GRESHAM v. COLVIN

Filing 15

ORDER affirming the determination of the Social Security Commissioner. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 4/24/2017. (efw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
SUSIE GRESHAM,
Plaintiff,
v.
NANCY A BERRYHILL,
Commissioner of Social Security,
Defendant.

:
:
:
:
:
:
:
:
:
:

CASE NO. 3:16-CV-48-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, denied Plaintiff’s application for disability insurance
benefits and Supplemental Security Income (SSI), finding that he is not disabled within
the meaning of the Social Security Act and Regulations. Plaintiff contends that the
Commissioner’s decision was in error and seeks review under the relevant provisions of
42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). All administrative remedies have been
exhausted. Both parties filed their written consents for all proceedings to be conducted
by the United States Magistrate Judge, including the entry of a final judgment directly
appealable to the Eleventh Circuit Court of Appeals pursuant to 28 U.S.C. § 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner’s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards
were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam).

“Substantial evidence is something more than a mere scintilla, but less than a
preponderance. If the Commissioner's decision is supported by substantial evidence, this
court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). The court’s role in
reviewing claims brought under the Social Security Act is a narrow one. The court may
neither decide facts, re-weigh evidence, nor substitute its judgment for that of the
Commissioner.1 Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). It must,
however, decide if the Commissioner applied the proper standards in reaching a decision.
Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam). The court must
scrutinize the entire record to determine the reasonableness of the Commissioner’s
factual findings.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

However, even if the evidence preponderates against the Commissioner’s decision, it
must be affirmed if substantial evidence supports it. Id.
The Plaintiff bears the initial burden of proving that she is unable to perform her
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). The Plaintiff’s burden
is a heavy one and is so stringent that it has been described as bordering on the
unrealistic. Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981).2 A Plaintiff
seeking Social Security disability benefits must demonstrate that she suffers from an

1

Credibility determinations are left to the Commissioner and not to the courts. Carnes v.
Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the
courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986) (per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered
prior to October 1, 1981.
2

impairment that prevents her from engaging in any substantial gainful activity for a
twelve-month period. 42 U.S.C. § 423(d)(1). In addition to meeting the requirements of
these statutes, in order to be eligible for disability payments, a Plaintiff must meet the
requirements of the Commissioner’s regulations promulgated pursuant to the authority
given in the Social Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine
if a Plaintiff is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20
C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the Plaintiff is
working.

Id.

If not, the Commissioner determines whether the Plaintiff has an

impairment which prevents the performance of basic work activities. Id. Second, the
Commissioner determines the severity of the Plaintiff’s impairment or combination of
impairments. Id. Third, the Commissioner determines whether the Plaintiff’s severe
impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the
Regulations (the “Listing”).

Id. Fourth, the Commissioner determines whether the

Plaintiff’s residual functional capacity can meet the physical and mental demands of past
work. Id. Fifth and finally, the Commissioner determines whether the Plaintiff’s residual
functional capacity, age, education, and past work experience prevent the performance of
any other work. In arriving at a decision, the Commissioner must consider the combined
effects of all of the alleged impairments, without regard to whether each, if considered
separately, would be disabling. Id. The Commissioner’s failure to apply correct legal
standards to the evidence is grounds for reversal. Id.

3

ISSUES
I.
Whether the ALJ assigned appropriate weight to the treating, examining, and
non-examining physicians’ opinions.
II.

Whether the ALJ properly considered any visual limitations.
Administrative Proceedings
Plaintiff Susie Ann Gresham filed an application for supplemental security income

on June 5, 2012 alleging that she became disabled to work on January 1, 2012. Her claim
was denied initially on September 19, 2012 and on reconsideration on February 8, 2013.
On March 19, 2013, she made a timely request for an evidentiary hearing, which was
held before an administrative law judge (ALJ) on May 15, 2014. Plaintiff appeared at the
hearing with the assistance of her attorney and gave testimony. Tr. 20. A vocational
expert (VE) also testified. Id. On October 3, 2014, the ALJ issued an unfavorable
decision. Tr. 17-39. Plaintiff requested review by the Appeals Council on November 17,
2014, but was denied on April 1, 2016.

Tr. 15-16, 1-6.

Having exhausted the

administrative remedies available to her under the Social Security Act, Plaintiff now
seeks judicial review of the final decision by the Commissioner to deny her application
for benefits. This case is ripe for review.
Statement of Facts and Evidence
Plaintiff was forty-seven years old at the time she filed her claim. Tr. 32. Her
education is limited and she has past relevant work as a housekeeper, commercial
cleaner, poultry processor, and cook. Tr. 32, 59. In conducting the five-step sequential
analysis for the evaluation of disability claims, the ALJ found that Plaintiff has not

