The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
RICHARD ALAN HEROD, )
)
Plaintiff, )
)
v. ) Case No. 5:20-cv-1068-LCB
)
KILOLO KIJAKAZI, )
Acting Commissioner )
of Social Security,1 )
)
Defendant. )
OPINION & ORDER
Richard Alan Herod appeals a final decision of the Commissioner of Social
Security under 42 U.S.C. § 405(g). (Doc. 1 at 1). He claims that the Commissioner’s
decision denying his application for Social Security benefits is not supported by
substantial evidence. Id. at 2. As explained below,2 the Commissioner’s decision is
supported by substantial evidence. The Court therefore affirms the decision.
I. STATUTORY FRAMEWORK & STANDARD OF REVIEW
The Social Security Act establishes who is eligible to receive Social Security
benefits. Martin v. Sullivan, 894 F.2d 1520, 1530 (11th Cir. 1990). Under the Act,3
1 Under Federal Rule of Civil Procedure 25(d), the Court substitutes Kilolo Kijakazi, the acting
Commissioner of the Social Security Administration, for Andrew Saul, the former Commissioner.
2 See infra Part III.
3 Throughout this opinion, the Court cites to and applies the regulations in effect at the time of the
ALJ’s decision. See Ashley v. Comm’r, Soc. Sec. Admin., 707 F. App’x 939, 944 n.6 (11th Cir.
an administrative law judge (ALJ) must evaluate an application for Social Security
benefits pursuant to a five-step inquiry:
(1) Is the claimant engaged in substantial gainful activity?
(2) Does the claimant have a severe impairment?
(3) Does the claimant’s impairment meet or medically equal a specific
impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1?
(4) Is the claimant able to perform former relevant work?
(5) Is the claimant able to perform any other work within the national
economy?
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).4 An ALJ reaches step 4 only if a
claimant is not engaged in substantial gainful activity (step 1), has a severe
impairment (step 2), and does not have an impairment that meets or medically equals
a listed impairment (step 3). McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.
1986).
To evaluate whether a claimant is able to perform former relevant work
(step 4) and, if not, able to perform any other work within the national economy
(step 5), an ALJ must first determine the claimant’s residual function capacity
(RFC). Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). A claimant’s
RFC is defined as that which the claimant can still do despite his limitations.
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). A claimant is disabled if he can perform
2017) (per curiam) (explaining that, when reviewing the Commissioner’s final decisions, federal
courts apply “the regulations in effect at the time of the ALJ’s decision”).
4 A claimant bears the burden of proof through step four; the Commissioner bears the burden of
proof at step five. See Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996).
neither former relevant work nor any other work within the national economy.
McDaniel, 800 F.2d at 1030.
By contrast, a claimant is not disabled if he can perform former relevant work
or any other work within the national economy. Id. Should an ALJ determine that a
claimant is not disabled, the claimant may request review of the ALJ’s decision
before the Social Security Appeals Council. 20 C.F.R. § 404.1775(a). If the Appeals
Council denies review, the ALJ’s decision becomes a final administrative decision
of the Commissioner. 20 C.F.R. § 404.1770(b)(1). A claimant may then seek judicial
review of the Commissioner’s decision in federal court under 42 U.S.C. § 405(g).
A federal court, however, is limited in its review of the Commissioner’s final
decisions. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). A reviewing
court will not disturb the Commissioner’s factual findings if they are supported by
substantial evidence. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991).
Substantial evidence is more than a scintilla, but less than a preponderance; it is that
which a reasonable person would accept as adequate to support a conclusion. Moore
v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam); Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam).
II. FACTUAL & PROCEDURAL HISTORY
Richard Alan Herod is a veteran with a history of degenerative joint disease
and PTSD among other conditions. (Tr. at 118–19).5 In February 2019, Herod
applied for a period of disability, disability insurance benefits, and supplemental
security income, alleging that he became unable to work in September 2018. Id.
at 18, 192–94. The Commissioner denied Herod’s applications at the administrative
level. Id. at 128. In response, Herod requested further administrative review before
an ALJ. Id. at 136.
