Montgomery v. Berryhill

Filing 34

MEMORANDUM OPINION AND ORDER that the Commissioner's final decision denying plaintiff's 9/12/14 application for SSI is AFFIRMED under sentence four of 42 U.S.C. §405(g). Signed by Magistrate Judge Katherine P. Nelson on 3/27/19. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARYN JANECKY MONTGOMERY, )
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
Defendant.
)

CIVIL ACTION NO. 1:18-00013-N

MEMORANDUM OPINION AND ORDER
Plaintiff Caryn J. Montgomery (“Montgomery”) brought this action under 42
U.S.C. § 1383(c)(3) seeking judicial review of a final decision of the Defendant
Commissioner of Social Security (“the Commissioner”) denying her application for
supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42
U.S.C. § 1381, et seq. Upon consideration of the parties’ briefs (Docs. 13, 24) and those
portions of the administrative record (Doc. 10) (hereinafter cited as “(R. [page
number(s) in lower-right corner of transcript])”) relevant to the issues raised, the
Court finds that the Commissioner’s final decision is due to be AFFIRMED under
sentence four of § 405(g) (applicable to SSI claims under § 1383(c)(3)).1

With the consent of the parties the Court has designated the undersigned
Magistrate Judge to conduct all proceedings and order the entry of judgment in this
civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73,
and S.D. Ala. GenLR 73. (See Docs. 19, 20). The parties filed a Joint Motion for
Waiver of Oral Argument (doc. 31) which was granted by the court. (Doc. 32).
Montgomery also filed a separate motion to remand this action to the
Commissioner on the basis that the Administrative Law Judge who issued the
unfavorable decision on her applications was not constitutionally appointed. (Doc.
18). That motion has been denied by separate order (Doc. 33).
1

I.

Background

On September 12, 2014, Montgomery filed an application for SSI with the
Social Security Administration (“SSA”), alleging disability beginning August 15,
2014.2 After her application was initially denied, Montgomery requested a hearing
before an Administrative Law Judge (“ALJ”) with the SSA’s Office of Disability
Adjudication and Review on January 13, 2015. The hearing was held with an ALJ
on July 19, 2016. On January 13, 2017, the ALJ issued an unfavorable decision on
Montgomery’s application, finding her not disabled under the Social Security Act and
thus not entitled to benefits. (See R. 20).
The Commissioner’s decision on Montgomery’s application became final when
the Appeals Council for the Office of Disability Adjudication and Review denied her
request for review of the ALJ’s decision on November 17, 2017.

(R. 1 – 6).

Montgomery subsequently filed this action under § 405(g) and § 1383(c)(3) for judicial
review of the Commissioner’s final decision. See 42 U.S.C. § 1383(c)(3) (“The final
determination of the Commissioner of Social Security after a hearing [for SSI
benefits] shall be subject to judicial review as provided in section 405(g) of this title
to the same extent as the Commissioner’s final determinations under section 405 of
this title.”); 42 U.S.C. § 405(g) (“Any individual, after any final decision of the

“Title XVI of the Act provides for the payment of disability benefits to indigent
persons under the Supplemental Security Income (SSI) program.” Bowen v. Yuckert,
482 U.S. 137, 140 (1987) (citing 42 U.S.C. § 1382(a)). “For SSI claims, a claimant
becomes eligible in the first month where she is both disabled and has an SSI
application on file.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per
curiam) (citing 20 C.F.R. § 416.202–03 (2005)).
2

2

Commissioner of Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review of such decision by a
civil action commenced within sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner of Social Security may
allow.”); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007)
(“The settled law of this Circuit is that a court may review, under sentence four of
section 405(g), a denial of review by the Appeals Council.”).
II.

