# Carson v. Social Security Administration, Commissioner

> District Court, N.D. Alabama · March 18, 2020

URL: https://www.frixlaw.com/law-library/cases/9989355

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

AMBROGA CARSON, ]
]
Plaintiff, ]
]
v. ] CIVIL ACTION NO.
] 2:18-cv-01986-KOB
ANDREW SAUL, Commissioner of Social ]
Security, ]
]
Defendant. ]

MEMORANDUM OPINION
I. INTRODUCTION
On June 23, 2017, the claimant, Ambroga Carson, protectively filed a Title II application
for a period of disability and disability insurance benefits and a Title XVI application for
supplemental social security income. In his application, the claimant alleged disability beginning
on October 15, 2016 because of PTSD, chronic insomnia, IBS, erectile dysfunction, and anxiety.
The Commissioner denied the application on September 29, 2017. The claimant then timely
requested a hearing before an Administrative Law Judge and the ALJ held a hearing on April 15,
2018.
In a decision dated June 7, 2018, the ALJ found that the claimant was not disabled as
defined by the Social Security Act and was thus ineligible for social security disability benefits.
The Appeals Council rejected a subsequent request for review. Consequently, the ALJ’s
decision became the final decision of the Commissioner. The claimant has exhausted his
administrative remedies and the court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). For the reasons stated below, the court will affirm the decision of the Commissioner.
II. ISSUES PRESENTED
The claimant presents the following issues for review:
(1) whether the ALJ erred by failing to properly evaluate the medical opinions on the
record;

(2) whether the ALJ erroneously discounted the claimant’s 100% disability rating from
the VA when evaluating the claimant’s residual functioning capacity;
(3) whether the ALJ erred by finding the claimant’s irritable bowel syndrome and
insomnia to be non-severe impairments; and
(4) whether the ALJ failed to afford the claimant a full and fair hearing.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. The court must find
the Commissioner’s decision conclusive if he applied the correct legal standards and if
substantial evidence supports his factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel,
129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

“No presumption of validity attaches to the [Commissioner’s] legal conclusions,
including the determination of the proper standards to be applied in evaluating claims.” Walker,
826 F.2d at 999. The court will affirm those factual determinations that are supported by
substantial evidence. “Substantial evidence is more than a scintilla, but less than a
preponderance. It is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
The court must keep in mind that opinions such as whether a claimant is disabled, the
nature and extent of a claimant’s residual functioning capacity, and the application of vocational
factors “are not medical opinions . . . but are instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive of a case; i.e., that
would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d).
Whether a claimant meets a listing and is qualified for social security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh evidence, or

substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005). So, even if the court were to disagree with the ALJ about the significance of
certain facts, the court has no power to reverse that finding as long as substantial evidence in the
record supports it.
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not only
look to those parts of the record that support the ALJ’s decision, but also must view the record in
its entirety and take account of evidence which detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
IV. LEGAL STANDARD

Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months . . . .”
To determine whether a person is entitled to disability benefits, the Commissioner
employs a five step, sequential evaluation process:
(1) Is the person presently unemployed?

(2) Is the person’s impairment severe?

(3) Does the person’s impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?

(5) Is the person unable to perform any other work within the economy?

An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative answer
to any question, other than step three, leads to a determination of “not disabled.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
Several rules apply to the five-step process that govern the court’s review of the ALJ’s
decision in this case. At step two, an impairment is severe if it significantly affects a claimant’s
ability to perform work-related activities, regardless of his age, education and work experience.
See 20 C.F.R. §§ 404.1520(c), 404.1521(a). At step five, when evaluating whether the claimant
can perform any other work within the economy, the ALJ commits reversible error if he fails to
state with particularity the weight he gave different medical opinions and explain his reasons for
doing so. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). Also at step five, if a
disability rating from the VA exists on the record, then “the ALJ must seriously consider and
closely scrutinize the V.A.’s disability determination and must give specific reasons if the ALJ
discounts that determination.” Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673 App’x 902,
904 (11th Cir. 2016) (citing Rodriguez v. Schweiker, 640 F.2d 682, 684 (5th Cir. 1981)). And
the ALJ commits reversible error if he does not afford the claimant a full and fair hearing, which
includes the claimant’s due process right to the “opportunity to be heard ‘at a meaningful time
and in a meaningful manner.’” Martz v. Commissioner, 649 F. App’x 948, 962 (11th Cir. 2016)
(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)); Kelley v. Heckler, 761 F.2d 1538,
1540 (11th Cir. 1985)). The court will explain these rules in further detail when analyzing the
claimant’s assignments of error below.
V. FACTS
At the time of the ALJ’s adjudication, the claimant was 45 years old. The claimant has a
12th grade education and past relevant work experience as a combat rifle crew member and drill
instructor in the U.S. Marine Corps and as a customer service clerk in the Social Security

Administration. The claimant alleges disability based on PTSD, chronic insomnia, IBS, erectile
dysfunction, and anxiety.
The Claimant’s Medical Records
On August 20, 2015, the claimant met with Michelle Nault, LPC, of Cahaba Oaks. (R.
659-60). The claimant reported high levels of stress and hyper-vigilant behavior. He said that he
had ideations of impending danger. Ms. Nault noted in her report that the claimant had “fair to
good” concentration and that his memory was active and within normal limits. Ms. Nault noted
that the claimant’s GAF score was 45. When the claimant returned to see Ms. Nault on
November 11, 2015, she noted that the claimant’s GAF score was 50.
On November 17, 2015, the claimant met with Dr. James Flournoy at the VA Medical

