Gosha v. Astrue
MEMORANDUM OPINION AND ORDER that the Court concludes that the ALJ's non-disability determination is supported by substantial evidence and proper application of the law; that the decision of the Commissioner is AFFIRMED; that a separate judgment will be entered. Signed by Honorable Judge Terry F. Moorer on 2/6/2012. (cc, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CASE NO.: 1:10-cv-946-TFM
MEMORANDUM OPINION AND ORDER
Latasha Gosha (“Plaintiff” or “Gosha”) filed an application for Social Security
disability insurance benefits and supplemental security income on April 22, 2008, for a
period of disability which allegedly began March 15, 2008. (Pl. Br. 122-24). Plaintiff’s
application was denied on July 16, 2008. (Tr. 61-65). Upon timely request by the Plaintiff,
Gosha appeared before an Administrative Law Judge (“ALJ”) on November 4, 2009. (Tr.
35-58). The ALJ issued an unfavorable decision on January 11, 2010. (Tr. 19-30). Once the
Appeals Council rejected review on September 24, 2010 (Tr. 6-8) the ALJ’s decision became
the final decision of the Commissioner of Social Security (“Commissioner”).1 See Chester
v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The Court has jurisdiction over this lawsuit
pursuant to 42 U.S.C. § 405(g) and the parties consent to the undersigned rendering a final
Pursuant to the Social Security Independence and Program Improvements Act of 1994,
Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services
with respect to Social Security matters were transferred to the Commissioner of Social Security.
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judgment in this lawsuit pursuant to 28 U.S.C. § 636 (c)(1) and M.D. Ala. LR 73.1. For the
reasons that follow, the Court AFFIRMS the Commissioner’s decision.
I. NATURE OF THE CASE
Gosha seeks judicial review of the Commissioner’s decision denying her application
for disability insurance benefits and supplemental security income. United States District
Courts may conduct limited review of such decisions to determine whether they comply with
applicable law and are supported by substantial evidence. 42 U.S.C. § 405 (2006). The
Court may affirm, reverse and remand with instructions, or reverse and render a judgment.
Gosha was born on February 13, 1982 and was 26 years old at the time of the alleged
onset of disability. (Tr. 130). Gosha is a tenth grade drop out but has a GED. (Tr. 40).
Gosha held several jobs including cook, day care teacher, cashier, production worker at a
factory, sanitation worker, certified nurse’s assistant, and a production line worker at a
chicken processing factory. (Tr. 160-68).
At the hearing Gosha said her disability began on March 15, 2008, after a vehicle
collision. (Tr. 41). Gosha claims she suffers from seizures, asthma, headaches, depression,
bipolar disorder and schizophrenia which renders her disabled. (Tr. 41-44). All medical
records from by Gosha show an expansive medical history beginning after March, 2008
through November, 2009. (Tr. 25-29).
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The record reveals the ALJ took into account that Gosha was seen by multiple doctors
over a period of years for an assortment of medical issues which all allegedly stem from a
vehicle accident on March 15, 2008. (Tr. 19-30). Immediately after the accident Gosha had
a “computed tomography (CT) of her brain taken on March 15, 2008 [which] was negative.”
Id. An MRI on April 9, 2008, which showed “an 8mm pineal cyst but was otherwise
On April 18, 2008 Gosha had normal results from an
“electroencephalogram (EEG).” Id. The ALJ had results from “an EEG performed on May
11, 2009, [that] was abnormal due to occasional left temporal slow waves with disorganized
background. An MRI of the claimant’s brain the following day identified no abnormalities.”
A series of medical visits to the Southeast Alabama Medical Center where Dr. Sher
Ghori, M.D., treated Gosha revealed “the claimant’s seizures had not been very well
controlled during the summer of 2008 but also noted the claimant had been incorrectly taking
a weaker dosage of her medication.” Id. “The medical record shows the claimant has
repeatedly failed to comply with prescribed treatment, which diminishes her persuasiveness.”
(Tr. 28) Medical records indicate several times Gosha did not take the correct medication or
the proper dose to prevent seizures. (Tr. 25-28).
Gosha testified that she suffers from depression, bipolarism, paranoia, and panic
attacks but the ALJ noted that “[t]he claimant has not generally received the type of medical
treatments one would expect if her mental condition was totally disabling.” (Tr. 26). Of
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note, Dr. J. Christopher Strunk, M.D., gave Gosha a fair prognosis and stated that she
“should do well with routine outpatient treatment.” Id. The Global Assessment of Function
(GAF) of 40-45 was taken into consideration by the ALJ; however, based on 65 Fed. Reg.
50746, 50764-65 (Aug. 21 2000), as well as DeBoard v. Barnhart, no. 05-6854 (6th Cir. Dec.