4

engaged in substantial gainful activity since her application date and that Plaintiff has
severe impairments of degenerative disc disease in the spine and left hip as well as
obesity. Findings Nos. 1, 2; Tr. 22-24. In his step-three analysis, the ALJ determined
that these severe impairments, considered alone as well as in combination with one
another neither meet nor medically equal a listed impairment set forth in 20 C.F.R. Part
404, Subpart P, Appendix 1. Finding No. 3, Tr. 24. Next, the ALJ formulated a residual
functional capacity assessment (RFC) permitting Plaintiff to engage light work with
added postural, exertional, and nonexertional limitations. The ALJ found at step four that
this restricted RFC precluded Plaintiff’s return to her past relevant work. Finding No. 5,
Tr. 32. Application of the Medical-Vocational Guidelines by the ALJ at step five,
however, directed a finding of “not disabled,” since the added restrictions in Plaintiff’s
RFC assessment have little or no effect on the occupational base of unskilled work at the
light exertional level. Finding No. 9, Tr. 33.
DISCUSSION
In her brief before the Court, Plaintiff raises three assertions of error. She first
contends the ALJ gave less than significant weight to the opinion of her treating
physician without good. Second, she argues the ALJ failed to include any limitations in
the RFC assessment regarding her visual impairments and found that the MedicalVocational Guidelines directed a finding of “not disabled” without testimony by a VE.
Her third enumeration of error claims the ALJ gave only little weight to the opinions of
both examining and non-examining physicians without sufficient cause. Pl.’s Br. 1, 2,
ECF No. 13. The Commissioner responds that the decision by the ALJ is supported by
5

substantial evidence considering the record as a whole and was arrived at by the
application of the correct legal principles. Comm’r’s Br. 1, ECF No. 14. In addressing
the contentions of Plaintiff, the Court considers the first and third claims together and
then addresses the second claim.
I.
Did the ALJ assign appropriate weight to the treating, examining, and nonexamining physicians’ opinions?
In addition to her treating physician Dr. James Southerland, Plaintiff has been seen
by eight different medical doctors for complaints of chronic pain in her left hip. She saw
Dr. Del Campo on November 10, 2011, Dr. Parungao on June 12, 2012, Dr. Ludwig on
July 26, 2012, Dr. Greene on November 30, 2012, Dr. Sabatino on December 26, 2012,
Dr. Albinger on March 12, 2013, Dr. Ringer on June 15, 2013, and Dr. Forbaugh on
August 29, 2013.

These doctors all describe her symptoms as “mild” with only

“tenderness” to palpitation and “some discomfort.” Tr. 26-28. Radiological studies done
on August 16, 2012 show what the clinician described as an “unremarkable left hip.” Tr.
Ex. 8F/2. This is consistent with the notes of an examining physician, Romulo Parungao,
M.D., who on June 12, 2012 characterized her neck, back, and extremities as “essentially
normal.” Tr. Ex. 5F/13-15.
Her treating physician, James Southerland, M.D., however completed a “Medical
Opinion of Ability To Do Work related Activities” on May 5, 2014 which limited her to
less than two hours daily of sitting, standing, or walking and stated that she would need to
lie down one to two times in an eight hour work day. Tr. Ex. 17/F. The ALJ properly
discounted Dr. Southerland’s extreme opinion as inconsistent with the record as a whole

6

and contrary to results shown by objective medical testing. Tr. 29. The same is true of
the consultative examination Kelly Dixon-Martin, M.D. conducted on August 16, 2012.
Dr. Dixon-Martin observed only mild limp with normal range of motion and normal
imaging of the hip but imposed restrictions well beyond her clinical notations. Tr. 435438.
Opinions by a treating physician and, to a lesser extent, opinions of examining
physicians are entitled to greater weight when they are well-supported by medically
acceptable clinical and laboratory diagnostic methods and are not otherwise inconsistent
with or contradicted by other substantial evidence in the record.

20 C.F.R. §§

404.1527(d)(2), 416.927(d)(2); SSR 96-2p. Plaintiff’s extensive record of examination
by many physicians shows that the ALJ properly concluded that she has sufficient
functionality and ability to perform light work. When a treating or examining physician’s
opinion is unsupported by objective medical evidence or contradicted by the record as a
whole it may be disregarded or discounted. Johns v. Bowen, 821 F.2d 551, 555 (11th Cir.
1987). While Dr. Murray Gilman—a non-examining physician—opined in June 2014
that Plaintiff was limited to sedentary work, this opinion is conclusory and properly
discounted by the ALJ. Opinions by non-examining reviewing physicians are entitled to
little or no weight when contradicted by the medical evidence of record. Swindle v.
Sullivan, 914 F.2d 222, 226 (11th Cir. 1990). Plaintiff has not established that the ALJ
erred in the manner in which he addressed the opinions of Drs. Southerland, DixonMartin, and Gilman.

7

II.

Did the ALJ properly consider any visual limitations?
Plaintiff also contends that she has visual limitations which should have been

considered as restrictions in her RFC assessment. The only medical evidence of visual
restrictions comes from two State agency doctors who primarily noted that she would be
precluded from reading fine print or columns of figures. Close review of the record
evidence reviewed by these doctors shows that at the time her vision was tested by the
consultative examiner, she was not wearing corrective lenses. Tr. 437. The only specific
restriction related to vision imposed by the examining physician was the doctor’s opinion
that Plaintiff would not be qualified to drive commercially. Tr. 438-39. The examining
physician imposed no restrictions on reading fine print or fine motor manipulation. The
opinion of an examining physician is entitled to more weight than a non-examining
physician, and the ALJ is permitted to reject any doctor’s opinion when the evidence
supports a different conclusion. Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir.
1985). The ALJ did not err in the formulation of Plaintiff’s RFC assessment.
CONCLUSION
For the reasons stated above, the determination of the Social Security
Commissioner is affirmed.
SO ORDERED, this 24th day of April, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

8