Clinic. (R. 461-69). Dr. Flournoy completed a PTSD disability questionnaire with the claimant.
Dr. Flournoy noted that the claimant had occupational and social impairment with an occasional
decrease in work efficiency along with intermittent periods where he could not perform
occupational tasks. Dr. Flournoy noted that the claimant’s general functioning was satisfactory
with normal routine behavior, self-care, and conversation.
On March 8, 2016, Ms. Nault completed a “Certificate of Health Care Provider for
Employee’s Serious Health Condition.” (R. 845-48). Ms. Nault’s report indicated that she had
counseled the claimant since August 2015. After reviewing a description of the claimant’s job as
a customer service representative at the Social Security Administration, she opined that the
claimant could not perform the job function of interfacing with the public in person or on the
phone due to PTSD symptoms. She opined that his sleep could be interrupted by his PTSD
symptoms, making him unable to keep regular work hours and requiring him to take time off
work. She opined that the claimant would need a flexible schedule that allowed him to attend up

to three therapy sessions a week and to see a psychiatrist. She also opined that the claimant
would experience one flare-up per week that could last one to two days and would force the
claimant to stay at home.
On September 1, 2016, Dr. Erin Hanover, a psychiatrist at Cahaba Oaks, completed a
PTSD disability form for the claimant. (R. 772-77). Dr. Hanover’s report indicated that she had
seen the claimant from July 2015 to January 2016. Dr. Hanover opined that the claimant’s
mental diagnosis resulted in total occupational and social impairment. Dr. Hanover’s report also
indicated that the claimant’s PTSD symptoms had improved in January 2016.
On October 26, 2016, Dr. Mary Hawke filled out a disability benefits questionnaire with
the claimant. (R. 594-98). The claimant reported alternating days of diarrhea and constipation

with some abdominal cramping over the last six months. The claimant said that he was taking
Metamucil and Tums to help alleviate the symptoms of diarrhea and constipation.
On November 15, 2016, Ms. Nault wrote a letter to the claimant’s employer requesting
that he be excused from work from October 31 through November 30, 2016 because of PTSD
symptoms. (R. 791-93). She also requested that the claimant have a change in position once he
returned to work.
On January 30, 2017, the VA sent the claimant a letter informing him about his
entitlement to VA benefits. (R. 151-68). The VA determined that the claimant was entitled to a
total monthly benefit of $3,542.98. (R. 151). The VA decided on this amount by reviewing the
medical records discussed above and assigning disability percentages to each of the claimant’s
military service-related medical conditions. The VA assigned a 30% rating to the claimant’s
IBS, the highest possible rating for IBS. (R. 153). The VA assigned a 100% rating to the
claimant’s PTSD. (R. 154). And the VA assigned the claimant a 100% combined disability

rating, which meant that the VA considered the claimant totally disabled under VA regulations
and that the claimant was entitled to the maximum allowed benefits from the VA. (R. 154).
On April 20, 2017, the claimant met with Dr. Nadia Tayeb at the VA Medical Center.
(R. 378-84). The claimant reported an overall improvement in PTSD and anxiety symptoms,
improved coping skills, and successful application of behavioral techniques acquired in therapy.
He said that he was a light sleeper and generally only slept three to four hours a night. He denied
suicidal and homicidal ideations or symptoms of mania or psychosis. He said that he had normal
energy and appetite. His mental status exam was normal. Dr. Tayeb advised the claimant to
continue taking Fluoxetine and Mirtazapine, to start taking Trazodone for sleep, and to continue
therapy for PTSD. The psychiatry note attached to Dr. Tayeb’s report indicated that the claimant

only complained about his sleep issues. He also said that he was considering discontinuing his
therapy and that he had mixed feelings about his work because he was getting paid less.
On May 2, 2017, Dr. Muhammad Kalim Ali conducted a neurological exam on the
claimant. (R. 374-76). Dr. Ali noted that the claimant’s memory was grossly intact and that the
claimant demonstrated good attention and concentration. The claimant also reported having
chronic IBS, feeling constipated most of the time, and experiencing abdominal discomfort at
times. He said that he was currently taking Metamucil and stool softeners for his constipation.
Dr. Ali advised him to add more fiber to his diet and stay hydrated.
On July 12, 2017, Kristen Foster contacted the claimant to notify him of PTSD services
at the VA Medical Center through the PTSD clinical team and other available resources. (R.
720). The claimant declined all referral options and indicated that he was fine with his current
mental health providers. He also denied any significant mental health concerns at that time.

On July 19, 2017, the claimant saw Dr. Sebastien at the VA Medical Center psychiatry
clinic. (R. 711-19). The claimant said that he stopped working because it was too stressful. The
claimant said that when he was working he would complete his work in two to three hours and
that in his free time he did things that “did not go well with others.” He said he was currently
doing some volunteer work. He reported periods of moodiness and getting aggravated easily.
Although the claimant’s mental exam was normal, Dr. Sebastien noted that the claimant’s
conditions had worsened some.
On September 19, 2017, the claimant saw Dr. Sebastien again. (R. 902-09). The
claimant said that he did housework like laundering clothes and preparing dinner, and that he
liked to watch television and read. He said that he did not leave the house much on weekdays

except to go to his medical appointments. He said that he did not feel anxious at home and that
he did not socialize outside of his family. The claimant said that he had no other significant
issues except that he startled easily. He said that his sleep had improved and he did not
experience nightmares. Overall, Dr. Sebastien noted improvement in the claimant’s condition.
On September 29, 2017, Dr. Thomas Amason, a state agency medical consultant,
completed a disability determination explanation for the claimant. (R. 75-79, 84-86). Dr.
Amason reviewed the entire evidence record and opined that the claimant’s IBS was a non-
severe impairment. He noted that the claimant had normal physical functioning, including
normal abdominal and gastrointestinal functioning.
Also on September 29, 2017, Dr. Lee Blackmon, a state agency mental health consultant,
completed a medically determinable impairments and severity analysis and assessed the
claimant’s mental residual functional capacity based on his review of the entire evidence record.
(R. 80-84). Dr. Blackmon opined that the claimant would benefit from a flexible schedule;

might miss one or two days a month of work because of psychiatric signs and symptoms; would
need his own work area to minimize anxiety; could handle only non-intensive and casual
interaction and contact with the general public; could handle only casual, non-confronting, or
supportive criticism and feedback from supervisors and coworkers; and should experience only
infrequent and gradually introduced changes in the workplace.
The ALJ Hearing
On April 5, 2018, the ALJ held a hearing at which the claimant appeared without
representation. At the hearing, the claimant testified that he had last worked for the Social
Security Administration in April 2017. (R. 37). He claimed that his hours dwindled down as his
PTSD symptoms negatively affected his ability to work.

