Sullivan v. Colvin

Filing 25

Order re: 1 Complaint filed by Gloria Sullivan stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for aperiod of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/28/2016. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
GLORIA SULLIVAN,

*
*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 15-00271-B

ORDER
Plaintiff Gloria Sullivan (hereinafter “Plaintiff”) seeks
judicial

review

of

a

final

decision

of

the

Commissioner

of

Social Security denying her claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et seq., and 1381, et seq.
consented

to

have

the

proceedings in this case.

On June 13, 2016, the parties

undersigned
(Doc. 22).

conduct

any

and

all

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.

Upon careful consideration

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

I.

Procedural History
Plaintiff filed her applications for benefits on December
(Tr. 183-85) 1 .

14, 2010.
disabled

since

December

Plaintiff alleged that she has been
4,

2010,

based

on

arthritis,

carpal

tunnel syndrome, shoulder problems, high blood pressure, COPD,
back

problems,

muscle

finger on left hand.”
Plaintiff’s
request,

she

spasms,

“nerve

problem

with

index

(Id. at 230, 234).

applications

was

and

granted

were

an

denied

and,

administrative

upon

timely

hearing

before

Administrative Law Judge Paul Johnson (hereinafter “ALJ”) on May
7, 2012.

(Id. at 48-79).

Plaintiff attended the hearing with

her counsel and provided testimony related to her claims.
at 52).

Also appearing and testifying at the hearing was a

vocational expert (“VE”).
2013,

the

ALJ

issued

an

Plaintiff is not disabled.

(Id. at 55, 76).
unfavorable

On September 12,

decision

(Id. at 28).

finding

that

The Appeals Council

denied Plaintiff’s request for review on March 25, 2015.
at 1).

(Id.

(Id.

Therefore, the ALJ’s decision dated September 12, 2013,

became the final decision of the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

1

remedies,

(Doc. 1).

Plaintiff

The parties

When referencing the Social Security Transcript, the Court uses
the page numbers found on the transcript, rather than the page
numbers utilized by CM-ECF.

2

waived oral argument on June 13, 2016 (Doc. 12), and 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
the
ALJ
erred
in
finding
Plaintiff’s depression to be non-severe?

2.

Whether the ALJ failed to conduct a full
and fair hearing?

III. Factual Background
Plaintiff was born on June 21, 1966, and was forty-five
years of age at the time of her administrative hearing on May 7,
2012.

(Tr. 48, 230).

Plaintiff graduated from high school and

last worked in 2010 as a switch operator for a train.
52-53, 76, 235).

(Id. at

Prior to that, she worked as a seamstress, a

fish cleaner, and a flag person on a construction crew.

(Id. at

53-54).
At her hearing, Plaintiff testified that she cannot work
anymore because of her blood pressure 2 (Id. at 57-58). She also
has problems lifting and twisting; she has

headaches two or

three times a week; 3 she has problems sleeping; 4 she has pain in

2

Plaintiff testified that her blood pressure is not under control
with medication. (Tr. 65).

3

At the time of her hearing, Plaintiff testified that she was
taking Aleve for her headaches but was not otherwise on any pain
medication. (Tr. 66).

3

her left shoulder, back, 5 neck, and left hand; 6 she has COPD; 7
and she has depression. 8

(Id. at 59-66).

medication is for high blood pressure.

Her only prescription
(Id. at 67).

She has

never been to a psychiatrist or psychologist for depression, and
she currently takes no medication and receives no treatment for
depression.9

(Id. at 67-68, 74).

In a Function Report dated January 9, 2011, and in her
hearing testimony, Plaintiff reported that she lives alone in
her own home and that her daily routine consists of showering,
4

Plaintiff testified that her sleep medication makes her “tired
and woozy” the next day. (Tr. 59-60).

5

Plaintiff testified that she was diagnosed with scoliosis by an
orthopedist. (Tr. 63).

6

Plaintiff testified that she had surgery twice on the index
finger of her left hand to remove a cyst (in October 2010 and
May 2011) and was scheduled to have surgery to treat nerve
damage to the finger but could not afford it. (Id. at 61). She
now has numbness in her index finger. (Id.).

7

Plaintiff testified that she uses a nebulizer to treat shortness
of breath, and she uses a CPAP machine at night because she
stops breathing in her sleep. (Tr. 64-65).

8

Plaintiff testified that her depression makes her want to be
alone and not get out of bed about three days a week. (Tr. 62,
69).

9

Plaintiff testified that she has transportation issues, but she
acknowledged that she lives in Marion Junction, Alabama, which
is about fifteen to twenty minutes from Selma and that there are
psychiatrists/psychologists in Marion and in Selma.
(Tr. 68,
75).
She also acknowledged that she has a vehicle and drives
frequently to the store and to church. (Id.). In addition, her
primary care doctor, Dr. Park Chittom, M.D., is in Selma,
Alabama. (Id. at 355).