In April 2020, after holding an evidentiary hearing on the matter, the ALJ
issued a written order analyzing Herod’s case in accordance with the five-step
inquiry described above. Id. at 18–32. At step 1, the ALJ found that Herod had not
engaged in substantial gainful activity since he allegedly became disabled in
September 2018. Id. at 21. The ALJ then proceeded to step 2 and found that Herod
suffers from four severe impairments: “carpal tunnel syndrome, degenerative disc
disease, degenerative joint disease, and major depressive disorder[.]” Id.6
Accordingly, the ALJ proceeded to step 3 and considered whether Herod has
an impairment or combination of impairments that meets or medically equals the
5 “Tr” consists of a consecutively paginated record of the administrative proceedings below and
spans from ECF Doc. 12-1 to ECF Doc. 12-9. For clarity and consistency with the parties’ briefs,
the Court cites to the consecutive pagination of the transcript instead of the ECF pagination.
6 The ALJ also found that Herod suffers from the following non-severe impairments: “obesity,
asthma, diabetes mellitus, essential hypertension, and hyperlipidemia[.]” (Tr. at 21).
severity of an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. Id. at 22–24.
The ALJ, for instance, considered whether Herod’s degenerative joint disease
satisfied Listing 1.02 and whether Herod’s “mental impairments” satisfied Listing
12.04. Id. at 22. Ultimately, the ALJ concluded that Herod satisfied neither Listing
1.02 nor Listing 12.04 based on the record evidence as a whole. Id. at 22–24.
Before proceeding to step 4, the ALJ determined Herod’s RFC. Id. at 24. In
doing so, the ALJ considered the medical record as a whole, including the medical
opinions of half a dozen doctors. Id. at 25–30. First, the ALJ considered an
assessment performed by Dr. Thomas Amason. Id. at 29. Dr. Amason opined that
Herod could perform a range of light work despite his physical limitations. Id.
at 120–23. The ALJ found that Dr. Amason’s assessment was persuasive, noting
that, although Dr. Amason had not treated Herod, he had reviewed the medical
record. Id. at 29.
Second, the ALJ considered an assessment performed by Dr. Eugene Fleece.
Id. Dr. Fleece reviewed the medical record and opined in part that Herod could
perform a range of unskilled work. Id. at 123–25. Dr. Fleece, however, restricted
Herod to missing one day of work per month due to his PTSD and receiving only
simple, direct, and noninflammatory supervision. Id. at 124. The ALJ found that
Dr. Fleece’s specific restrictions were “speculative and unsupported by the objective
medical record,” but otherwise concluded that Dr. Fleece’s assessment was
persuasive. Id. at 29.
Third, the ALJ considered an evaluation performed by Dr. Boyde Harrison.
Id. Dr. Harrison noted that Herod “walked into the exam room without difficulty,”
but was “clearly over medicated[.]” Id. at 633–34. Dr. Harrison opined that Herod
could return to the workplace if he titrated off high doses of opioids. Id. at 636. The
ALJ found that Dr. Harrison’s evaluation was unpersuasive because he examined
Herod only one time and had no treating relationship with Herod. Id. at 29.
Fourth, the ALJ considered two examinations conducted by Dr. James
Lindsey. Id. On both occasions, Dr. Lindsey noted that Herod had a slow, but normal
gait and that he “walked in without assistance.” Id. at 629, 733. Dr. Lindsey further
noted that Herod had spontaneous speech, exhibited normal mannerisms, and
maintained reasonable eye contact. Id. at 629–30, 733–34. Herod reported that he
bathes and dresses himself (unless he is having a “bad day”), drives, prepares food,
does housework, manages his finances, and socializes with his family daily. Id.
at 630, 734.
Based on his observations and review of the medical record, Dr. Lindsey
opined that Herod could understand, remember, and carry out instructions, and that
he had no “relational issues” that would “interfere with his ability to maintain
employment.” Id. at 631, 735. Dr. Lindsey also noted that, although Herod alleged
that he was “receiving mental health treatment from the VA once a month,” there
were no mental health records in Herod’s DDS file. Id. at 627, 731. The ALJ
ultimately found that Dr. Lindsey’s evaluations were persuasive, citing the fact that
Dr. Lindsey had examined Herod and reviewed the record evidence. Id. at 29.