15, 2006) the ALJ stated that “the underlying findings of the medical and non-medical
evidence are found to be more relevant in determining the claimant’s residual functional
capacity than a GAF score, which lacks reliability in disability determinations. (Tr. 26). Dr.
McGinn and Dr. Ghori found that Gosha is “fully disabled due to her mental condition.” (Tr.
28) Dr. Shakir Meghani, M.D., at Southeast Psychiatric Services “opined the claimant’s
mental activities showed marked impairment with few exceptions” but the ALJ noted that
this opinion “is inconsistent with the claimant’s conservative medical treatment, his own own
treatment records, and with the opinions of other examining and non-examining physicians.”
(Tr. 28). “For these reasons, Dr. Meghani’s opinion is given little weight.” Id. Dr. Joseph
McGinn, M.D., who worked with Dr. Meghani at Southeast Psychiatric Services stated that
“the claimant’s behavior was normal despite her reports of hallucinations.” (Tr. 26). After
being treated by a series of doctors for her mental conditions Gosha was last seen on October
16, 2009, by Dr. Strunk. Dr. Strunk found Gosha to have major depression with psychotic
symptoms but stated that she needed to “better compl[y] with medications and a stable
outpatient regiment to improve.” Id.
Several medical evaluations reveal Gosha is a malingerer and the ALJ properly took
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the evaluations into consideration to assess Gosha. (Tr. 27-29). The ALJ also noted that
“[t]he claimant’s lack of medical treatment for her hypertension and diabetes mellitus
indicates these impairments are not disabling.” (Tr. 27). Gosha’s medical records show
periods of greater than five months wherein her treating physician for hypertension and
diabetes “did not prescribe any treatment of these conditions” and “the most recent list of her
prescription medications does not include any medications to treat these conditions.” Id.
The ALJ found Gosha’s credibility to be “undermined by inconsistencies between her
testimony and the medical record.” Id. For instance, Gosha testified that she quit drinking
alcohol after her accident on March 15, 2008. Medical records from Dr. Saeda Malik, M.D.,
Gosha’s neurologist, noted “a high level of alcohol” in Gosha’s blood work over a year after
the accident. Id. A second doctor, Dr. Joseph McGinn, M.D., “diagnosed the claimant with
alcohol abuse on June 19, 2009, and Dr. Malik included alcohol abuse in his assessment of
the claimant on July 14, 2009.” Id. Gosha’s credibility was also compromised when the ALJ
noted that “claimant testified she saw Dr. Malik and Dr. Meghani as frequently as twice a
week until her insurance forced her to restrict the number of visits.” Id. Medical records
show only one month in which Gosha was seen more than once in the month, much less more
than once a week. Id. The medical records also show Gosha claims to live by herself but at
the hearing Gosha testified that she lived with her mother and two children for assistance.
The entirety of Gosha’s records were evaluated by two State agency medical
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consultants, Dr. Donald Hinton, Ph.D., and Dr. Francis W. Sullivan, M.D., who both
conclude Gosha can work. The ALJ properly gave greater weight to the opinions of Dr.
Hinton and Dr. Sullivan because “Dr. Meghani’s opinion is inconsistent with the claimant’s
conservative medical treatment, his own treatment records, and with the opinions of other
examining and non-examining physicians.
Additionally, Dr. Hinton’s
assessment was found to be consistent with that of Dr. Ghostley, who reported that “[f]rom
a psychiatric perspective, [the claimant’s] ability to understand, remember, and carry out
instructions, as well as to respond appropriately to supervisors, co-workers, and work
pressures in a work setting, is largely unimpaired.” (Tr. 28). Dr. Sullivan gave Gosha
limitations on her ability to work, including “lifting and carrying up to 20 pounds
occasionally and 10 pounds frequently; sitting for a total of about 6 hours in a 8-hour
workday; standing and/or walking for a total of about 6 hours in an 8-hour workday.” (Tr.
29). However the limitations placed on Gosha by Dr. Sullivan did not exclude work and “no
treating physician has opined the claimant requires greater physical restrictions.” Id.
III. STANDARD OF REVIEW
The Court reviews a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and based upon proper legal standards. Lewis
v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The Court “may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner,” but
rather it “must defer to the Commissioner’s decision if it supported by substantial evidence.”
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Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)); see also Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995) (stating the court should not re-weigh the evidence). The Court must find the
Commissioner’s decision conclusive “if it is supported by substantial evidence and the
correct legal standards were applied.” Kelly v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999)
(citing Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997)).
Substantial evidence is more than a scintilla – i.e., the evidence must do more than
merely create a suspicion of the existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support the conclusion.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing Richardson v. Perales, 402 U.S. 389,
401, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) and MacGregor v. Bowen, 785 F.2d 1050,
1053 (11th Cir. 1986)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) and Richardson, 402 U.S. at 401, 91 S.Ct. at 1427).