Standards of Review

“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on proper
legal standards. 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 v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam)
(internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir.
1997))). However, the Court “ ‘may not decide the facts anew, reweigh the evidence,
or substitute our judgment for that of the [Commissioner].’ ” Id. (quoting Phillips v.
Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original) (quoting
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))). “‘Even if the evidence
preponderates against the [Commissioner]’s factual findings, [the Court] must affirm
if the decision reached is supported by substantial evidence.’ ” Ingram, 496 F.3d at
1260 (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

3

“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The Court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to conduct
a de novo proceeding, nor to rubber stamp the administrative decisions that come
before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”). 3 “In determining whether substantial evidence exists, [a

Nevertheless, “[m]aking district courts dig through volumes of documents and
transcripts would shift the burden of sifting from petitioners to the courts. With a
typically heavy caseload and always limited resources, a district court cannot be
expected to do a petitioner’s work for him.” Chavez v. Sec'y Fla. Dep't of Corr., 647
F.3d 1057, 1061 (11th Cir. 2011) (28 U.S.C. § 2254 habeas proceedings). “[D]istrict
court judges are not required to ferret out delectable facts buried in a massive record,”
id., and “ ‘[t]here is no burden upon the district court to distill every potential
argument that could be made based on the materials before it…’ ” Solutia, Inc. v.
McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012) (per curiam) (Fed. R. Civ. P. 56
motion for summary judgment) (quoting Resolution Trust Corp. v. Dunmar Corp., 43
F.3d 587, 599 (11th Cir. 1995) (en banc)) (ellipsis added).
Moreover, the Eleventh Circuit Court of Appeals, whose review of Social
Security appeals “is the same as that of the district court[,]” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam), generally deems waived claims of error not
fairly raised in the district court. See Stewart v. Dep’t of Health & Human Servs., 26
F.3d 115, 115-16 (11th Cir. 1994) (“As a general principle, [the court of appeals] will
not address an argument that has not been raised in the district court…Because
Stewart did not present any of his assertions in the district court, we decline to
consider them on appeal.” (applying rule in appeal of judicial review under 42 U.S.C.
§§ 405(g), 1383(c)(3)); Crawford, 363 F.3d at 1161 (same); Hunter v. Comm’r of Soc.
Sec., 651 F. App'x 958, 962 (11th Cir. 2016) (per curiam) (unpublished) (same); Cooley
v. Comm'r of Soc. Sec., 671 F. App'x 767, 769 (11th Cir. 2016) (per curiam)
(unpublished) (“As a general rule, we do not consider arguments that have not been
fairly presented to a respective agency or to the district court. See Kelley v. Apfel, 185
F.3d 1211, 1215 (11th Cir. 1999) (treating as waived a challenge to the administrative
3

4

court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, the “substantial evidence” “standard of review applies only to
findings of fact. No similar presumption of validity attaches to the [Commissioner]’s
conclusions of law, including determination of the proper standards to be applied in
reviewing claims.”

MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)

(quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th
Cir. 1982) (“Our standard of review for appeals from the administrative denials of
Social Security benefits dictates that ‘(t)he findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive ....’ 42 U.S.C.A. s 405(g) … As
is plain from the statutory language, this deferential standard of review is applicable
only to findings of fact made by the Secretary, and it is well established that no
similar presumption of validity attaches to the Secretary’s conclusions of law,
including determination of the proper standards to be applied in reviewing claims.”
(some quotation marks omitted)). This Court “conduct[s] ‘an exacting examination’
of these factors.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam)
(quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

“‘The

law judge’s reliance on the testimony of a vocational expert that was ‘not raise[d] . . .
before the administrative agency or the district court’).”); In re Pan Am. World
Airways, Inc., Maternity Leave Practices & Flight Attendant Weight Program Litig.,
905 F.2d 1457, 1462 (11th Cir. 1990) (“[I]f a party hopes to preserve a claim,
argument, theory, or defense for appeal, she must first clearly present it to the district
court, that is, in such a way as to afford the district court an opportunity to recognize
and rule on it.”); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (applying In re
Pan American World Airways in Social Security appeal).
5

[Commissioner]’s failure to apply the correct law or to provide the reviewing court
with sufficient reasoning for determining that the proper legal analysis has been
conducted mandates reversal.’” Ingram, 496 F.3d at 1260 (quoting Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)). Accord Keeton v. Dep't of Health
& Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In sum, courts “review the Commissioner’s factual findings with deference and
the Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel, 245 F.3d
1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005) (per curiam) (“In Social Security appeals, we review de novo the legal
principles upon which the Commissioner's decision is based. Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). However, we review the resulting decision only to
determine whether it is supported by substantial evidence. Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004).”).
Eligibility for…SSI requires that the claimant be disabled. 42 U.S.C.
§…1382(a)(1)-(2). A claimant is disabled if she is unable “to engage in
any substantial gainful activity by reason of a medically determinable
physical or mental impairment ... which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. §…
1382c(a)(3)(A).
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015) (per
curiam) (unpublished).4
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled: (1)
In this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).
4

6

whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).5
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has satisfied this initial burden, the examiner
must consider four factors: (1) objective medical facts or clinical findings; (2) the
diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant’s age,
education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986)
(per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983) (per
curiam)).