Fifth, the ALJ considered a letter from Dr. Brian Friloux. Id. In his letter,
Dr. Friloux explained that he was Herod’s “VA primary care physician” and that
Herod had “sustained numerous injuries” while serving on active duty in the
military. Id. at 324. Dr. Friloux then proceeded to describe the causes of these
injuries and the injuries themselves in graphic detail. Id. He then opined that Herod,
as a result of his injuries, was unable to stand or sit for a prolonged period of time,
“unable to perform any meaningful work to provide for his family,” and “100%
disabled.” Id.
Dr. Friloux, however, did not base his opinion on any record evidence. Id.
Indeed, he admitted that he did not have access to Herod’s active duty records. Id.
Dr. Friloux instead cited Herod himself, explaining: “Herod is a good and reliable
historian.” Id. The ALJ, for her part, found that Dr. Friloux had no objective basis
for his opinion and that the objective medical evidence did not support his opinion.
Id. at 30. The ALJ therefore concluded that Dr. Friloux’s letter was unpersuasive.
Id.
Lastly, the ALJ considered a “Medical Source Opinion (Physical) form”
submitted by Dr. Eston Norwood. Id. In the form, which consists mainly of
checkmarks next to pre-written questions, Dr. Norwood opined that Herod was
unable to “walk a block at a reasonable pace on rough or uneven surfaces,” but that
he did not “require the use of a cane to ambulate[.]” Id. at 743, 747. The ALJ found
that Dr. Norwood’s opinion was unpersuasive because he examined Herod on only
one occasion and appeared to base his opinion primarily on Herod’s subjective
complaints “rather than clinical objective findings.” Id. at 30.
Considering these medical opinions along with the relevant record evidence
as a whole, the ALJ concluded that that Herod has an RFC to perform “light work”7
with several physical and mental limitations. Id. at 24. The ALJ, for instance, noted
that Herod could “understand, remember, and apply simple instructions and tasks.
Id. But the ALJ limited Herod to “jobs involving infrequent and well explained
workplace changes,” and those requiring limited interaction with the general public.
Id. (cleaned up). Additionally, the ALJ noted that Herod needed “the option to sit
and stand during the workday for one to two minutes at a time while remaining on
task[.]” Id.
7 Under 20 C.F.R. §§ 404.1567(b), 416.967(b), light work is defined as “lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” A job falls
“in this category when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(b),
416.967(b).
After determining Herod’s RFC, the ALJ moved to step 4. Id. at 34. There,
the ALJ determined that Herod is unable to perform any former relevant work. Id.8
The ALJ then proceeded to the fifth and final step and considered whether Herod
could perform any other work within the national economy. Id. at 31–32. Answering
that question in the affirmative, the ALJ determined that Herod is able to work as an
“inspector-hand packaging,” a shipping/receiving weigher, or a laundry folder. Id.
at 32. Accordingly, the ALJ concluded that Herod is not disabled for purposes of the
Social Security Act and denied his applications for benefits. Id. After the Appeals
Council denied his request for further administrative review,9 Herod filed this suit
under 42 U.S.C. § 405(g). (Doc. 1 at 1).
III. DISCUSSION
Herod claims that the ALJ’s decision is not supported by substantial evidence.
(Doc. 1 at 2). In support, he makes five overarching arguments: (1) substantial
evidence does not support the ALJ’s RFC determination; (2) the ALJ erroneously
discounted the evidentiary weight of Dr. Friloux’s medical opinion; (3) the ALJ
erred by failing to consider whether his PTSD constitutes a severe impairment;
(4) the ALJ erred by finding that he does not have an impairment that meets or
medically equals an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1; and
8 Specifically, the ALJ found that Herod is unable to return to his former occupation as a “heavy
trucker driver.” (Tr. at 31).
9 (Tr. at 1).
(5) he is disabled under Medical Vocational Rule 201.14. (Doc. 14 at 4, 9–10, 13,
15, 17, 20). The Court addresses each argument in that order.
