JONES v. COLVIN

Filing 15

ORDER affirming the determination of the Social Security Commissioner. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 7/20/2017. (efw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
BOBBI ANTONIEYA JONES,
Plaintiff,
v.
NANCY A BERRYHILL,
Commissioner of Social Security,
Defendant.

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CASE NO. 4:16-CV-237-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 child’s disability
insurance benefits and Supplemental Security Income (SSI), finding that she was 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

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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.
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seeking Social Security disability benefits must demonstrate that she suffers from an
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.
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ISSUES
I.
Whether the ALJ assigned appropriate weight to Plaintiff’s treating
physician.
II.
Whether the ALJ properly determined that Counselor Hale is not an
acceptable medical source.
Administrative Proceedings
Plaintiff Bobbi Antonieya Jones filed applications for child’s disability insurance
benefits and supplemental security income on July 10, 2012, alleging disability beginning
on the same date. Her applications were denied initially on November 2, 2012 and on
reconsideration on March 5, 2013. She filed a written request for an evidentiary hearing
before an administrative law judge (ALJ) on March 13, 2013 and the hearing was held on
August 11, 2014. Plaintiff appeared at the hearing with her attorney and gave testimony,
as did an impartial vocational expert (VE). Tr. 17. The ALJ issued an unfavorable
decision denying her claims on November 7, 2014. Tr. 14-32. Plaintiff sought review by
the Appeals Council on December 22, 2014, but was denied on May 7, 2016. Tr. 7-13; 16.

Having exhausted the administrative remedies available to her under the Social

Security Act she now seeks judicial review of the Commissioner’s final decision to deny
her benefits.
Statement of Facts and Evidence
When the ALJ issued his decision, Plaintiff was twenty years of age. She has a
high school education and no past relevant work. Tr. 43, 203, 222, 236. In conducting
the five-step sequential analysis set out in the Commissioner’s regulations for the
evaluation of disability claims, the ALJ found at step two that Plaintiff has severe
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impairments of anxiety, attention deficit hyperactivity disorder (ADHD), and autism
spectrum disorder/Asperger’s type. Finding No. 3, Tr. 19. Next, he established at step
three that her impairments considered both alone and in combination with one another
neither meet nor medically equal one of the listed impairments found in 20 C.F.R. Part
404, Subpart P, Appendix 1. Finding No. 4, Tr. 20-21. Between steps three and four, the
ALJ formulated a residual functional capacity assessment (RFC) which permits Plaintiff
to engage in a full range of work at all exertional levels with restrictions to simple,
routine, repetitive tasks, occasional changes in the work setting and with occasional
interaction with the general public and coworkers, but no fast-paced or high production
demands. Finding No. 5, Tr. 21-27. At step four the ALJ found Plaintiff to have no past
relevant work. Finding No. 6, Tr. 27. At step five he posed hypothetical questions to the
VE and found Plaintiff to have the RFC to engage in substantial gainful activity as a
dining room attendant, kitchen helper, and driver helper, all of which are jobs available to
her in significant numbers in the national economy. Finding No. 10, Tr. 27. He therefore
found Plaintiff to be not disabled to work. Finding No. 11, Tr. 28.
DISCUSSION
I.

Did the ALJ assign appropriate weight to Plaintiff’s treating physician?
In her first assertion of error, Plaintiff contends that “[b]ecause the ALJ did not

apply the law properly by stating with specificity his reasons for not assigning weight to
the opinion of a treating medical source, his decision is not based on substantial evidence
and must be remanded.” Pl.’s Br. 17, ECF No. 13. The evidence in question is from