The claimant testified that he had last received treatment for his mental health issues at
the VA in January or February 2018. (R. 39). He said that he was taking medications as
prescribed by the VA doctors for his mental health issues. The claimant also reported attending
counseling sessions with Ms. Nault during this time.
When the ALJ asked the claimant if any of his treating medical providers recommended
specific restrictions of functioning, the claimant testified that Ms. Nault decided that he needed
sporadic breaks from work. (R. 41-42). The ALJ acknowledged Ms. Nault’s treatment notes
that indicated that the claimant’s symptoms had increased due to daily stressors in the workplace,
that the claimant would need one to two days off per week, and that he needed a change in job
position to better suit his needs.
The ALJ then stopped the hearing to inform the claimant about his right to representation.
(R. 43-45). The ALJ reviewed the “Waiver of Right to Representation” form with the claimant

and made sure that the claimant understood the waiver. The claimant indicated that he
understood all the terms of the waiver and signed the document.
Next, the ALJ asked the claimant to describe, in his own words, how the evidence in his
case showed that he was unable to perform the functions of any job. (R. 45-47). The claimant
began by explaining how he prepared for the hearing. He said that he had not left the house in
three days because he had been concerned that he might miss the hearing if he did. He claimed
that he had not slept two of the past three nights and that he only slept two to three hours the
previous night. He said that he woke up four-and-a-half-hours before the hearing to prepare
himself. He arrived at the location of the hearing almost four hours before it started to further
prepare himself mentally. The claimant testified that going to work every day required the same

amount of mental preparation.
The ALJ asked the claimant to explain his difficulty in performing jobs, rather than
preparing for jobs. (R. 46-47). The claimant testified that his stress levels increased quickly and
that his panic attacks, anger, and frustration caused him to shut down and not think clearly. He
testified that he often did not have the energy to perform menial tasks such as showering,
shaving, or speaking to family members. He claimed that he had maintained employment at the
Social Security Administration for as long as he did only because he “made a decision” to
provide for his family, but that the stress of work eventually resulted in a complete inability to
interact with his family.
Next, the ALJ asked the claimant about his ability to perform a predominately sedentary
hypothetical job. (R. 48). At this hypothetical job, he could stand if he needed, he would be
sequestered from other co-workers and not have to interact with other people, and he would
examine objects and make assessments based on certain criteria. The claimant responded that he

previously had a job that met that description, but could not perform his work responsibilities
because of high stress levels and lack of sleep.
The claimant then talked about his experience in the military as a drill instructor. (R. 49).
He testified that he was initially successful in advancing his career in the military but had to
retire in early 2013 because he could no longer function properly.
Next, the claimant called his wife to testify as a witness. (R. 50-57). The claimant’s wife
testified that her husband’s PTSD was “really, really bad.” She testified that he got upset easily
and acted “kind of like a light switch, he turns on, he turns off.” She testified that he could not
handle any stressors and struggled with severe anxiety. She claimed that when things got to be
too much for him, the claimant would lie down in bed and not leave the bed for a week. She

testified that the claimant had experienced only about 10 good days in the past month.
The claimant’s wife testified that the claimant suffered from IBS which meant “he has
diarrhea and he vomits all the time.” (R. 52). She testified that her husband’s illness prevented
him from being able to function as a father. She said that he also struggled with memory loss
and would often forget things.
The claimant’s wife testified that they had been together eight years and married for
nearly five years. She said that they met while they were both in the military. She claimed that
he used to consume more alcohol, but had “really cut back.” She said that the claimant does not
like to drink but sometimes needs alcohol to “get off the edge.” (R. 55). She also testified that
the claimant had flashbacks, nightmares, and night sweats.
Next, the ALJ called a vocational expert, Renee Smith, to testify. (R. 58-63). The VE
testified that she had reviewed the information concerning the different jobs the claimant had

performed over the last 15 years and she provided a thorough description of these jobs and the
skills required to perform them. The ALJ posed a hypothetical question about an individual who
would need a separate work area with at least three feet of separation from co-workers, could
handle only occasional or brief interaction with the public, co-workers, or supervisors, and
needed infrequent or gradual introductions of changes in work setting or work expectations. The
ALJ asked the VE if this hypothetical individual could perform any of the work that the claimant
had previously done. The VE said that the hypothetical person would not be able to perform any
of the claimant’s past jobs, but the VE identified other unskilled jobs with medium, light, or
sedentary exertion that this hypothetical individual could perform. These jobs included furniture
cleaner, crate liner, and a marker. The VE testified that these jobs typically existed in different

shifts across the country.
Next, the ALJ asked the VE to consider another hypothetical individual who had the
same limitations but also would need unscheduled breaks and might have absences for medical
treatment. (R. 62-63). The VE responded that the vocational acceptable tolerance for being off-
task was no more than 15% of the workday and that no more than two days of absence from
work per month would be allowed. The VE testified that her testimony was consistent with the
DOT and her training, education, and experience in the field.
The claimant then questioned the VE. (R. 63-65). He asked her to clarify her answer
regarding work absences and being off-task during the workday. The VE repeated her previous
answers to the question.
At this point in the hearing, the claimant’s wife attempted to interject, but the ALJ

stopped her. (R. 65-66). The ALJ instructed the claimant’s wife that she could only respond to
questioning from the claimant. After further conferring with his wife, the claimant asked the
ALJ to stop the hearing and allow him the opportunity to obtain representation because he did
not understand any of the VE’s answers. The ALJ reiterated the VE’s answers for the claimant.
(R. 67).
The claimant again asked for an opportunity to seek representation and reconvene at a
later date. The ALJ agreed to give the claimant that opportunity. The ALJ told the claimant,
“[i]f you want to have a supplemental hearing with an attorney I’ll ask you, number one, to retain
an attorney or other qualified representative and then your attorney or other qualified
representative can file a request for a supplemental hearing.” (R. 69). The claimant expressed