4

getting dressed, cooking, washing dishes, exercising “according
to how [she] feel[s],” watching television, reading, and going
back to bed at night.

(Id. at 252).

She also drives and visits

her mother, sister, and brother who live nearby.
68, 75).

She shops and goes to church.

(Id. at 62,

(Id. at 62, 255-56).

She cooks and cleans a little, does laundry, and irons.
70,

254).

She

takes

care

of

her

own

personal

care

(Id. at
needs,

although she sometimes cannot lift her arms above her head (Id.
at 253). Plaintiff can stand for about thirty minutes and walk
about two miles (Id. at 257) and can handle all of her own
finances and banking (Id. at 255). Her social activities include
going to church, and she does not need anyone to accompany her
(Id. at 256). She has no problems getting along with family,
friends, neighbors

nor authority figures, and has never been

fired due to problems getting along with others(Id. at 257-258).
Plaintiff reported problems finishing what she starts and paying
attention, but indicated that she can follow written and spoken
instructions “good” (id. at 257); and is able to handle stress
and changes in routine “good” (Id. at 258).
IV.

Analysis
A.

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

5

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied. 10
1520, 1529 (11th Cir. 1990).

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).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

10

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

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

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

C.F.R.

§§

regulations
process

determining if a claimant has proven his disability. 11

for

20 C.F.R.

§§ 404.1520, 416.920.
11

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second 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 meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
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. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
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 functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). 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. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). 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)).

7

In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since December
4, 2010, the alleged onset date, and that she has the severe
impairments of hypertension with headache, obesity, recurrent
inclusion

cyst

on

the

left

index

finger

with

history

of

infection, hyperlordotic curve of the lumbar spine, degenerative
joint disease, and tobacco dependence.

12

(Tr. 31).

The ALJ

further found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of
the listed impairments 13 contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1.
The

ALJ

(Id. at 31-32).
concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
light work, with the following restrictions: Plaintiff “cannot
climb ladders, ropes or scaffolds.
crawl.

She can only occasionally

She cannot reach overhead with the left non-dominant

upper extremity and can only occasionally finger with it.
must

avoid

concentrated

exposure

to

extreme

She

temperatures,

hazardous moving machinery, unprotected heights and pulmonary

12

The ALJ found Plaintiff’s situational anxiety
neurotic depression to be non-severe. (Tr. 31).

13

and

chronic

The ALJ found that Plaintiff has only a “mild” degree of
limitation in activities of daily living, maintaining social
functioning, and maintaining concentration, persistence, or
pace, with no episodes of decompensation. (Tr. 31).

8

irritants of fumes, odors, dust, gases, and poor ventilation.”
(Id. at 32).

The ALJ also determined that while Plaintiff’s

medically determinable impairments could reasonably be expected
to produce the alleged symptoms, her statements concerning the
intensity,

persistence

and

limiting

effects

of

the

alleged

symptoms were not entirely credible for the reasons explained in
the decision.

(Id. at 37).

The ALJ found that Plaintiff is unable to perform her past
relevant work.

(Id. at 40).

However, utilizing the testimony

of a VE, the ALJ concluded that Plaintiff is able to perform
jobs such as “cashier,” “self-service attendant,” and “storage
facility rental clerk” all of which are classified as light and
unskilled.

(Id. at 41).

is not disabled.
The

Court

Thus, the ALJ concluded that Plaintiff

(Id. at 42).
now

considers

the

foregoing

in

light

of

the

record in this case and the issues on appeal.
1.

Issues

A. Whether
the
ALJ
erred
in
finding
Plaintiff’s depression to be non-severe?
In

this

case,

Plaintiff

argues

that

finding that her depression is non-severe.

the

ALJ

erred

in

(Doc. 14 at 1).

Specifically, Plaintiff argues that the ALJ erred in failing to
comply with the mode of analysis dictated by the Psychiatric
Review

Technique

Form

(“PRTF”)

9

for

evaluating

mental

impairments.

(Id. at 3).

The Commissioner counters that the

ALJ expressly considered the four PRTF criteria when evaluating
Plaintiff’s depression and, further, that the ALJ’s finding that
Plaintiff’s depression is non-severe is supported by substantial
evidence.

(Doc. 19 at 1-4).

Having carefully reviewed the

record in this case, the Court finds that Plaintiff’s claim is
without merit.
At

her

hearing,

Plaintiff

testified

that

her

depression

causes her to not want “to be bothered” and to not want to get
out of bed.
sequential

(Tr. 62).
evaluation

The ALJ determined at step two of the
process

that,

while

Plaintiff

has

been

diagnosed with “chronic neurotic depression,” it is not severe.
(Id. at 31).
“In order to evaluate the severity of a mental impairment,
the

Commissioner’s

‘special

regulations

technique’

Willis

v.