A. Whether substantial evidence supports the ALJ’s RFC
determination.
Herod first argues that substantial evidence does not support the ALJ’s RFC
determination. (Doc. 14 at 4). When determining a claimant’s RFC, an ALJ
considers “the claimant’s physical, mental, and other abilities” in light of his
impairments. Cooper v. Comm’r of Soc. Sec., 521 F. App’x 803, 808 (11th Cir. 2013)
(per curiam). An ALJ must consider all “‘relevant medical and other evidence’ in
the case” when making an RFC determination. Phillips v. Barnhart, 357 F.3d 1232,
1238 (11th Cir. 2004) (quoting 20 C.F.R. § 404.1520(e)).
In this case, the ALJ determined Herod’s RFC after thoroughly summarizing
the medical record and considering the persuasiveness of each piece of relevant
evidence, including the medical opinions of half a dozen doctors. (Tr. at 25–30). The
ALJ ultimately concluded that Herod can perform light work with several physical
and mental limitations, finding that the opinions of Dr. Amason, Dr. Fleece, and
Dr. Lindsey were persuasive, and that the opinions of Dr. Harrison, Dr. Friloux, and
Dr. Norwood were unpersuasive. Id. at 29–30. Having reviewed these medical
opinions along with the record as whole, the Court concludes that substantial
evidence supports the ALJ’s RFC determination.
Herod provides no meaningful opposition to the contrary. The crux of Herod’s
argument is that that the ALJ misinterpreted certain portions of the medical record.
(Doc. 14 at 4–9). This argument—at its core—asks the Court to reweigh the
persuasiveness of the medical evidence, which the Court simply cannot do. See
Dolsak v. Comm’r of Soc. Sec., 724 F. App’x 914, 915 n.1 (11th Cir. 2018) (per
curiam) (“[Claimant’s] arguments that the ALJ did not consider the best evidence in
the record amount to a request for us to reweigh the record evidence, which we
cannot do.”). Because substantial evidence supports the ALJ’s RFC determination,
Herod’s argument fails.
B. Whether the ALJ erroneously discounted Dr. Friloux’s opinion.
Herod next argues that the ALJ erroneously discounted the evidentiary weight
of Dr. Friloux’s medical opinion. (Doc. 14 at 9–10). He reasons that the ALJ should
have given Dr. Friloux’s opinion controlling weight, or in the alternative, evaluated
his opinion under 20 C.F.R. § 404.1527. Id. at 13. The problem for Herod is that
§ 404.1527 is inapplicable to his case.
Section 404.1527 applies only to claims filed before March 27, 2017.
20 C.F.R. § 404.1527. Under this regulation, there are three types “of medical
opinion sources: (1) treating physicians; (2) nontreating, examining physicians; and
(3) nontreating, nonexamining physicians.” Himes v. Comm’r of Soc. Sec., 585 F.
App’x 758, 765 (11th Cir. 2014) (per curiam). A treating physician is an acceptable
medical source who provides (or has provided) a claimant with medical treatment
and has (or has had) an ongoing treatment relationship with the claimant. 20 C.F.R.
§ 404.1527(a)(2). An ALJ must assign “substantial or considerable weight” to a
treating physician’s opinion absent good cause to do otherwise. Crawford, 363 F.3d
at 1159.
By contrast, Section 404.1520c governs claims filed on or after March 27,
2017. 20 C.F.R. § 404.1520c. Under this regulation, an ALJ does “not defer or give
any specific evidentiary weight” to any medical opinion, including those of treating
physicians. 20 C.F.R. § 404.1520c(a). Instead, an ALJ considers the opinion’s
“supportability” and “consistency” when evaluating the persuasiveness of a medical
opinion. 20 C.F.R. § 404.1520c(b)(2). Such persuasiveness is directly corelated with
the extent to which the opinion supports its conclusions with objective evidence and
explanations and the extent to which the opinion is consistent with other medical and
nonmedical evidence in the record. 20 C.F.R. § 404.1520c(c)(1)–(2).
In this case, Herod applied for benefits on March 15, 2019. (Tr. at 192–94).