concern that he would not be treated fairly because of his previous employment with the Social
Security Administration, and the ALJ assured the claimant that he would have a fair hearing and
explained where the hearing might take place. No evidence shows that the claimant obtained a
representative, that he filed a request for a supplemental hearing, or that a supplemental hearing
took place.
The ALJ’s Decision
In a decision dated June 7, 2018, the ALJ found that the claimant was not disabled as
defined by the Social Security Act. First, the ALJ found that the claimant met the insured status
requirements through December 31, 2021 and that the claimant had not engaged in substantial
gainful activity since the alleged onset date of October 15, 2016. (R. 16-17).
Next, the ALJ found that the claimant’s anxiety disorders constituted a severe
impairment. (R. 17-18). The ALJ found that the claimant’s IBS was non-severe because his

treating physicians had only attempted conservative treatment measures and Dr. Amason, the
state agency medical consultant, opined that the claimant’s IBS was non-severe. The ALJ also
found that the claimant’s insomnia and history of alcohol consumption did not produce more
than minimal functional limitations that had lasted at least twelve months and that those two
conditions were non-severe impairments.
Next, the ALJ analyzed whether the claimant had an impairment or combination of
impairments that met or medically equaled the severity of one of the impairments included in 20
C.F.R. Part 404, Subpart P, Appendix 1. (R. 18-19). The ALJ started his analysis with
considering whether the claimant’s impairments satisfied the paragraph B criteria. The ALJ
noted that the claimant’s impairments would satisfy the paragraph B criteria if the claimant

demonstrated at least one extreme or two marked limitations in a broad area of functioning. The
ALJ relied on Dr. Blackmon’s opinion in conducting this analysis. The ALJ noted that in
September 2017, Dr. Blackmon opined that the claimant’s mental impairments resulted in no
limitation in understanding, remembering, or applying information; moderate limitation in
interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and
moderate limitation in adapting or managing oneself. (R. 18-19). Though Dr. Blackmon did not
examine the claimant, the ALJ afforded Dr. Blackmon’s opinion significant weight because “he
reviewed all evidence of record and based his opinion upon his medical expertise, his review of
the evidence, and his familiarity with the disability program and its requirements.” (R. 19). The
ALJ also credited Dr. Blackmon because he “provided specific reasons for his opinions about the
claimant’s degree of functional limitation, showing these opinions grounded in both the objective
medical evidence and the claimant’s allegations regarding symptoms and limitations.” (R. 19).
The ALJ then found that the claimant had only a mild limitation in understanding,

remembering, or applying information. (R. 19). To support his finding, the ALJ noted that
mental status exams conducted during the claimant’s visits to the VA and with Ms. Nault
repeatedly found the claimant’s memory to be grossly intact. The ALJ also noted that Dr.
Blackmon opined that the claimant had no limitation of understanding, remembering, or applying
information. Based on this evidence, the ALJ questioned the claimant’s testimony that he
experienced memory loss.
The ALJ then found that the claimant had moderate limitations in interacting with others;
concentrating, persisting, or maintaining pace; and adapting or managing himself. (R. 19). The
ALJ based his finding on the medical records that showed that the claimant’s stress and
irritability symptoms improved with treatment, mental status exam results that showed the

claimant’s improved attention and concentration, and Dr. Blackmon’s same opinions on the
matter.
Having found that the claimant’s mental impairments did not cause one extreme or at
least two marked limitations in a broad area of functioning, the ALJ found that the claimant’s
impairments did not satisfy the paragraph B criteria.
Next, the ALJ considered whether the claimant’s impairments satisfied the paragraph C
criteria. (R. 19). The ALJ found that the evidence failed to establish a presence of the paragraph
C criteria because the record did not establish a medically documented history of a disorder over
a period of at least two years and evidence of both treatment that diminished the claimant’s
symptoms and only minimal capacity to adapt to changes in the claimant’s life.
Next, the ALJ found that the claimant had the residual functional capacity to perform
medium work as defined in 20 C.F.R. 404.1567(c), except that he had the following non-

exertional limitations: he needed a separate work area with at least three feet of separation from
other co-workers; his interaction with the public, co-workers, and supervisors should be no more
than brief and occasional; and any change in his work setting or work expectations should be
infrequent and gradually introduced. (R. 20-22).
The ALJ held that, though the claimant’s medically determinable impairments could
reasonably be expected to cause some symptoms and functional limitations, the claimant’s
statements concerning the intensity, persistence, and limiting effects of the symptoms were not
entirely consistent with the medical evidence and other evidence in the record. (R. 21).
Specifically, the ALJ noted that the record indicated that the claimant had received
mental health treatment for PTSD, including medication and therapy, that improved his

symptoms and mental health functioning. (R. 21). The ALJ noted that the claimant had never
been hospitalized for his mental health issues. The ALJ found that the record showed that the
claimant denied suffering from nightmares and did not experience homicidal or suicidal
ideations. And the ALJ noted that medical reports indicated that the claimant’s appetite and
energy were fair and his mental status exam was normal.
The ALJ noted that the claimant visited with a psychiatrist at the VA in 2017 and
reported that he had no anxiety at home and had no other significant issues except that he startled
easily. The ALJ noted that, in July 2017, the claimant declined referral options for PTSD
services at the VA, indicating that he was satisfied with his current mental health providers and
denied any significant mental health concerns at that time. The claimant also reported doing
volunteer work and being capable of performing all of his work duties in only a few hours. (R.
21-22).
The ALJ then turned to the opinion evidence in the record. First, the ALJ assigned Dr.