91497,

*10,

or

Commissioner
2016

WL

require

so-called
of

Soc.

3752182,

(citing 20 C.F.R. § 404.1520a)).

application

‘paragraph

Sec.,

*3

the

2016

(M.D.

U.S.

Fla.

“Under the

B’

of

a

criteria.”
Dist.

July

14,

LEXIS
2016)

special technique,

the ALJ will rate the degree of functional limitation in four
broad

functional

areas:

activities

of

daily

living;

social

functioning; concentration, persistence, or pace; and episodes
of decompensation.”

Id. (citing 20 C.F.R. § 404.1520a(c)(3)).

The degree of limitation in the first three areas are rated on a

10

five-point scale of none, mild, moderate, marked, and extreme,
and the fourth area is rated as none, one or two, three, four or
more.

See

id.

(citing

20

C.F.R

§

404.1520a(c)(4)).

If

the

degree of limitation in the first three functional areas is none
or mild, and the fourth area is none, the ALJ generally will
conclude, as he did here, that the impairment is not severe,
unless

the

evidence

otherwise

indicates

more

than

a

limitation in ability to do basic work activities.
(citing 20 C.F.R. § 404.1520a(d)(1)).
incorporate

findings

technique.
As

and

minimal
See id.

The ALJ’s decision must

conclusions

based

on

the

special

See id. (citing 20 C.F.R. § 404.1520a(e)(4)).

the

Commissioner

argues,

the

record

shows

that,

in

making his finding that Plaintiff’s depression is not severe,
the

ALJ

severity
404.1520a,

followed
of

a

the

mental

416.920a

and

special

technique

impairment

for

set

forth

the

four

considered

assessing
in

20

broad

CFR

the
§§

functional

areas of the paragraph B criteria (i.e., Plaintiff’s activities
of daily living; social functioning; concentration, persistence,
or pace; and episodes of decompensation).

(Tr. 31).

The ALJ

examined both the medical evidence and the opinion evidence and
specifically
completed

by

discussed
State

the

Agency

Psychiatric
reviewing

Estock, M.D., on January 19, 2011.

Review

Technique

psychiatrist,

Dr.

Form

Robert

In the form, Dr. Estock

opined that Plaintiff has no more than “mild” restrictions in

11

activities of daily living, maintaining social functioning, and
maintaining concentration, persistence, or pace, and no episodes
of decompensation.

(Id. at 31, 385).

The ALJ found that Dr.

Estock’s opinion was consistent with the evidence that Plaintiff
has

not

sought

professional

mental

health

care

for

her

depression; her treatment records describe very conservative,
minimal

mental

physicians;

she

health

treatment

currently

takes

from

no

her

primary

antidepressant

or

care

anxiety

medication; she lives independently, taking care of all of her
own household and personal needs; and she drives.

(Id.).

The

ALJ stated that Dr. Estock’s written explanation in his report
was “essentially the same as” his own, and, thus, he adopted Dr.
Estock’s assessment of the “B criteria.”
Plaintiff’s

argument

severity

her

of

that

depression

the

ALJ

using

(Id.).

failed

the

to

“special

Accordingly,
evaluate
technique”

the
is

simply incorrect.
The Court likewise rejects Plaintiff’s argument that the
ALJ’s finding that her depression is not severe is not supported
by substantial evidence.

At the outset, the Court notes that,

even if Plaintiff’s depression were severe, the ALJ’s failure to
classify it as a severe impairment at step two of the sequential
evaluation process is not fatal.

See Bennett v. Astrue, 2013

U.S. Dist. LEXIS 115951, *14, 2013 WL 4433764, *5 (N.D. Ala.
2013) (“‘[n]othing requires that the ALJ must identify, at step

12

two, all of the impairments that should be considered severe’
and,

even

if

the

ALJ

erred

by

not

recognizing

every

severe

impairment, the error was harmless since he found at least one
such impairment.”); Ferguson v. Astrue, 2012 U.S. Dist. LEXIS
139135, *25, 2012 WL 4738857, *9 (N.D. Ala. 2012) (“[B]ecause
step two only acts as a filter to prevent non-severe impairments
from disability consideration, the ALJ’s finding of other severe
impairments allowed him to continue to subsequent steps of the
determination

process

and

his

failure

to

list

headaches

as

severe does not constitute reversible error because, under the
Social Security regulations, the ALJ at later steps considers
the

combined

effect

of

all

the

claimant’s

impairments.”)