If the Commissioner’s decision is supported by substantial evidence, the district court
will affirm, even if the court would have reached a contrary result as finder of fact, and even
if the court finds that the evidence preponderates against the Commissioner’s decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). The district court must view
the record as a whole, taking into account evidence favorable as well as unfavorable to the
decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792 F.2d 129,131 (11th Cir.
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The district court will reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Serv., 21 F.3d 1064, 1066 (11th Cir. 1994) (internal citations
omitted). There is no presumption that the Secretary’s conclusions of law are valid. Id.;
Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).
IV. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence.2 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and
distinct program. SSI is a general public assistance measure providing an additional resource
to the aged, blind, and disabled to assure that their income does not fall below the poverty
line.3 Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. §§
1382(a), 1382c(a)(3)(A)-(C). Despite the fact they are separate programs, the law and
regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for
DIB is authorized by Title II of the Social Security Act, and is funded by Social Security
taxes. See Social Security Administration, Social Security Handbook, § 136.1, available at
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by
general tax revenues. See Social Security Administration, Social Security Handbook, §§ 136.2,
2100, available at http://www.ssa.gov/OP_Home/handbook/handbook.html
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DIB and SSI are treated identically for the purpose of determining whether a claimant is
disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n. 1 (11th Cir. 1986). Applicants under
DIB and SSI must provide “disability” within the meaning of the Social Security Act which
defines disability in virtually identical language for both programs. See 42 U.S.C. §§ 423(d),
1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a), 416.905(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.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is one
resulting from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§ 404.1520,
Is the person presently unemployed?
Is the person’s impairment(s) severe?
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Does the person’s impairment(s) 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?
Is the person unable to perform any other work within the economy?
An affirmative answer to any of the 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).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of qualifying
disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the
burden shifts to the Commissioner, who must then show there are a significant number of
jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s Residual
Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do
despite his impairments and is based on all relevant medical and other evidence. Id. It also
can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step,
the ALJ considers the claimant’s RFC, age, education, and work experience to determine if
there are jobs available in the national economy the claimant can perform. Id. at 1239. To
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
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do this, the ALJ can either use the Medical Vocational Guidelines5 (“grids”) or hear
testimony from a Vocational Expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or
light work, inability to speak English, educational deficiencies, and lack of job experience.
Each factor can independently limit the number of jobs realistically available to an
individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of
“Disabled” or “Not Disabled.” Id.
V. STATEMENT OF THE ISSUES
Plaintiff alleges the ALJ made four errors. (Pl. Br. at 5). First, Plaintiff argues “the
ALJ erred in considering Ms. Gosha’s past work as a cashier since her earning from this job
did not rise to the level of substantial gainful activity.” Id. Second, Plaintiff argues “the
ALJ erred in finding Ms. Gosha able to perform her past work as a cashier which entails
a reasoning level of three.” Id. Third, Plaintiff argues “the ALJ erred by failing to find Ms.
Gosha’s migraine headaches a severe impairment.” Id. Finally, Plaintiff argues “the ALJ
failed to accord any weight to the opinions of Sheri Ghori, M.D. and Saeeda Malik, M.D.,
Ms. Gosha’s treating physicians.” Id. The issues and arguments Gosha raises turn upon this
Court’s ultimate inquiry of whether the Commissioner’s disability decision is supported by
the proper legal standards and by substantial evidence. See Bridges v. Bowen, 815 F.2d 622,
624-25 (11th Cir. 1987).
See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in
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VI. DISCUSSION AND ANALYSIS
The ALJ properly considered Gosha’s earnings as a cashier because those
earnings were prior to the onset date of March 15, 2008, a time period in
which the ALJ properly found that Gosha was gainfully employed and met
the requirement of the Social Security Act.
Substantial gainful activity (SGA) is work that involves significant mental and
physical activities and is typically done for the purposes of pay or profit. Johnson v. Sullivan,
929 F.2d 596, 597 (11th Cir. 1991) (citing 20 C.F.R. § 404.1572 and §404.1573). Some of
the factors taken into consideration when determining whether work is considered SGA are
“the time spent in the work; quality of the performance; whether the worker is self-employed;
the need for special conditions or supervision; use of experience, skill and responsibilities;
and whether the worker contributes substantially to the operation of the business.” Id. The
SGA of a claimant only bars entitlement to benefits during the periods of employment.
Powell ex rel. Powell v. Heckler, 773 F.2d 1572, 1576 (11thCir. 1985), see also Johnson, 929
F.2d at 599 (finding that a person otherwise disabled can pass into and out of eligibility for
benefits when ceasing or embarking upon employment with earnings in excess of the
regulatory guidelines used by the SSA).