“These factors must be considered both singly and in combination.

Presence or absence of a single factor is not, in itself, conclusive.” Bloodsworth, 703
F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves
that he or she has a qualifying disability and cannot do his or her past relevant work,

The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
5

7

it then becomes the Commissioner’s burden, at Step Five, to prove that the claimant
is capable—given his or her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834, 836 (11th
Cir. 1985). Finally, although the “claimant bears the burden of demonstrating the
inability to return to [his or] her past relevant work, the Commissioner of Social
Security has an obligation to develop a full and fair record.” Shnorr v. Bowen, 816
F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272, 1276
(11th Cir. 2003) (per curiam) (“It is well-established that the ALJ has a basic duty to
develop a full and fair record. Nevertheless, the claimant bears the burden of proving
that he is disabled, and, consequently, he is responsible for producing evidence in
support of his claim.” (citations omitted)). “This is an onerous task, as the ALJ must
scrupulously and conscientiously probe into, inquire of, and explore for all relevant
facts. In determining whether a claimant is disabled, the ALJ must consider the
evidence as a whole.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir.
2015) (per curiam) (citation and quotation omitted).
When the ALJ denies benefits and the Appeals Council denies review of that
decision, the Court “review[s] the ALJ’s decision as the Commissioner’s final
decision.” Doughty, 245 F.3d at 1278. But “when a claimant properly presents new
evidence to the Appeals Council, a reviewing court must consider whether that new
evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at 1262.
Nevertheless, “when the [Appeals Council] has denied review, [the Court] will look

8

only to the evidence actually presented to the ALJ in determining whether the ALJ’s
decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323
(11th Cir. 1998).
III.

Summary of the ALJ’s Decision

At Step One, the ALJ determined that although Montgomery worked after the
application date, the work activity did not rise to the level of substantial gainful
activity. (R. 12).

At Step Two, the ALJ determined that Montgomery had the

following severe impairments: a history of Guillain-Barre syndrome dating from
2007, peripheral neuropathy, hearing loss, auditory neuropathy, anxiety, and
depressive disorder. (R. 12). At Step Three, the ALJ found that Montgomery did not
have an impairment or combination of impairments that met or equaled the severity
of a specified impairment in the Listing of Impairments. (R. 13).
At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“RFC”); and (2) the claimant's ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the
regulations define RFC as that which an individual is still able to do
despite the limitations caused by his or her impairments. 20 C.F.R. §
404.1545(a). Moreover, the ALJ will “assess and make a finding about
[the claimant's] residual functional capacity based on all the relevant
medical and other evidence” in the case. 20 C.F.R. § 404.1520(e).
Furthermore, the RFC determination is used both to determine whether
the claimant: (1) can return to her past relevant work under the fourth
step; and (2) can adjust to other work under the fifth step…20 C.F.R. §
404.1520(e).
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv)
& (f). If the claimant cannot return to her past relevant work, the ALJ
moves on to step five.

9

In determining whether [a claimant] can return to her past relevant
work, the ALJ must determine the claimant's RFC using all relevant
medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That is,
the ALJ must determine if the claimant is limited to a particular work
level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the claimant’s
RFC and determines that the claimant cannot return to her prior
relevant work, the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ determined that Montgomery had the RFC “to perform sedentary
work as defined in 20 CFR 416.967(a),[6] subject to the following limitations: “no
climbing ladders, ropes, scaffolds; occasional climbing ramps/stairs; occasional
balance, stoop, kneel, crouch, crawl; frequent reaching, handling, fingering, feeling,
pushing, pulling; occasional operating foot controls; can hear and understand simple
oral instructions and communicate simple information; cannot use a telephone
without captioning; no exposure to unprotected heights/hazardous machinery; no
operating motor vehicles; can perform simple routine tasks in 2 hour increments with
normal breaks for the duration of an 8-hour workday; occasional interaction with the
public; and occasional change in routine work setting.” (R. 15).
Based on the RFC and the testimony of a vocational expert (VE), the ALJ
determined that Montgomery was unable to perform any past relevant work as a
salesperson or an administrative assistant. (R. 19). The ALJ proceeded to Step Five

