.

(Id.).

findings
with

the

The Court

agrees.
A

review

of

the

March

23,

2015,

VA

disability

rating

documentation reveals that, in reaching its determination, the
VA referenced Plaintiff’s “near continuous” depression and panic
attacks affecting his ability to function and his difficulty in
establishing

and

maintaining

work

and

social

relationships.

(Doc. 7-6 at 3-4, 64-65).

However, as the ALJ indicated, not

only

inconsistent

are

these

findings

22

with

Plaintiff’s

VA

treatment

records,

detailed

above,

and

his

treatment

records

from Altapointe, they are inconsistent with his testimony in his
social
2016,

security
that

he

disability
has

been

hearing

looking

conducted

for

work

on

at

February

Winn-Dixie

7,
and

Starbucks, that he jogs and exercises daily, that he goes to
Starbucks daily for an hour or so to access the internet, and
that he works well with a work crew that he helps assemble
office furniture.

(Doc. 7-2 at 47, 52-54, 56).

Because the ALJ considered the VA’s 70% disability rating
for

PTSD

and

because

that

rating

was

inconsistent

with

the

substantial medical evidence detailed in this case, including
the VA’s own treatment records showing largely normal mental
examination findings, as detailed above, and Plaintiff’s wideranging

activities

of

daily

assigning it little weight.

living,

the

ALJ

did

not

err

in

See Ostborg, 610 Fed. Appx. at 914

(finding no error in assignment of little weight to the VA’s
disability rating where “the ALJ closely scrutinized the VA’s
disability decision and gave specific reasons for determining
the

VA’s

case...

determination
[and]

had

[s]ubstantial

little

bearing

evidence

on

[plaintiff’s]

support[ed]

the

reasons for discounting the VA’s determination....”).

ALJ’s
Because

the ALJ “seriously considered [the VA’s disability rating] in
making his own determination that [plaintiff] was not disabled,”
he

“did

not

err

by

failing

23

to

give

the

VA

disability

determination ‘great weight.’”

See Adams v. Commissioner of

Soc. Sec., 542 Fed. Appx. 854, 857 (11th Cir. 2013).
In

sum,

the

ALJ

in

this

case

determined

that

the

substantial medical evidence, as well as Plaintiff’s admitted
activities of daily living, supported a finding that Plaintiff’s
limitations

did

not

substantial

gainful

disable

him

activity,

from

participating

particularly

given

exertional limitations contained in the RFC.
out

these

findings

and

supports

the

the

in
non-

The record bears

ALJ’s

conclusion

that

Plaintiff’s activities and treatment records are not consistent
with

a

finding

of

total

disability.

Indeed,

Plaintiff

has

failed to show that any limitations caused by his mental or
physical impairments exceed the RFC and are not accommodated by
the

RFC’s

additional

restrictions

that

he

only

occasionally

climb ladders, ropes, or scaffolds, that he perform only simple
routine

tasks

of

unskilled

decisions,

that

he

introduced,

and

that

level,

only

but

have
he

work
few

require

changes

interact

occasionally

that

have

with

that

are

coworkers

contact

simple

with

work

gradually

on
the

a

basic

public.

(Doc. 7-2 at 25).
Based on the foregoing, the Court finds that Plaintiff’s
claim is without merit.
V.

Conclusion
For

the

reasons

set

forth

24

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability

and

disability

insurance

benefits

be

AFFIRMED.
DONE this 7th day of March, 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

25