(emphasis in original).
Here, the ALJ found Plaintiff’s hypertension with headache,
obesity, recurrent inclusion cyst on the left index finger with
history of infection, hyperlordotic curve of the lumbar spine,
degenerative joint disease, and tobacco dependence to be severe
at step two and then proceeded on to the next steps where he
considered

all

of

Plaintiff’s

including her depression.

impairments

(Tr. 31-40).

in

combination,

Thus, the ALJ satisfied

the requirements of the regulations.
Further, in order for an impairment to be severe, it must
be more than a slight abnormality or a combination of slight
abnormalities

“that

causes

no

13

more

than

minimal

functional

limitations.”

20

“significantly
work

limit[]”

activities.”

Plaintiff’s

C.F.R.

§

an

416.924(c).

individual’s

20

burden

C.F.R.

to

§

prove

Indeed,

“ability

must

existence

to

do

basic

“It

416.920(c).

the

it

is

[the]

of

a

severe

impairment, and she must do that by showing an impact on her
ability

to

work.”

Marra

v.

Colvin,

2013

U.S.

Dist.

LEXIS

105669, *13-14, 2013 WL 3901655, *5 (M.D. Fla. 2013) (citing
Bowen v. Yuckert, 482 U.S. 137, 146 (1987)); see also Barnhart
v. Thomas, 540 U.S. 20, 24 (2003) (“At step two, the SSA will
find

nondisability

unless

the

claimant

shows

that

he

has

a

‘severe impairment,’ defined as ‘any impairment or combination
of

impairments

which

significantly

physical

or

mental

(quoting

§§

404.1520(c),

F.2d

1026,

1031

ability

(11th

to

do

limits
basic

416.920(c));

Cir.

1986)

[the

work

McDaniel

(“Unless

the

claimant’s]

activities.’”)
v.

Bowen,

800

claimant

can

prove, as early as step two, that she is suffering from a severe
impairment, she will be denied disability benefits.”).
Plaintiff has failed to satisfy her burden of proof with
respect to the alleged severity of her depression.

Although

Plaintiff’s medical records document her diagnosis of “chronic
neurotic depression” (id. at 359), none of her medical records
indicates that her depression is severe and significantly limits
her ability to do basic work activities.

Rather, Plaintiff’s

treatment records show only very conservative, minimal treatment

14

for depression by her primary care physicians, with no evidence
of inpatient mental health treatment, emergency room visits for
mental

health

issues,

or

treatment

by

a

mental

health

professional of any kind.
Specifically, Plaintiff’s treatment records show that on
February

16,

2010,

Plaintiff

presented

to

her

primary

care

physician, Dr. Park Chittom, M.D., at the Selma Doctors Clinic
for “a total evaluation,” and Dr. Chittom conducted a physical
examination, which was completely normal, and a mental status
examination, which was completely normal.
Chittom

diagnosed

Plaintiff

with

(Id. at 402).

hypertension

and

Dr.

tension

headaches and prescribed blood pressure medication and Trazodone
(a sedative/antidepressant) “to help her rest.”

(Id.).

Plaintiff did not return to Dr. Chittom for eight months.
On

October

4,

2010,

Plaintiff

presented

with

complaints

of

“inability to sleep,” stating that she had “alot going on in her
life.”

(Id.

at

359).

Dr.

Chittom

conducted

a

physical

examination and a mental status examination, both of which were
completely normal.

(Id.).

Dr. Chittom diagnosed Plaintiff with

hypertension and “chronic neurotic depression with insomnia” and
continued her previous medications.

(Id.).

Plaintiff returned for a follow up examination on December
16,

2010,

and

medications,

Dr.

that

Chittom

she

was

noted
“doing

15

that
well,”

she
and

was

taking

that

she

her
was

sleeping “real[ly] well.”
and

mental

(Id.).

status

(Id. at 356).

examinations

again

Plaintiff’s physical

were

completely

Dr. Chittom continued her medications.

normal.

(Id.).

The final treatment note from Dr. Chittom is dated January
7,

2011,

and

titled

“disability

form.”

(Id.

at

396).

Dr.

Chittom’s notes reflect that Plaintiff’s physical examination
was completely normal on that date.

(Id.).

In addition, Dr.

Chittom stated that he first saw Plaintiff in February 2010 for
uncontrolled

blood

pressure

and

headaches,

which

were

“exacerbated by her depression and anxiety,” and that he had
last seen her in December 2010 when he placed her on a “mild”
antidepressant and blood pressure medication, resulting in an
improvement in blood pressure, headaches, and insomnia. 14
Dr.

Chittom

hypertension,

noted

Plaintiff’s

tension

previous

headaches,

and

(Id.).

diagnoses

chronic

neurotic

depression, and he continued her regular medications.
He

assigned

conditions.

no

functional

limitations

from

of

any

(Id.).
of

her

(Id.).