“To determine the physical exertion requirements of different types of employment
in the national economy, the Commissioner classifies jobs as sedentary, light,
medium, heavy, and very heavy. These terms are all defined in the regulations …
Each classification … has its own set of criteria.” Phillips, 357 F.3d at 1239 n.4. See
also 20 C.F.R. §§ 404.1567, 416.967.
6

10

and found that there exist a significant number of jobs in the national economy that
Montgomery could perform given her RFC, age, education, and work experience. (R.
19). Thus, the ALJ found that Montgomery was not disabled. (R. 19).
IV.

Analysis

A. The ALJ’s findings concerning Montgomery’s mental and hearing
limitations and the RFC are supported by substantial evidence.
1. Hearing Limitations
Montgomery first argues that the ALJ’s RFC assessment concerning her
hearing and mental limitations are not supported by substantial evidence in that it
is inconsistent with the evidentiary record as a whole. Specifically, Montgomery
contends that the ALJ failed to fully incorporate the severity of her hearing loss into
the RFC since “the primary limitation indicated by the ALJ in the RFC is that she is
precluded from using a telephone without captioning.” (Doc. 13 at 9). Regarding the
claimant’s hearing loss, the ALJ opined as follows:
Listing 2.10 requires Hearing loss with an average air conduction
hearing threshold of 90 decibels or greater in the better ear and an
average bone conduction hearing threshold of 60 decibels or greater in
the better ear (see 2.00B2c). Alternatively, a word recognition score of
40 percent or less in the better ear determine using a standardized list
of phonetically balanced monosyllabic words (see 2.00B2e). However,
the claimant’s hearing loss is not as extensive as the listing requires
(Exhibit 12F). The requirements of Listing 2.10 are not met. (R. 13).
Montgomery notes that on August 13, 2014, “a hearing test by Premier Medical
revealed Ms. Montgomery’s hearing in the left ear to be at 90dB, and hearing in the
right ear to also be at 90 dB.” (Doc. 13 at 10).

Montgomery argues that the

accommodations made within the RFC are related to the hearing impairments, but

11

that they are inconsistent with the medical opinions of examining physicians Dr.
Kimberly Elliot and Dr. John Yager. 7

Specifically, Montgomery argues that

“occasional” interaction with the general public permits up to one-third of the day in
interactions with the general public, and the ALJ placed no restrictions on job
requirements

involving

communications

with

co-workers

or

supervisors.

Montgomery maintains that “[t]he RFC assessment that Ms. Montgomery can spend
up to a third of the workday dealing with the general public is inconsistent with the
opinions of both Dr. Elliott and Dr. Yager that Ms. Montgomery must have work-

Evidence considered by the Commissioner in making a disability determination may
include medical opinions. See 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). “ ‘Medical
opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [the
claimant's] impairment(s), including [the claimant’s] symptoms, diagnosis and
prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's]
physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79 (quoting 20 C.F.R.
§§ 404.1527(a)(2), 416.927(a)(2)). “There are three tiers of medical opinion sources:
(1) treating physicians; (2) nontreating, examining physicians; and (3) nontreating,
nonexamining physicians.” Himes v. Comm'r of Soc. Sec., 585 F. App'x 758, 762 (11th
Cir. 2014) (per curiam) (unpublished) (citing 20 C.F.R. §§ 404.1527(c)(1)-(2),
416.927(c)(1)-(2)). “In assessing medical opinions, the ALJ must consider a number
of factors in determining how much weight to give to each medical opinion, including
(1) whether the physician has examined the claimant; (2) the length, nature, and
extent of a treating physician's relationship with the claimant; (3) the medical
evidence and explanation supporting the physician’s opinion; (4) how consistent the
physician’s opinion is with the record as a whole; and (5) the physician’s
specialization.
These factors apply to both examining and non-examining
physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523 (11th Cir. 2014)
(per curiam) (unpublished) (internal citations and quotation marks omitted) (citing
20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)). “These factors must be considered
both singly and in combination. Presence or absence of a single factor is not, in itself,
conclusive.” Bloodsworth, 703 F.2d at 1240 (citation omitted). While “the ALJ is not
required to explicitly address each of those factors[,]” Lawton v. Comm'r of Soc. Sec.,
431 F. App'x 830, 833 (11th Cir. 2011) (per curiam) (unpublished), “the ALJ must
state with particularity the weight given to different medical opinions and the
reasons therefor.” Winschel, 631 F.3d at 1179.
7