Flournoy’s opinion good weight because it was consistent with the totality of the evidence. (R.
22). Next, the ALJ gave only some weight to Ms. Nault’s opinions because, as a Licensed
Professional Counselor, she was not an acceptable medical source, and her opinions were not
supported by objective evidence or consistent with the totality of the evidence. (R. 22). The
ALJ also assigned some weight to Dr. Hanover’s opinions because her opinions were not entirely
consistent with the totality of the evidence or even her own treatment records that indicated that
the claimant’s mental functioning improved with treatment, and because Dr. Hanover had not
seen the claimant in eight months at the time she submitted her opinions. (R. 23). And the ALJ
reviewed the claimant’s GAF scores and assigned them only some weight because they were not
consistent with the totality of the evidence, especially the evidence showing that the claimant’s

mental functioning improved with treatment. (R. 23).
The ALJ then assigned significant weight to Dr. Blackmon’s opinions regarding the
claimant’s RFC because Dr. Blackmon reviewed all of the evidence on record, based his
opinions on his own medical expertise, and provided specific reasons for his opinions grounded
in both the objective medical evidence and the claimant’s statements of his symptoms and
limitations. (R. 23).
Next, the ALJ considered the claimant’s 100% disability rating from the VA. (R. 24).
The ALJ noted that he was not bound by decisions or disability ratings from the VA or other
agencies under 20 CFR §§ 404.1504 and 416.904, but he acknowledged that he was required to
evaluate the VA’s disability rating because it may provide insight into the claimant’s
impairments and show the degree of disability that the VA determined based on the agency’s
own rules. The ALJ ultimately gave the 100% disability rating from the VA only some weight
because the ALJ found that the rating did “not correlate with any specific work-related mental or

physical limitations that assist the Administrative Law Judge in making a determination of the
claimant’s residual functional capacity.” (R. 24).
At step four of the sequential evaluation process, the ALJ determined that the claimant
could not perform his past relevant work based on the VE’s testimony. (R. 24-25). Then, at step
five, the ALJ considered the claimant’s age, education, work experience, and residual
functioning capacity and determined that jobs existed in significant numbers in the national
economy that the claimant could perform. (R. 25-26). As support for his decision, the ALJ cited
the VE’s testimony that the claimant could work as a furniture cleaner, crate liner, or marker.
Having found that jobs existed in significant numbers in the national economy that the
claimant could perform, the ALJ found that the claimant was not disabled under the Social

Security Act. (R. 26).
VI. DISCUSSION
A. Whether the ALJ Properly Evaluated the Medical Opinion Evidence
The claimant first argues that the ALJ committed several errors in his evaluation of the
medical opinion evidence in the record. The claimant contends that the ALJ erroneously (1)
assigned significant weight to the opinion of Dr. Blackmon, a reviewing—not treating or
examining—source; (2) assigned only some weight to the opinion of Dr. Hanover, a treating
physician; (3) assigned only some weight to Ms. Nault’s opinion; (4) assigned only some weight
to the claimant’s GAF scores; and (5) omitted from the claimant’s RFC the part of Dr.
Fluornoy’s opinion that the claimant would experience occasional decreases in work efficiency
and intermittent periods of inability to perform tasks. (R. 8-14). For the following reasons, the
court finds that the ALJ did not commit reversible error in his evaluation of the medical opinion
evidence.

The ALJ is responsible for assessing the medical evidence and determining a claimant’s
residual functioning capacity. See 20 C.F.R. § 404.1526; Walker, 826 F.2d at 1000 n.1. When
an ALJ assesses medical opinions in the record to determine the claimant’s RFC, the ALJ must
“state with particularity the weight he gives to different medical opinions and the reasons why.”
McCloud v. Barnhart, 166 F. App’x 410, 418–19 (11th Cir. 2006) (citing Sharfarz, 825 F.2d at
279).
The ALJ in this case analyzed opinions from treating sources and from non-treating
sources. The ALJ must give substantial weight to the opinion of a treating source if medically
acceptable clinical and laboratory diagnostic techniques supports it and the opinion is not
inconsistent with the other evidence in the record. 20 C.F.R § 404.1527(c); Phillips v. Barnhart,

357 F.3d 1232, 1240 (11th Cir. 2004). If the ALJ does not assign substantial weight to a treating
physician’s opinion, then the ALJ must provide good cause for doing so. 20 C.F.R. §
404.1527(c); Lewis v. Callahan, 125 F.3d 1436, 1440–41 (11th Cir. 1997). Good cause exists to
not assign substantial weight to a treating physician’s opinion 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.” Phillips, 764 F.2d at 1241. And an ALJ can credit the opinion of a non-treating source
over the opinion of a treating source if substantial evidence supports the ALJ’s decision to do so
and the ALJ articulates good cause for his decision. Id.; Sryock v. Heckler, 764 F.2d 834, 835
(11th Cir. 1985); see Forrester v. Comm’r of Soc. Sec., 455 F. App’x 899, 902 (11th Cir. 2012)
(finding that “the ALJ did not err by crediting the opinions of non-treating sources over those of
the treating physician” because the treating physician’s opinion “was not bolstered by the
evidence” and the evidence supported a contrary opinion reached by non-treating sources).

Here, because Dr. Blackmon was only a reviewing source and did not treat or examine
the claimant, the claimant argues that the ALJ erroneously afforded Dr. Blackmon’s opinion
significant weight and unreasonably credited his opinion over the opinion of the claimant’s
treating physician, Dr. Hanover. The ALJ assigned only some weight to Dr. Hanover’s opinion
that the claimant’s mental condition “resulted in total occupational and social impairment.” (R.
23). On the other hand, the ALJ assigned significant weight to Dr. Blackmon’s opinion that the
claimant had a less limited RFC. (R. 23). But, contrary to the claimant’s argument, the ALJ
articulated good cause for doing so and substantial evidence supports his decision.
The ALJ explained that he afforded lesser weight to Dr. Hanover’s opinions “because
they are not entirely consistent with her treatment records or the totality of the evidence, which