The record shows that Plaintiff also received treatment on
two

occasions

between

2009

Medical Program (“RHMP”).

and

2011

from

(Id. at 423-28).

14

the

Rural

Health

On March 8, 2011,

The record shows that Plaintiff was also treated from 2010 to
2012 by Dr. Robert Anderson, M.D., at Selma Doctors Clinic for a
recurrent cyst on her left index finger. (Tr. 395-96, 403, 43435).

16

Plaintiff requested a check up, reporting a history of high
blood pressure and complaining of lower back pain and abdomen
pain.
mild

(Id. at 425).
right

lower

Plaintiff’s physical examination showed

quadrant

prescription for Mobic.
later,

on

June

28,

tenderness,

(Id.).
2011,

and

she

was

given

Plaintiff returned three months
with

complaints

of

headaches,

dizziness, swelling in legs, and left shoulder pain.
426).

a

(Id. at

She was diagnosed with hypertension, degenerative joint

disease, and “situational anxiety” and prescribed blood pressure
medication, anti-anxiety medication, and a diuretic.

(Id. at

425-26).
Plaintiff was also treated on four occasions by Dr. Perry
Timberlake, M.D., at the Hale County Hospital Clinic (“HCHC”)
from approximately October 30, 2012, to January 29, 2013.
at 466-77).
Timberlake

(Id.

On October 30, 2012, Plaintiff presented to Dr.
with

complaints

of

back

pain,

shoulder

pain,

headache, high blood pressure, and depression, and a history of
surgery on her left index finger.

(Id. at 466).

Dr. Timberlake

noted that he spent fifteen minutes with Plaintiff, during which
time he conducted a physical examination, finding only a tender
lumbosacral spine and paresthesias (tingling) in the legs.
at 467).
that

(Id.

Based on his brief examination, Dr. Timberlake opined

Plaintiff

was

“completely

and

totally

gainful work now or in the future.”

(Id.).

17

disabled

to

do

Dr. Timberlake

prescribed

Lortab,

blood

pressure

medication,

an

anti-

inflammatory, and an antidepressant and instructed Plaintiff to
follow

up.

(Id.).

Plaintiff

November 13, 2012, for a
which

was

January

normal.

22,

(Id.

2013,

infected thumb.

returned

two

pap smear and

later,

on

vaginal examination,

at

469-70).

Two

Plaintiff

returned

with

(Id. at 474).

weeks

months

later,

complaints

of

on
an

Her physical examination was

completely normal, except for a tender thumb.

(Id. at 475).

Dr. Timberlake gave her a steroid injection and an antibiotic
and instructed her to follow up in one week.

(Id.).

Plaintiff

returned on January 29, 2013, with complaints of constipation
and heart racing and was prescribed medication for high blood
pressure, constipation, and infection.

(Id. at 476-77).

physical examination on that date again was normal.
476).

Her

(Id. at

This is the final treatment note in the record.15

Also, as previously discussed, the record contains the PRTF

15

The ALJ gave no weight to Dr. Timberlake’s opinion that
Plaintiff is completely and totally disabled to do work now or
in the future.
(Tr. 40).
Given the inconsistency of Dr.
Timberlake’s opinion with his own treatment notes and with the
substantial evidence in the case, the ALJ had good cause to
discredit his opinion. See Phillips v. Barnhart, 357 F.3d 1232,
1240 (11th Cir. 2004) (good cause exists to discredit the
testimony of any medical source when it is contrary to or
unsupported by the evidence of record); Sryock v. Heckler, 764
F.2d 834, 835 (11th Cir. 1985) (accord); Adamo v. Commissioner
of Soc. Sec., 365 Fed. Appx. 209, 212 (11th Cir. 2010) (accord).
Plaintiff does not take issue with the ALJ’s finding in this
regard.

18

completed by State Agency psychiatrist, Dr. Estock, who reviewed
Plaintiff’s

records

on

January

19,

2011,

and

opined

that

Plaintiff has no more than “mild” restrictions in activities of
daily living, maintaining social functioning, and maintaining
concentration,

persistence,

decompensation.
opinion

is

or

pace,

(Id. at 385).

consistent

and

no

episodes

of

As the ALJ found, Dr. Estock’s

with

the

evidence

of

Plaintiff’s

activities of daily living, which includes that she lives alone
in her own home, takes care of her own personal needs, cooks,
cleans,

does

laundry,

exercises

“according

to

how

[she]

feel[s],” walks two miles, drives, visits relatives, goes to
church, handles all of her own finances and banking, has no
problems getting along with family, friends, or neighbors; gets
along “good” with authority figures; has never been fired from a
job because of problems getting along with people; can follow
written and spoken instructions well; and can handle stress and
changes in routine well.

(Id. at 62, 68, 70, 75, 252-58).