12

related situations where her communications with others are accommodated…” (Doc.
13 at 9).
Dr. John Davis performed a consultative psychological evaluation on
Montgomery, and Dr. Yager performed a consultative neurological evaluation. Both
Drs. Davis and Yager concluded that her loss of hearing was due to the GuillainBarre syndrome, which caused nerve damage. Dr. Davis reported, “when I am looking
at her, she is reading my lips and can understand fairly well. However, when she
turns her back to me she has more difficulty understanding my speech even though I
raise my voice to some extent.” (R. 371).
Montgomery refutes the RFC assessment that she can hear and understand
simple instructions and argues that it is not supported by the evidence in the record.
Montgomery further maintains that the RFC assessment directly contradicts the
opinions Drs. Elliot and Yager. Dr. Elliot concluded that Montgomery has “a wellestablished moderately, severe sensorineural hearing loss, especially, in her low
frequencies. She has discrimination scores of 56% in the left and 52% on the right.
She does fairly, well when seated in front of you talking; however, talking on a phone
without captioning is going to be very difficult for her because she does not
understand the words. Depending on the setting, this could be of significant
hindrance to her in large crowds or in situations, where she has to use the phone.”
(R. 358). The ALJ noted that Dr. Elliot’s “objective findings and her opinions are
generally consistent with the record as a whole including the claimant’s testimony
and daily living activities.” (R. 16-18). However, Montgomery argues that the ALJ’s

13

decision “fails to explain the inconsistency between the opinions and evidence upon
which the RFC purports to rely and the RFC assessment.” (Doc. 13 at 13)
At the hearing, Montgomery testified that she could drive, had a college degree
and worked part-time as a salesperson in a retail store until it closed. (Doc. 24-1).
The Commissioner maintains the ALJ noted that Dr. Elmo Ozment, a treating
physician, opined that Montgomery would probably need help traveling and that
unprotected heights and working around machinery would not be good due to her
lack of hearing. (R. 341). He concluded that she does not hear normal conversations,
but has no trouble speaking.
In response to Montgomery’s argument that the RFC is flawed because it
places no limitations on job requirements involving communication with coworkers
or supervisors, the Commissioner maintains that the “particular functional
limitations were supported by the opinions of Drs. Ozment, Elliot and Yager.” (Doc.
24 at 7). The Commissioner further maintains that the record reflects that the ALJ
properly considered all medical evidence and the opinions, “along with other evidence
discussed by the ALJ constituted substantial evidence supporting the ALJ’s findings
as to Plaintiff’s hearing-related functional limitations.” (Doc. 24 at 7).
2. Mental Limitations
In addition to the hearing limitations, Montgomery further argues that the
ALJ failed to incorporate significant psychological limitations into the RFC
assessment from the opinion of examining psychologist Dr. Davis. Specifically, Dr.
Davis noted a moderate limitation in Montgomery’s ability to communicate and