documents that the claimant’s mental functioning improved with treatment.” (R. 23). The ALJ
specifically noted that Dr. Hanover had not seen the claimant in eight months at the time she
completed the PTSD Benefits Questionnaire on which she marked that the claimant had “total
occupational and social impairment.” (R. 23, 773). The ALJ also specifically noted that Dr.
Hanover reported during her last visit with the claimant in January 2016 that the claimant’s
PTSD symptoms had improved. (R. 23, 803).
And the record supports the questions that the ALJ raised about Dr. Hanover’s opinion.
As the ALJ stated, Dr. Hanover’s notes of her five sessions with the claimant show that the
claimant’s PTSD symptoms improved over time and her notes are not consistent with a finding
that the claimant was totally impaired. (R. 794-804). Dr. Hanover completed the PTSD Benefits
Questionnaire on September 1, 2016, but her last visit with the claimant occurred on January 4,
2016. (R. 777, 803-04). And Dr. Hanover reported at the claimant’s last visit with her that the
claimant was “doing better about coping with stressful things,” was not feeling as overwhelmed

or consumed by anxiety, had a stable mood, and had decreased panic. (R. 803-04). So
substantial evidence supports the ALJ’s finding that Dr. Hanover’s opinion was inconsistent with
her own treatment notes.
Also, substantial evidence supports the ALJ’s finding that the other evidence in the
record did not support Dr. Hanover’s opinion. Dr. Hanover’s opinion was inconsistent with the
opinion of Dr. Flournoy, another treating physician, who, as the ALJ stated, opined that the
claimant’s general functioning was satisfactory with normal routine behavior, self-care, and
conversation. (R. 22, 462). Dr. Hanover’s opinion also was inconsistent with Dr. Blackmon’s
opinion that, based on a review of all of the medical evidence, the claimant’s mental functioning
improved with treatment and medication therapy. Dr. Blackmon based his opinion on a

comprehensive review of all of the record evidence, his medical expertise, and familiarity with
the disability program. Though Dr. Blackmon was only a reviewing source, the ALJ had good
cause to credit Dr. Blackmon’s opinion over Dr. Hanover’s opinion because substantial evidence
supports the ALJ’s finding that Dr. Hanover’s opinion was inconsistent with her own treatment
notes and not supported by the evidence. See Phillips, 764 F.2d at 1241, and Forrester, 455 F.
App’x at 902 (both finding that an ALJ may credit the opinion of a non-treating source over that
of a treating source if the evidence does not support the treating source’s opinion, the treating
source’s opinion is inconsistent with her own treatment notes, or the evidence supports a
contrary conclusion). So substantial evidence supports the weight that the ALJ assigned to the
opinions of Dr. Hanover and Dr. Blackmon.
Next, the claimant argues that the ALJ erred by assigning less than substantial weight to
Ms. Nault’s opinions that the claimant could not interface with the public and needed a flexible

and irregular work schedule because of his PTSD, sleep issues, need for therapy, and flareups.
The court disagrees.
As a Licensed Professional Counselor, Ms. Nault is not an “acceptable medical source”
under 20 C.F.R. § 404.1502, but the ALJ still considered her opinions using the same factors that
apply to opinions from acceptable medical sources under 20 C.F.R. § 404.1527. The ALJ found
that Ms. Nault’s opinions were “not well-supported by objective evidence” and “not entirely
consistent with the totality of the medical evidence, which documents that the claimant’s mental
functioning improved with treatment.” (R. 22). And substantial evidence supports the ALJ’s
finding. As explained above, Dr. Flournoy opined that the claimant’s general functioning was
satisfactory with normal routine behavior, self-care, and conversation; Dr. Hanover’s treatment

notes show that the claimant’s mental functioning improved with treatment; good cause existed
for the ALJ to not assign significant weight to Dr. Hanover’s opinion that the claimant had total
occupational and social impairment; and Dr. Blackmon, whose reviewing opinion the ALJ had
good cause to credit over Dr. Hanover’s opinion, opined that the claimant’s condition improved
with treatment. (R. 80-84, 462, 794-804). So the ALJ explained why he assigned only some
weight to Ms. Nault’s opinions and substantial evidence supports the ALJ’s decision. Thus, the
ALJ did not commit reversible error in this regard.
The claimant also argues that the ALJ erred by affording only some weight to the
claimant’s GAF scores. But the Commissioner has declined to endorse the GAF scale for use in
disability programs and has stated that the GAF scale “does not have a direct correlation to the
severity requirements in our mental disorders listings.” Wind v. Barnhart, 133 F. App’x 684,
692 n.5 (11th Cir. 2005) (citing 65 Fed. Reg. 50746, 50764–65 (Aug. 21, 2000)). Even so, the
ALJ explicitly acknowledged the claimant’s GAF scores and assigned them only some weight

because the scores were not entirely consistent with the totality of the record, especially the parts
that indicated that the claimant’s mental functioning improved with treatment. So, because the
ALJ considered the claimant’s GAF scores and articulated specific reasons for assigning them
only some weight, substantial evidence supports the weight that the ALJ gave to the claimant’s
GAF scores.
Finally, the claimant contends that the ALJ committed reversible error by not including
all of Dr. Fluornoy’s opinions in the claimant’s RFC. The ALJ assigned good weight to Dr.
Fluornoy’s opinions, but the ALJ did not include in the claimant’s RFC Dr. Fluornoy’s opinion
that the claimant would experience occasional decreases in work efficiency and intermittent
periods of inability to perform occupational tasks. (R. 20, 462). The claimant asserts that,