In light of the evidence detailed above, the Court finds
that

the

ALJ

did

not

err

in

determining

that

Plaintiff’s

depression does not significantly limit her ability to do basic
work activities, and thus, is not a severe impairment.

The

Court further finds that the substantial evidence detailed above
supports the ALJ’s RFC assessment for a range of light work with

19

the stated exertional restrictions. 16

Accordingly, Plaintiff’s

claim fails.
B. Whether the ALJ failed to conduct a full
and fair hearing?
Plaintiff also argues that the ALJ erred in
conduct

a

full

and

fair

hearing

by

issuing

an

failing to
unfavorable

decision in this case without allowing her the opportunity to
cross-examine

Dr.

Huey

consultative report.

Kidd,

D.O.,

about

(Doc. 14 at 3-4).

his

post-hearing

Plaintiff argues that,

while the ALJ allowed her to submit interrogatories to Dr. Kidd
after receiving the report,
interrogatories,

and

the

Dr. Kidd never responded to the

ALJ

issued

his

decision

denying

benefits without giving Plaintiff the opportunity to subpoena
him to appear for cross-examination at a supplemental hearing.
(Id.).

The Commissioner counters that the ALJ fully considered

the interrogatories and found them to be adequately answered by
the report itself.

(Doc. 19 at 5).

Having carefully reviewed

the record in this case, the Court finds that Plaintiff’s claim
is without merit.
16

As discussed, the ALJ determined that Plaintiff can perform a
range of light work, with the following exertional restrictions:
Plaintiff “cannot climb ladders, ropes or scaffolds.
She can
only occasionally crawl.
She cannot reach overhead with the
left non-dominant upper extremity and can only occasionally
finger with it. She must avoid concentrated exposure to extreme
temperatures, hazardous moving machinery, unprotected heights
and pulmonary irritants of fumes, odors, dust, gases, and poor
ventilation.” (Tr. 32).

20

The record shows that the ALJ informed Plaintiff and her
attorney at the administrative hearing on May 7, 2012, that,
before he made his final decision, he would order a post-hearing
consultative examination; he would request a pulmonary function
test

to

help

explain

Plaintiff’s

complaints

of

shortness

of

breath and fatigue; and he would order a physical examination
with a lumbar x-ray.

(Tr. 74-76).

On August 8, 2012, Dr. Huey

Kidd, D.O., examined Plaintiff at the request of the Agency.
(Id. at 453).

At the examination, Plaintiff reported a history

of scoliosis, lower back pain, hypertension, COPD, carpal tunnel
syndrome, and two previous surgeries on her non-dominant index
finger to remove a recurring cyst.

(Id.).

Plaintiff reported

that her only medication was Atenolol, which she was taking for
high blood pressure.
Plaintiff’s

(Id. at 454).

physical

examination

revealed

that

she

was

obese, that her heart function and lung function were normal,
that

her

normal

abdomen

with

no

was

non-tender,

swelling,

that

that
her

her

grip

extremities
strength

was

were
5/5

bilaterally, that she was able to heel/toe walk, squat, stand,
and touch her toes without difficulty, that her straight leg
raise was negative, and that she ambulated without difficulty.
(Id.).
were

Dr. Kidd noted that Plaintiff’s deep tendon reflexes

over

(Id.).

four

bilaterally,

indicating

hyperactive

reflexes.

X-rays of Plaintiff’s lumbar spine and chest revealed a

21

hyperlordotic curve of the lumbar spine and a “very slight”
scoliotic

curve

“essentially
(Id.).

on

the

left

straight”).

Dr.

Kidd

side

(described

Otherwise,

also

conducted

the

by

Dr.

x-rays

pulmonary

Kidd

were

as

normal.

function

tests

resulting in some below normal findings, but none of which Dr.
Kidd found to be disabling.

(Id. at 456).

Dr. Kidd opined that Plaintiff had back pain and “scoliosis
by history” and that her x-rays revealed a hyperlordotic curve
in her lumbar spine.

(Id. at 454).

However, Dr. Kidd opined

that there was no support for her back pain in his examination
or in the x-rays.

(Id.).

Dr. Kidd completed a MSS

and opined

that Plaintiff can

lift/carry 50 pounds frequently, can sit, stand, and walk for
eight hours each in an eight-hour work day (id. at 458-59), is
unlimited

in

the

use

of

her

hands

(including

fingering

and

feeling) and unlimited in the use of her feet (id. at 460), can
frequently

balance,

stoop,

kneel,

crouch,

and

crawl,

can

occasionally climbs stairs and ramps, can never climb ladders
and scaffolds, and can never work around unprotected heights.
(Id.

at

461-62).

Dr.