As such, § 404.1520c applies to Herod’s case—not § 404.1527. Correctly applying
§ 404.1520c, the ALJ found that Dr. Friloux’s opinion was unpersuasive and
unsupported by the medical record as a whole. Id. at 30. The ALJ did not defer or
give any specific evidentiary weight to Dr. Friloux’s medical opinion. Id. at 29–30.
Accordingly, the ALJ properly considered Dr. Friloux’s medical opinion under
§ 404.1520c. The ALJ therefore did not erroneously discount the evidentiary weight
of Dr. Friloux’s medical opinion.
C. Whether the ALJ erred by failing to identify Herod’s PTSD as a
severe impairment.
Herod next argues that the ALJ erred by failing to consider whether his PTSD
constitutes a severe impairment at step two of the statutory inquiry. (Doc. 14 at 13).
At step two, an ALJ must consider whether the claimant has a severe impairment or
combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 916.920(a)(4)(ii).10
The finding of any severe impairment satisfies this requirement. Jamison v. Bowen,
814 F.2d 585, 588 (11th Cir. 1987). An ALJ need not identify “all of the impairments
that should be considered severe.” Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823,
825 (11th Cir. 2010) (per curiam); accord Tuggerson-Brown v. Comm’r of Soc. Sec.,
572 F. App’x 949, 951 (11th Cir. 2014) (per curiam).
In this case, the ALJ found, at step two, that Herod has four severe
impairments: carpal tunnel syndrome, degenerative disc disease, degenerative joint
disease, and major depressive disorder. (Tr. at 21). Accordingly, the ALJ satisfied
the requirement of step two without considering whether Herod’s PTSD constitutes
10 An impairment is not severe only if it “is so slight and its effect so minimal that it would clearly
not be expected to interfere with the individual’s ability to work, irrespective of age, education or
work experience.” McDaniel, 800 F.2d at 1031.
a severe impairment. Thus, the ALJ did not err by failing to consider whether
Herod’s PTSD constitutes a severe impairment.
D. Whether the ALJ erred by finding that Herod does not meet a listed
impairment.
Herod next argues that he has an impairment that meets or medically equals
an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. (Doc. 14 at 15). At step
3 of the inquiry, an ALJ must determine whether a claimant has an impairment that
meets or medically equals the severity of an impairment listed in 20 C.F.R. pt. 404,
subpt. P, app. 1. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). An ALJ, however, need
not “mechanically recite” every listing she considers. Flemming v. Comm’r of the
Soc. Sec. Admin., 635 F. App’x 673, 676 (11th Cir. 2015) (per curiam). An “ALJ’s
finding as to whether a claimant does or does not meet a listed impairment need not
be explicit and may be implied from the record.” Bellew v. Acting Com’r of Soc.
Sec., 605 F. App’x 917, 920 (11th Cir. 2015) (per curiam).
Here, Herod maintains that his degenerative joint disease meets or medically
equals Listing 1.02(A) and that his PTSD meets or medically equals Listing 12.15.
(Doc. 14 at 15, 17). Herod does not contest the Commissioner’s assertion that the
ALJ implicitly found that Herod’s PTSD did not satisfy Listing 12.15 when she
found that Herod did not have an impairment that satisfies Listing 12.04. (Doc. 16
at 1–4). Because the ALJ found that Herod did not have an impairment that satisfies
Listing 12.04, and because the requirements of Listing 12.04 and Listing 12.15 are
nearly identical,11 the Court finds that the ALJ implicitly found that Herod did not
have an impairment that satisfies Listing 12.15. The Court therefore proceeds by
determining whether the ALJ’s findings as to Listing 1.02(A) and Listing 12.15 are
supported by substantial evidence.
1. Listing 1.02(A)
Herod contends that his degenerative joint disease meets or medically equals
Listing 1.02(A). (Doc. 14 at 15). Listing 1.02(A) requires dysfunction “of one major
peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to
ambulate effectively[.]” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02(A). In this context,
“[i]nability to ambulate effectively means an extreme limitation of the ability to
walk,” being unable to independently ambulate “without the use of a hand-held
assistive device(s) that limits the functioning of both upper extremities.” Id. at
§ 1.00(B)(2)(b).