14

interact with employers and co-workers. Montgomery maintains that Dr. Davis’s
report cannot be read as finding that she “did not have mental health symptoms, but
instead indicates his opinion that her mental symptoms would improve if her physical
impairments were resolved.” (Doc. 13 at 15). The ALJ found that:
The severity of the claimant’s mental impairments, considered singly
and in combination, do not meet or medically equal the criteria of
listings 12.04 or 12.06. In making this finding, the undersigned has
considered whether the “paragraph B” criteria are satisfied. To satisfy
the “paragraph B” criteria, the mental impairments must result in at
least two of the following: marked restriction of activities of daily living;
marked difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence, or pace; or
repeated episodes of decompensation, each of extended duration. A
marked limitation means more than moderate but less than extreme.
Repeated episodes of decompensation, each of extended duration, means
three episodes within 1 year, or an average of once every 4 months, each
lasting for at least 2 weeks. (R. 14).
The ALJ noted that Dr. Davis “examined the claimant and he noted that she
reported problems with activities of daily living due to hearing loss rather than
psychological issues.” (R. 14). Dr. Davis reported that Montgomery was not lacking
in her ability to concentrate and that although there were moderate difficulties, she
“had no indications of a deficit in her overall concentration or attention.” (R. 14). Dr.
Davis also reported that Montgomery’s “mental state is a function of her general
medical condition and is likely to improve or deteriorate correlated with her general
medical condition.” (R. 367).
The Commissioner argues that the ALJ properly concluded that the Plaintiff
could “hear and understand simple oral instructions and communicate simple
information;…perform simple routine tasks in 2 hour increments with normal breaks

15

for the duration of an 8-hour workday; occasional interaction with the public; and
occasional change in routine work setting.” (Doc. 24 at 8). The Commissioner further
maintains that the opinion of Dr. Davis, along with other medical providers
“constituted substantial evidence supporting the ALJ’s findings as to the Plaintiff’s
mental functional limitations.” (Doc. 24-1 at 9). Additionally, the Commissioner
states that “Dr. Davis had expressly qualified his opinion, stating that Plaintiff’s
mental problems were an ‘add-on factor’ and that ‘[d]ecisions about her disability
need to be based on the general medical condition.’ ” (Doc. 24-1 at 9).
Dr. Davis’s report failed to identify any mental difficulties Montgomery has
interacting with others. Montgomery testified that she babysits her nieces and
nephews, however, she will call someone if it becomes too difficult to babysit alone.
The ALJ concluded that: “Dr. Davis’s examination showed no indication of difficulties
to contribute to a problem interacting with the public, supervisors, or coworkers. He
states that she would be able to understand, remember and carry out even complex
instructions to a fair degree.” (R. 17). “He noted that her ability to perform complex
tasks is fair, and he stated that the psychological condition is an ‘add on factor,’
deferring to the general medical condition, not mental capacity as a primary
impairment.” (R. 17-18).
The Commissioner contends that Montgomery has failed to show that Dr. Davis’s
opinion indicated greater functional limitations than found by the ALJ. In his report,
Dr. Davis stated that her “interaction with staff and examiner was satisfactory.” (R.
364). He also reported that she showed no abnormalities with communication and

16

that “there were no indications of deficits in her overall concentration or attention.”
(R. 364).
The undersigned agrees that the ALJ did not err in his findings and the RFC
assessment as to Montgomery’s mental and hearing limitations is supported by
substantial evidence.
B. The ALJ did not err in discounting Dr. Hecker’s opinions regarding
Montgomery’s manipulative limitations.
“Absent ‘good cause,’ an ALJ is to give the medical opinions of treating physicians
‘substantial or considerable weight.’ ” Winschel, 631 F.3d at 1179 (quoting Lewis, 125
F.3d at 1440). “Good cause exists ‘when the: (1) treating physician's opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician's opinion was conclusory or inconsistent with the doctor's own medical
records.’ With good cause, an ALJ may disregard a treating physician’s opinion, but
he ‘must clearly articulate [the] reasons’ for doing so.” Id. (quoting Phillips, 357 F.3d
at 1240-41) (internal citation omitted). See also, e.g., Bloodsworth, 703 F.2d at 1240
(“[T]he opinion of a treating physician may be rejected when it is so brief and
conclusory that it lacks persuasive weight or where it is unsubstantiated by any
clinical or laboratory findings…Further, the [Commissioner] may reject the opinion
of any physician when the evidence supports a contrary conclusion.”). Failure to
clearly articulate the reasons for giving less weight to the opinion of a treating
physician “constitutes reversible error.” Lewis, 125 F.3d at 1440. “But if an ALJ
articulates specific reasons for declining to give the opinion of a treating physician
controlling weight, and those reasons are supported by substantial evidence, there is
17

no reversible error.” Horowitz v. Comm'r of Soc. Sec., 688 F. App'x 855, 861 (11th
Cir. 2017) (per curiam) (unpublished) (citing Moore, 405 F.3d at 1212).