Kidd

opined

that

Plaintiff

had

no

limitations in performing activities such as sorting, handling,
using paper files, shopping, traveling alone, ambulating without
assistance, walking a block on uneven surfaces, using standard
transportation,

climbing

steps

22

with

a

hand

rail,

preparing

simple meals, and caring for her own personal needs.
463).

In

sum,

Dr.

Kidd

assigned

no

significant

(Id. at
functional

limitations.
As

Plaintiff

has

asserted,

upon

receipt

of

Dr.

Kidd’s

report, her attorney submitted four interrogatories, which the
Agency submitted to Dr. Kidd on three separate occasions, but to
which Dr. Kidd never responded.

(Id. at 291, 309-10).

Those

interrogatories were: (1) Please list the records you reviewed
in

this

claim;

(2)

Please

state

specifically

the

basis

you

contend [Plaintiff] has no restriction on her ability to finger
and feel; (3) When completing the Medical Source Statement on
behalf of [Plaintiff], what ailments did you take into account;
and (4) Would you expect [Plaintiff] to miss 3 days of work per
month?

Please

explain

your

answer.

(Id.

at

495).

After

receiving no response from Dr. Kidd, the ALJ issued his decision
denying benefits, stating:
Having been made aware of the examiner’s
nonresponse
to
the
representative’s
questions,
the
undersigned
carefully
considered the four written questions being
posed by counsel.
The undersigned finds
that the four questions are not necessary to
inquire fully into the matters at issue. It
is
readily
apparent
that
the
examiner
physician based his conclusion on objective
evidence that he documented in the report
(e.g.,
physical
examination
objective
findings, pulmonary function testing, and xrays).
His report clearly includes a
discussion of the ailments he considered,
and he notes records he relied on, such as

23

the x-ray reports. In relation to counsel’s
question number four, none of the findings
in the report even remotely suggest that
this examiner would opine that that the
claimant would miss three days of work per
month.
In
fact,
his
medical
source
statement
indicates
little
diminished
functional capacity in that he opines the
claimant can perform a range of heavy work.
In sum, the undersigned finds that the four
questions from the representative to the
examiner through interrogatories is not
required to inquire fully into the matters
at issue, and the record has been adequately
developed.
Thus, the undersigned proceeds
with a decision.
(Id. at 28-29) (emphasis in original).

Having reviewed the

record at length, the Court finds that Plaintiff’s claim that
the ALJ violated her due process rights by failing to allow her
the opportunity to cross-examine Dr. Kidd after he failed to
answer the proffered interrogatories is without merit.
Due process requires the “opportunity to be heard
meaningful

time

and

in

a

meaningful

claimant “to a full and fair hearing.”

manner”

and

at a

entitles

a

Martz v. Commissioner,

Soc. Sec. Admin., 2016 U.S. App. LEXIS 9123, *37-38, 2016 WL
2909201, *13 (11th Cir. May 19, 2016) (citations and internal
quotation marks omitted).
procedural

due

process

The Supreme Court has determined that
is

applicable

to

the

Social

Security

adjudicative administrative process and entitles a party, inter
alia, “to conduct such cross-examination as may be required for
a

full

and

true

disclosure

of

24

the

facts.”

Richardson

v.

Perales, 402 U.S. 389, 401, 409 (1971).

In that regard, the

Supreme Court has held that “[d]ue process is flexible and calls
for

such

procedural

demands.”

protections

as

the

particular

situation

Mathews v. Eldridge, 424 U.S. 319, 334 (1976).

“The determination of whether cross-examination [of a posthearing

consultative

physician]

is

within the discretion of the ALJ.”
9123

at

*38,

2016

WL

2909201

warranted

appears

to

be

Martz, 2016 U.S. App. LEXIS
at

*13

(citing

Demenech

v.

Secretary of the Dep’t of Health & Human Servs., 913 F.2d 882,
884
the

(11th
ALJ

Cir.
has

1990)
the

(assuming,

discretion

examination is warranted)).

without
to

deciding,

determine

that

whether

that

cross-

In Demenech, the Eleventh Circuit

held that, where the ALJ (1) “substantially relies upon a posthearing

medical

medical

evidence

report”
that

that

(2)

supports

“directly

the

contradicts

claimant’s

“cross-examination is of extraordinary utility.”
at 885 (emphasis added).

The

the

contentions,”
Id., 913 F.2d

Demenech court concluded that

Plaintiff’s due process rights were violated where a claimant
was not allowed to cross-examine a post-hearing physician who
wrote a report which was the “most prominent,” “crucial” piece
of supporting medical evidence and “primary basis” for the ALJ’s
decision that the claimant’s condition had improved to the point
that

he

could

return

to

work,

a

position

contradicted all of the other medical

25

which

directly

evidence in the case,

including the evidence from Plaintiff’s treating physician.
Applying Demenech to the facts of this case,

the Court

finds that the ALJ was not required to allow Plaintiff to crossexamine Dr. Kidd about his post-hearing consultative report in
order to comport with due process.