Here, there is substantial record evidence that Herod can ambulate effectively
without an assistive device. Dr. Harrison, for example, noted that Herod “walked
into the exam room without difficulty.” (Tr. at 634). Dr. Lindsey likewise noted that
Herod had a slow, but normal gait and walked into the exam room without
assistance. Id. at 629, 733. Additionally, Dr. Norwood opined that Herod did not
11 Compare 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04(B)–(C), with 20 C.F.R. pt. 404, subpt. P,
app. 1, § 12.15(B)–(C).
“require the use of a cane to ambulate[.]” Id. at 743, 747. Additional examples
abound,12 but the point is clear: there is substantial evidence that Herod does not
need an assistive device to ambulate effectively. The ALJ therefore did not err by
concluding that Herod does not have an impairment that meets or medically equals
Listing 1.02(A).
2. Listing 12.15
Herod also contends that his PTSD meets or medically equals Listing 12.15.
(Doc. 14 at 17). Listing 12.15 describes trauma-related and stressor-related disorders
and requires:
A. Medical documentation of all of the following:
1. Exposure to actual or threatened death, serious injury,
or violence;
2. Subsequent involuntary re-experiencing of the
traumatic event (for example, intrusive memories,
dreams, or flashbacks);
3. Avoidance of external reminders of the event;
4. Disturbance in mood and behavior; and
5. Increases in arousal and reactivity (for example,
exaggerated startle response, sleep disturbance).
AND
B. Extreme limitation of one, or marked limitation of two, of the
following areas of mental functioning:
1. Understand, remember, or apply information.
2. Interact with others.
3. Concentrate, persist, or maintain pace.
4. Adapt or manage oneself.
12 VA medical records also repeatedly indicate that Herod does not need any assistive device to
ambulate effectively. (Tr. at 370, 396–97, 503, 515, 522 529–530, 546, 572–73).
OR
C. Your mental disorder in this listing category is “serious and
persistent;” that is, you have a medically documented history of the
existence of the disorder over a period of at least 2 years, and there
is evidence of both:
1. Medical treatment, mental health therapy,
psychosocial support(s), or a highly structured
setting(s) that is ongoing and that diminishes the
symptoms and signs of your mental disorder; and
2. Marginal adjustment, that is, you have minimal
capacity to adapt to changes in your environment or to
demands that are not already part of your daily life.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.15(B)–(C) (cleaned up). In this case, Herod
argues that he satisfies the criteria of Section A, Section B, and Section C. (Doc. 14
at 17–20). Because the record reflects that Herod satisfies the criteria of Section A,13
the Court turns to whether Herod satisfies the criteria of Section B or Section C.
i. Section B Criteria
Herod contends that he satisfies the criteria of Section B. (Doc. 14 at 18). To
satisfy Section B, a claimant must produce evidence that he has an “[e]xtreme
limitation of one, or marked limitation of two, of the following areas of mental
functioning: (1) understand, remember, or apply information; (2) interact with
others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.15(B) (cleaned up). Here, Herod argues that
13 (Doc. 12 at 36–43, 484–89). The Commissioner has no opposition to this conclusion. (Doc. 15
at 22).
he has an extreme limitation on his ability to interact with others or, in the alternative,
a marked limitation on his ability to interact with others and a marked limitation on
his ability to adapt or manage himself. (Doc. 14 at 18–19).
Herod’s initial argument fails. For purposes of Section B, “interacting with
others” refers to the ability “to relate to and work with supervisors, co-workers, and
the public.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(E)(2). A claimant has an
extreme limitation on his ability to interact with others when he is unable “to
function in this area independently, appropriately, effectively, and on a sustained
basis.” Id. at § 12.00(F)(2)(e).
In this case, Dr. Lindsey indicated that Herod had spontaneous speech,
exhibited normal mannerisms, and maintained reasonable eye contact. (Tr. at 629–
30, 733–34). She also noted that Herod managed “his finances” and socialized with
his family daily. Id. at 630, 734. Considering Dr. Lindsey’s records and the medical
record as a whole, substantial evidence supports the ALJ’s finding that Herod does
not have an extreme limitation on his ability to interact with others.