Accord

Huigens v. Soc. Sec. Admin., Comm'r, 718 F. App'x 841, 844 (11th Cir. 2017) (per
curiam) (unpublished).8
Montgomery’s second assignment of error is that the ALJ erred in discrediting the
opinions of treating neurologist Dr. Timothy Hecker regarding Montgomery’s
manipulative limitations. Montgomery makes reference to Social Security Ruling 969p, which states that “any significant manipulative limitation of an individual’s
ability to handle and work with small objects with both hands will result in a
significant erosions of the unskilled sedentary occupational base.” (Doc. 13 at 17).
Montgomery maintains that the ALJ’s RFC assessment is consistent with that of Dr.
Yager’s opinion and contends that “it is important to note that Dr. Yager did not
conduct any objective neurological testing, and he had only brief exposure to Ms.
Montgomery at the time of his consultative exam.” (Doc. 13 at 18).
After Dr. Hecker conducted a neurological test on Montgomery, he concluded that
the “electrophysiologic findings are compatible with mild sensory neuropathy. There
is no evidence of demyelinating neuropathy on this exam.” (Doc. 13 at 16). The
Commissioner argues that Dr. Hecker’s findings “essentially repudiated his earlier

On January 18, 2017, the SSA substantially revised the regulations governing how
the Commissioner considers medical opinions. However, those revisions apply only
to claims filed on or after March 27, 2017, and are therefore inapplicable to
Montgomery’s present application. See 20 C.F.R. § 416.920c.
8

18

statements” concerning Montgomery’s nerves and awarded more weight to Dr.
Hecker’s diagnosis concerning Montgomery’s hearing and nerve issues.
Montgomery argues that Dr. Yager was not provided the results from Dr.
Hecker’s testing, nor had he had as much time with the patient. Moreover,
Montgomery notes that Dr. Yager did not conduct neurological test, nor did he have
a history of treating Montgomery regularly. Montgomery contends that because Dr.
Hecker is the treating neurologist, his opinion should not have been given partial
weight, and the ALJ failed to give specific details that supported the rejection of Dr.
Hecker’s opinion. Without specific inconsistencies, Montgomery maintains that the
ALJ’s reasoning is not supported by substantial evidence.
In response, the Commissioner notes that Dr. Hecker did not issue an opinion
as to manipulative limitations. Because Dr. Hecker did not mention any work related
functional limitations, the ALJ accorded weight to Dr. Hecker’s diagnosis regarding
the hearing and nerve issues, but not to the earlier opinion of disability which was
inconsistent with the remainder of the evidence. (Doc. 24 at 11). The ALJ stated in
the RFC that “Dr. Hecker’s opinion is not fully consistent with the remainder of the
evidence.” As a result, the Commissioner argues, the ALJ gave greater weight to the
opinion of Dr. Yager, which is more consistent with a preponderance of the evidence,
including the objective medical evidence and Montgomery’s testimony describing her
abilities and activities. (R. 18).
Furthermore, the Commissioner contends that Dr. Yager’s opinion was based
on his own examination and testing, regardless of the fact that Dr. Hecker did issue

19

an opinion as to Montgomery’s functional limitations. The undersigned finds that the
ALJ’s RFC is supported by substantial evidence and the decision to afford Dr.
Hecker’s opinion partial weight is articulated and likewise is supported by
substantial evidence.
Accordingly, the Court OVERRULES Montgomery’s claims of reversible error
and finds that the Commissioner’s final decision denying her benefits is due to be
AFFIRMED.
V.

Conclusion

In accordance with the foregoing analysis, and the analysis in the Court’s order
denying Montgomery’s separate motion for remand (Doc. 33) it is ORDERED that
the Commissioner’s final decision denying Montgomery’s September 12, 2014
application for SSI is AFFIRMED under sentence four of 42 U.S.C. § 405(g).
Final judgment shall issue separately in accordance with this order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 27th day of March 2019.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

20