because SSR 83-10 defines “occasional” as “occurring from very little up to one-third of the
time,” Dr. Fluornoy’s opinion could show that the claimant is unable to perform tasks for up to
one-third of the day, which would contradict the claimant’s RFC as found by the ALJ.
But the ALJ did not commit reversible error by not including in the claimant’s RFC Dr.
Fluornoy’s opinion that the claimant would experience occasional decreases in work efficiency
and intermittent periods of inability to perform occupational tasks. Although an ALJ must state
the weight he gave to different medical opinions, the ALJ does not have to “‘specifically refer to
every piece of evidence in his decision, so long as the ALJ’s decision’ enables the district court
‘to conclude that the ALJ considered [the claimant’s] medical condition as a whole.’” Adams v.
Comm’r, Soc. Sec. Admin., 586 F. App’x 531, 533 (11th Cir. 2014) (quoting Dyer, 395 F.3d at
1211). Here, as the court explained above, the ALJ stated that he gave good weight to Dr.
Fluornoy’s opinions and the ALJ’s decision—particularly the ALJ’s reliance on the rest of Dr.
Fluornoy’s opinions, Dr. Hanover’s treatment notes, and Dr. Blackmon’s opinions that

contradicted the need for occasional long breaks—shows that the ALJ considered the claimant’s
condition as a whole and substantial evidence supports the ALJ’s decision to not include
occasional long breaks in the claimant’s RFC.
Also, the claimant’s argument regarding the definition of “occasional” under SSR 83-10
fails to persuade the court. No evidence shows that Dr. Fluornoy intended to adopt the Social
Security Ruling’s definition of “occasional,” much less the “occurring . . . up to one-third of the
time” part of the definition as opposed to the lesser “occurring . . . very little” part. And Dr.
Fluornoy’s opinion that the claimant’s general functioning was satisfactory with normal routine
behavior, self-care, and conversation does not support the claimant’s speculation about what Dr.
Fluornoy meant.

So, because the ALJ stated the weight he gave to each medical opinion in the record and
substantial evidence supports his decisions, the ALJ did not commit reversible error in evaluating
the medical opinions.
B. Whether the ALJ Failed to Properly Consider the Claimant’s 100% Disability
Rating from the VA

Next, the claimant argues that the ALJ failed to properly consider the claimant’s 100%
disability rating from the VA. For the following reasons, the court disagrees.
The Eleventh Circuit has found that, “[a]lthough the V.A.’s disability rating is not
binding on the [SSA], it is evidence that should be given great weight.” Brady v. Heckler, 724
F.2d 914, 921 (11th Cir. 1984) (quotation omitted). “Great weight” does not mean controlling
weight, but “the ALJ must seriously consider and closely scrutinize the V.A.’s disability
determination and must give specific reasons if the ALJ discounts that determination.” Brown-
Gaudet-Evans, 673 F. App’x at 904 (citing Rodriguez, 640 F.2d at 686).
In another case where a claimant had a 100% disability rating from the VA, the Eleventh

Circuit affirmed the Commissioner’s decision that the claimant was not disabled under the Social
Security Act despite the VA rating. See Pearson v. Astrue, 271 F. App’x 979 (11th Cir. 2008)
(as an unpublished Eleventh Circuit opinion, Pearson is persuasive, but not controlling,
authority). There, the claimant asserted that the ALJ erred by not finding the claimant disabled
because the VA concluded that the claimant was totally disabled because of bipolar disorder,
back pain, and hypertension. The Eleventh Circuit noted that, like the VA did for the claimant in
this case, the VA based its finding of disability on the VA’s definition of disability under 38
C.F.R. § 3.340(a)(1), not the Social Security Act’s definition. Pearson, 271 F. App’x at 981.
The Eleventh Circuit affirmed the Commissioner’s decision that the claimant was not disabled
despite the VA’s rating because “[t]he record establishes that the administrative law judge

considered the rating in his decision and correctly explained that a claimant had to satisfy a more
stringent standard to be found disabled under the Social Security Act.” Id.
In this case, the ALJ explicitly considered the claimant’s 100% disability rating from the
VA. (R. 24). And the ALJ provided specific reasons for giving the VA rating only some weight.
The ALJ explained that the VA rating did not “correlate with any specific work-related mental or
physical limitations that assist the Administrative Law Judge in making a determination of the
claimant’s residual functional capacity.” (R. 24). So, like the ALJ that did not commit
reversible error in Pearson, the ALJ in this case considered the VA rating but explained that the
rating was not considerably probative of any specific work-related limitations that would form
part of the claimant’s RFC under the Social Security Act. Thus, the ALJ did, in fact, articulate a
legitimate reason for assigning only some weight to the VA’s disability rating and did not
commit reversible error in this regard.
C. Whether Substantial Evidence Supports the ALJ’s Finding that the Claimant’s IBS
and Insomnia Were Non-Severe Impairments

Next, the claimant argues that substantial evidence does not support the ALJ’s finding
that the claimant’s IBS and insomnia were non-severe impairments. The court disagrees.
An impairment is severe if it significantly affects a claimant’s ability to perform work-
related activities, regardless of his age, education and work experience. See 20 C.F.R. §§
404.1520(c), 4040.1521(a). Here, substantial evidence supports the ALJ’s decision that neither
the claimant’s IBS nor insomnia met this definition.
The record indicates that the claimant was diagnosed with IBS, but the ALJ noted that no
treating physician has ever diagnosed the claimant with severe IBS. Instead, medical providers
had always treated the claimant’s IBS with conservative measures. For example, the claimant’s
primary care provider, Dr. Ali, instructed the claimant to stay hydrated, add fiber to his diet, and
take over the counter medicine; no medical provider had ever prescribed IBS medication for the
claimant and the claimant only sought limited treatment for IBS. (R. 376). And Dr. Amason
classified the claimant’s IBS as non-severe because of the claimant’s normal abdominal and
gastrointestinal functioning. (R. 79). So substantial objective medical evidence supports the

ALJ’s decision that the claimant’s IBS was a non-severe impairment.
Also, substantial evidence supports the ALJ’s decision that the claimant’s insomnia was a
non-severe impairment. No objective medical evidence from an acceptable medical source
demonstrates that the claimant’s insomnia significantly impacted his ability to perform work-
related activities. Ms. Nault opined that the claimant’s PTSD symptoms would significantly
interrupt his sleep schedule, but, as stated above, Ms. Nault is not an acceptable medical source
because she is a Licensed Professional Counselor and thus her statements cannot establish the
severity of the claimant’s insomnia under 20 CFR § 404.1521. And several treatment notes from
visits to the VA show that the claimant had some, but not severe, issues with sleeping. (R. 491,