Herod’s alternative argument also fails. Under Section B, “adapt or manage
oneself” refers to the ability “to regulate emotions, control behavior, and maintain
well-being in a work setting.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(E)(4). A
claimant has a “marked limitation” on his ability to manage himself when his ability
to function “in this area independently, appropriately, effectively, and on a sustained
basis is seriously limited.” Id. at § 12.00(F)(2)(d).
In this case, Dr. Lindsey noted that Herod could bathe and dress himself
without assistance unless he is having a “bad day.” (Tr. at 630, 734). She noted that
Herod could drive, prepare food, do housework, and manage his finances. Id. She
opined that Herod had “overall average judgment when presented with everyday
social or personal dilemmas.” Id. Considering Dr. Lindsey’s records and the medical
record as a whole, substantial evidence supports the ALJ’s finding that Herod does
not have a marked limitation on his ability to adapt or manage himself.
Consequently, substantial evidence also supports the ALJ’s finding that Herod does
not satisfy the criteria of Section B.
ii. Section C Criteria
Herod also contends that he satisfies the criteria of Section C. (Doc. 14 at 17–
18). Section C requires a claimant to produce, in part, evidence of “[m]edical
treatment, mental health therapy, psychosocial support(s), or a highly structured
setting(s) that is ongoing and that diminishes the symptoms and signs of [the
claimant’s] mental disorder[.]” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.15(C)(1). A
claimant receives “ongoing medical treatment when the medical evidence
establishes that [the claimant] obtain[s] medical treatment with a frequency
consistent with accepted medical practice for the type of treatment or evaluation
required for [the claimant’s] medical condition.” Id. at § 12.15(G)(2)(b).
In this case, there is substantial record evidence that Herod had not received
“ongoing medical treatment.” Dr. Lindsey noted that, although Herod reported that
he was “receiving mental health treatment from the VA once a month,” there were
no mental health records in Herod’s DDS file. (Tr. at 627, 731). VA records also
indicate that Herod was not seeing a psychiatrist in June 2019 and had not seen a
psychiatrist in six years, although he had seen a “case worker” five times during the
previous three months. Id. at 38. Considering these records and the medical record
as a whole, substantial evidence supports the ALJ’s finding that Herod had not
received “ongoing medical treatment.” Because substantial evidence supports the
ALJ’s conclusion that Herod did not satisfy Section C, the ALJ did not err by
concluding that Herod does not have an impairment that meets or medically equals
Listing 12.15.
E. Whether Herod is disabled under Medical Vocational Rule 201.14.
Herod’s final argument is that he is disabled under Medical Vocational Rule
201.14. (Doc. 14 at 20). Rule 201.14 applies only to claimants who have a maximum
RFC of sedentary work. 20 C.F.R. pt. 404, subpt. P, app. 2, tbl.1.14 As explained
14 Under 20 C.F.R. §§ 404.1567(a), 416.967(a), sedentary work is defined as “lifting no more than
10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools.”
above, the ALJ determined that Herod has an RFC to conduct “light work,” and
substantial evidence supports the ALJ’s RFC determination. See supra Section HI.A.
Accordingly, Rule 201.14 is inapplicable to Herod’s case. Herod therefore is not
disabled under Rule 201.14.
IV. CONCLUSION
Herod fails to show error in the Commissioner’s decision below. First,
substantial evidence supports the ALJ’s RFC determination. Second, the ALJ did
not erroneously discount the evidentiary weight of Dr. Friloux’s medical opinion.
Third, the ALJ did not err by failing to consider whether Herod’s PTSD constitutes
a severe impairment. Fourth, the ALJ did not err by finding that Herod does not have
an impairment that meets or medically equals an impairment listed in 20 C.F.R. pt.
404, subpt. P, app. 1. Finally, Herod is not disabled under Medical Vocational Rule
201.14. The Court therefore AFFIRMS the Commissioner’s decision.
DONE and ORDERED January 19, 2022.
x SZ C Sha
LILES C. BURKE
UNITED STATES DISTRICT JUDGE
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