In this case, the ALJ did

not substantially rely on Dr. Kidd’s medical report.

To the

contrary, Dr. Kidd’s report was not the “primary basis” for the
ALJ’s decision.

In fact, the ALJ only gave it only “some”

weight, stating that it was not entitled to controlling weight
given the lack of a treating relationship.

(Tr. 40).

Moreover, Dr. Kidd’s report did not directly contradict the
medical evidence supporting the Plaintiff’s contentions. 17

To

the contrary, Dr. Kidd’s report is consistent with the treatment
notes of Plaintiff’s primary care physician, Dr. Chittom, which
reflect that Plaintiff was treated from approximately February
2010

to

January

2011

for

high

blood

pressure,

headaches,

depression, and anxiety and that, with medication therapy, her
conditions improved, and she was “doing well.”
359,

374,

396,

402).

Dr.

Chittom’s

17

notes

(Id. at 356,
further

reflect

While Dr. Kidd’s findings and opinions do contradict those of
one of Plaintiff’s treating physicians, Dr. Timberlake, the
Court has already determined that Dr. Timberlake’s opinions were
inconsistent with his own medical findings, as well as the
substantial medical evidence in the case and, thus, were
properly discredited by the ALJ. As previously noted, Plaintiff
does not take issue with the ALJ’s rejection of Dr. Timberlake’s
opinions.

26

largely normal physical and mental examinations, which is also
consistent with Dr. Kidd’s report.18
Dr.

Kidd’s

report

is

also

(Id.).
consistent

with

Plaintiff’s

treatment notes from the Rural Health Medical Program from 2009
to 2011 which show conservative medication treatment for high
blood pressure, headaches, dizziness, low back pain, swelling in
legs,

shoulder

pain,

and

physical examinations.
Dr.

Kidd’s

abdomen

pain

and

largely

normal

(Id. at 423-28).

report

is

also

consistent

with

Plaintiff’s

activities of daily living, which include living independently,
taking

care

cooking,

of

all

laundry),

of

her

taking

own

care

household
of

her

own

needs

(cleaning,

personal

needs,

driving, shopping, going to church, and walking up to two miles
at a time.

(Id. at 62, 68, 75, 252, 255-57).

Moreover, although Dr. Kidd ignored multiple requests by
the Agency to respond to Plaintiff’s submitted interrogatories,
the interrogatories were largely answered by the report itself,
as the ALJ found.

(Id. at 28).

Dr. Kidd’s report shows that he

18

Dr. Chittom’s notes also reflect that, after Plaintiff’s second
surgery to remove a recurring cyst from her non-dominant left
index finger, her wound was “well healed,” and she was “going to
start using it and getting range of motion back in it.” (Tr.
420).
In June, 2012, x-rays of Plaintiff’s left index finger,
taken when she presented to the emergency room for an infected
finger, indicated cellulitis, but there was “no cortical
destruction to suggest osteomyelitis.” (Id. at 450). Plaintiff
was prescribed an anti-inflammatory and an antibiotic and
released. (Id. at 444).

27

reached his conclusions based on his own tests and examination
findings; he specifically found that Plaintiff had no swelling
in her extremities and had grip strength of 5/5 bilaterally,
which

undoubtedly

led

to

his

opinion

that

Plaintiff

had

no

restriction in her ability to finger and feel; he discussed the
ailments that he considered, those being, scoliosis, back pain,
hypertension, COPD, carpal tunnel syndrome, and recurring cyst
on left index finger; and it is readily apparent from his report
that he would not have expected Plaintiff to miss three days of
work per month because of her impairments, as he found that she
had essentially no functional limitations whatsoever.

(Id. at

453-63, 495).
Therefore, based on the foregoing evidence, the ALJ did not
violate

Plaintiff’s

opportunity

to

due

process

cross-examine

consultative report.

Dr.

rights
Kidd

by

about

denying
his

her

the

post-hearing

See James v. Barnhart, 177 F. Appx. 875,

877 (11th Cir. 2006) (“Because the ALJ did not substantially
rely on [the] post-hearing report to deny [plaintiff] benefits,
and the report was consistent with the reports of three other
consultative physicians, and contradicted only the conclusory
and

unsupported

findings

of

two

of

[plaintiff’s]

treating

physicians, we can find no due process violation in the ALJ’s
denial

of

[plaintiff’s]

supplemental-hearing

(emphasis in original).

28

request.”)

Accordingly, Plaintiff’s claim must fail.
V.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

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

of

disability,

disability

insurance

benefits,

and

supplemental security income be AFFIRMED.
DONE this 28th day of September, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

29