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school psychologist Lee A. Wright, who saw Plaintiff only once—on January 3, 2013—
for an evaluation at the request of her school IEP team. Ex. 10F, Tr. 413-21.
Ms. Wright noted that the request was for a complete re-evaluation and
recommendations for extended time for post-secondary tests such as the Scholastic
Aptitude Test (SAT) or the American College Test (ACT). Tr. 414. She further noted
that Plaintiff was characterized as a “good student who experienced significant difficulty
interacting with peers.” Id. At the time of the evaluation, Plaintiff was a high school
senior who was eighteen years old and repeating the twelfth grade. Tr. 413, 414. The
objective tests administered by Ms. Wright were the Stanford-Binet Intelligence
Scale/5th Edition, Bender Visual Motor Gestalt Test, Woodcock-Johnson Tests of
Achievement-III, and Behavior Assessment System for Children-2. The tests, results,
and interpretations by Ms. Wright were specifically limited to use in assisting the school
in making educational decisions. Tr. 413.
In her evaluation, Ms. Wright reviewed Plaintiff’s medical records and confirmed
that she has General Anxiety Disorder, ADHD, and Asperger’s. Tr. 414. All three of
these disorders were found by the ALJ to be severe impairments in his step-two analysis
of Plaintiff’s claim. Finding No. 3, Tr. 19. Ms. Wright also found her to have good
reading comprehension skills and good math calculation skills, but noted her need for
additional time to complete assigned tasks. Tr. 420, 421. In formulating Plaintiff’s RFC,
the ALJ specifically limited her to jobs with no fast-paced or high production demands.
Finding No. 5, Tr. 21. Ms. Wright found Plaintiff to engage in evasive conduct to avoid
social contact and not adapt readily to changes in her environment. Tr. 419. The ALJ
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further restricted her RFC to work requiring only simple, routine, repetitive tasks; only
occasional changes in the work setting; and only occasional interaction with the public
and co-workers. Finding No. 5, Tr. 21, 22.
The record supports two conclusions. First, the recommendations made by Ms.
Wright were well reasoned and apparently followed by school staff since Plaintiff
graduated from high school with a regular diploma. She testified that her grades were
“A’s and B’s and sometimes a C” and that she intended to pursue a college education.
Tr. 48. Second, the record shows that the ALJ expressly considered Ms. Wright’s report
and followed all of her primary findings in formulating Plaintiff’s RFC. He did not
expressly assign weight to her findings but a comparison of her report with the RFC
shows that he clearly considered and followed it.
Despite Plaintiff’s assertion, a school psychologist is not an acceptable medical
source under the Commissioner’s regulations except for purposes of establishing mental
retardation, learning disabilities, or borderline intellectual functioning. SSR06-3p. The
ALJ did not find that Plaintiff has any of these three disorders as a severe impairment and
Plaintiff does not argue that the ALJ erred at step two. The record shows that Plaintiff
received a regular high school diploma with good grades, strengths in both reading and
mathematics, and was characterized as a good student with plans to attend college. No
evidence shows that she has an intellectual disability and she does not assert that she
does. Neither does the record evidence show that Ms. Wright saw Plaintiff more than
once (on January 3, 2013) and Ms. Wright cannot be considered a “treating” source.
Plaintiff’s first contention is without merit.
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II.

Did the ALJ properly determine that Counselor Hale is not an acceptable

medical source?
Plaintiff also argues that the ALJ “failed to properly assess and assign proper
weight to the opinions of Counselor Hale.”

She contends that the ALJ erred in

determining that “Ms. Hale is not an acceptable medical source.” Pl.’s Br. 15, 17. A
review of the record evidence shows that Donna Darity Hale is a licensed professional
counselor who began seeing Plaintiff in September 2011. Her opinions appear in the
record in the form of a taped statement she gave to Plaintiff’s counsel on August 7, 2014.
Ex. 12F, Tr. 431-37. In that taped statement she was asked by Plaintiff’s counsel if
Plaintiff could “handle some of the things that she would need to be able to do in an
unskilled work situation” and whether Plaintiff has “the ability to remember work like
procedures.” Ms. Hale responded “I think she possibly could. We ought to try to get her
into that type of setting where she could do menial tasks.” Tr. 435. Counsel also asked if
“there is a possibility that she could understand and remember and carry out very short
and simple instructions.” Ms. Hale responded affirmatively, saying “yes, I think she
could to begin with. I just don’t know if that could be a sustained situation for her
especially if it included social interactions. That may cause her difficulty.” Id.
In his RFC assessment, the ALJ restricted Plaintiff to simple, routine, repetitive
tasks and added restrictions to only occasional changes in the workplace and occasional
interactions with the public and co-workers. Finding No. 5, Tr. 21. This adequately
accounts for Ms. Hale’s beliefs that Plaintiff can work under certain circumstances. As a
licensed professional counselor, Ms. Hale is not an “acceptable medical source” under the
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Commissioner’s regulations.

20 C.F.R. §§ 404.1513(d), 416.913(d), SSR06-3p.

Nonetheless, the ALJ expressly considered her statements and explained the weight given
to her opinions in a manner that allows Plaintiff and the Court to follow his reasoning. No
error is found in the manner in which the ALJ addressed record evidence from Ms. Hale.
CONCLUSION
For the reasons stated above, the determination of the Social Security
Commissioner is affirmed.
SO ORDERED, this 20th day of July, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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