586, 890).
So, because substantial evidence supports the ALJ’s finding that the claimant’s IBS and
insomnia were non-severe impairments, the ALJ did not commit reversible error during step two
of the sequential evaluation process.
D. Whether the ALJ Afforded the Claimant a Full and Fair Hearing
Finally, the claimant argues that the ALJ failed to afford the claimant a full and fair
hearing because the ALJ “cut off [the] claimant and vocational testimony without allowing for
further examination, refused to stop the hearing when asked by [the claimant], and proceeded to
close the hearing despite [the claimant’s] stated confusion regarding the hearing process and
meaning of the vocational testimony.” (Doc. 9 at 9). For the following reasons, the court finds

that the ALJ afforded the claimant a full and fair hearing.
A claimant is entitled to a full and fair hearing, which includes his due process right to an
“opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Martz, 649 F.
App’x at 962 (quoting Eldridge, 424 U.S. at 333); Kelley, 761 F.2d at 1540. If an unrepresented
claimant is unfamiliar with hearing procedures, then the ALJ’s duty to facilitate a full and fair
hearing rises to the level of a special duty to “scrupulously and conscientiously probe into,
inquire of, and explore for all the relevant facts.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th
Cir. 1981). And if the claimant asserts that he unknowingly waived the right to counsel or that
the ALJ failed his heightened special duty to explore for all of the relevant facts, then “[t]here
must be a showing of prejudice before it is found that the claimant’s right to due process has
been violated to such a degree that the case must be remanded to the [Commissioner] for further
development of the record.” Graham, 129 F.3d at 1423.
In this case, the claimant asserts that the ALJ first deprived him of a full and fair hearing

because, according to the claimant, the ALJ cut off the claimant’s examination of the VE and the
claimant’s wife. (Doc. 7 at 19) (citing R. 57-73). But the ALJ did not cut off the claimant’s
examination of the VE. Instead, the claimant asked the VE to repeat some of her testimony, the
VE did so, the ALJ asked the claimant if he had any further questions for the VE, and the
claimant said that he did not. (R. 63-65). So the claimant, not the ALJ, ended the claimant’s
examination of the VE.
And the ALJ did not commit reversible error when he moved on to the VE’s testimony
after the claimant’s wife testified without first asking the claimant if he had any further questions
to ask his wife. The claimant directly examined his wife as a witness. (R. 51-52). Then the ALJ
asked the claimant’s wife several questions about the claimant’s mental condition at home,

military history, and alcohol consumption. (R. 52-57). Then the ALJ said, “let’s move our
questioning to our vocational expert” and began his examination of the VE. (R. 57-58). Though
the ALJ did not ask the claimant if he had any more questions for his wife before moving on to
the VE, the ALJ did not cause any prejudice to the claimant, and thus did not violate his due
process rights, because the claimant examined his wife directly and the ALJ then “scrupulously
and conscientiously” examined the claimant’s wife with thorough questioning. Cowart, 662
F.2d at 735. So the ALJ did not commit reversible error when he moved on from the claimant’s
wife’s testimony to the VE’s testimony.
Next, the claimant asserts that the ALJ deprived him of a full and fair hearing when,
according to the claimant, the ALJ refused to stop the hearing when the claimant said that he
wanted to do so. But the claimant, not the ALJ, continued the hearing after the claimant said that
he wanted to stop the hearing.

After the claimant and the ALJ finished questioning the VE, the claimant’s wife briefly
interjected to say that the claimant was sick and the claimant then said, “[a]t this time I would
like to stop my hearing and not continue and seek representation from an outside source.” (R.
65-66). The ALJ responded, “[a]ll right,” and said that he would give the claimant one week to
submit a military discharge form discussed earlier in the hearing. (R. 66). But the claimant
continued; he asked the ALJ to clarify some of the VE’s testimony, explain whether the waiver
of representation form permitted the claimant to stop the hearing and seek representation, and
explain where a supplemental hearing would be held. (R. 66-72). The ALJ answered all of the
claimant’s questions. So the ALJ did not refuse to stop the hearing and the claimant did not
suffer any prejudice after he said that he wanted to stop the hearing.

Finally, the claimant contends that the ALJ deprived him of a full and fair hearing
because, according to the claimant, the ALJ improperly handled the claimant’s stated confusion
about the VE’s testimony and the hearing process. The court disagrees.
As explained above, the ALJ answered all of the claimant’s questions about the VE
testimony and the hearing process after the claimant said that he wanted to stop the hearing. The
ALJ then gave more special attention to the claimant’s concerns by allowing the claimant to stop
the hearing so that he could seek representation even though the waiver of representation form
did not give the claimant that right. (R. 68-69). And the ALJ informed the claimant how he
could obtain a supplemental hearing. The ALJ told the claimant, “[i]f you want to have a
supplemental hearing with an attorney I’ll ask you, number one, to retain an attorney or other
qualified representative and then your attorney or other qualified representative can file a request
for a supplemental hearing.” (R. 69). Then the ALJ explained some of the supplemental hearing
process. (R. 69-72). But no evidence shows that the the claimant retained an attorney or filed a

request for a supplemental hearing.
So, contrary to the claimant’s argument, the record shows that the ALJ fulfilled his
heightened duty owed to the claimant by answering all of the claimant’s questions and
explaining how he could receive a supplemental hearing. And, in any event, the claimant
suffered no prejudice. The ALJ directed the claimant to retain an attorney and file a request for a
supplemental hearing; the claimant simply failed to do so. So the record shows that the ALJ
afforded the claimant a full and fair hearing and never deprived the claimant of his due process
rights.
VII. CONCLUSION
For the reasons stated above, the Commissioner followed the correct legal standards and

substantial evidence supports his factual conclusions. So, by separate order, the court will
AFFIRM the Commissioner’s decision.
DONE and ORDERED this 18th day of March, 2020.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989355. Public record. Not legal advice.