To determine whether Gosha could perform her past work, the work must first be
established as substantial gainful activity. Roberts v. Apfel, 27 F.Supp.2d 1295, 1298 (N.D.
Ala. 1998) (the court stated that the work performed must be real work for profit). Gosha
gave the Commissioner evidence that her employment as a cashier was substantial gainful
activity wherein she was employed at Hardees, KFC, and Burger King separately as a cashier
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for a significant portion of 2007. (Tr. 201).
The employment records of Gosha were properly taken into consideration by the ALJ
when he found that “[t]he claimant has not engaged in substantial gainful activity since
March 15, 2008, the alleged onset date.” (Tr. 21). The periods of employment cited by
Gosha are all prior to the alleged onset date. While the ALJ found that Gosha engaged in
SGA prior to the onset date, which includes work in at least three locations as a cashier, he
found that she had not engaged in any gainful activity after the alleged onset date. The Court
agrees that the ALJ properly found her service as a cashier was SGA.
Gosha would have this Court look at employment information provided only by Gosha
herself and find that the employment of a cashier prior to the alleged onset date should not
have been considered as SGA. If the Court were to deem her service as a cashier not to be
SGA, the Court and the ALJ would likely reverse the finding that Gosha “meets the insured
status requirements of the Social Security Act.” (Tr. 21). If Gosha were to fail to meet the
insured status requirements the issue of disability would be moot. The first issue presented
by Gosha is nothing more than a creative means of restating the second issue, that the ALJ
erred in finding that Gosha can perform past employment. The Court finds that the ALJ
properly considered Gosha’s past work as a cashier as it was part of her substantial gainful
activity that allowed her to qualify for coverage under the Social Security Act.
The ALJ properly considered Gosha’s past work as a cashier.
To determine disability, the Social Security Regulations require a five-step sequential
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evaluation process. 20 C.F.R. § 404.1520(a). These regulations place a very heavy burden
on the claimant to demonstrate both a qualifying disability and an inability to perform past
relevant work. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). It is a requirement
that at the fourth step of the evaluation process the ALJ must “assess the claimant’s
‘residual functional capacity’ and measure whether a claimant can perform past relevant
work despite his or her impairment.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Circ.
2002) (citing 20 C.F.R. § 404.1520(f)); Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir.
1997). “The claimant  bears the initial burden of proving that she is unable to perform her
previous work.” Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990) (citing Cannon v.
Bowen, 858 F.2d 1541, 1544 (11th Cir.1988)). Furthermore, the claimant must show the
inability to do the previous type of work, not merely the specific job he or she held. Jackson
v. Bowen, 801 F.2d 1291, 1293 (11th Cir. 1986).
A vocational expert (VE) is not necessary in this step of the analysis. Lucas v.
Sullivan, 918 F.2d 1567, 1573 n.2 (11th Cir. 1990); see also Hubbard v. Comm’r of Soc.
Sec., 348 Fed. Appx. 551, 553 (11th Cir. 2009)(recognizing that when the ALJ is looking at
the demands of the claimant’s past work as generally performed, the ALJ is entitled to rely
on the DOT classifications); Bliss v. Comm’r of Soc. Sec. Admin., 254 Fed. Appx 757, 758
(11th Cir. 2007) (clarifying that vocational expert testimony is not required at Step Four of
the sequential analysis). In Lucas, the ALJ ultimately concluded that the claimant was
capable of performing past relevant work based in part on the testimony from a VE. Id. The
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ALJ may consider testimony from a VE at Step Four in the analysis should he choose to do
so. Hennes v. Comm’r of Soc. Sec. Admin., 130 Fed. Appx 343, 3 (11thCir. 2005) (the court
held that the ALJ did not err in considering the testimony of the VE in deciding that the
claimant could return to her past relevant work.).
The ALJ considered the testimony of Eric Anderson, a VE witness, who testified to
Gosha’s past relevant employment in relation to the Dictionary of Occupational Titles
(DOT). (Tr. 29-30). Testimony from vocational experts is “ highly valued and commonly
obtained in order to establish the availability of alternative jobs for disability claimants.”
Holley v. Chater, 931 F.Supp. 840, 851 (S.D. Fla. 1996) (citing Decker v. Harris, 647 F.2d
291, 298 (2nd Cir. 1981)). The VE, after taking into consideration Gosha’s past work, her
residual functional capacity (RFC), and the specific requirements of the previous relevant
employment pursuant to the DOT, testified that Gosha would be able to work as a cashier
either generally or as she actually performed it in the past. Id. The RFC is an assessment
which is based on all of the relevant evidence of a claimant’s remaining ability to do work
despite her impairment and is properly considered by the VE. Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1545(a)).
Gosha argues that the specific vocational preparation (SVP) of the past relevant
employment and the RFC do not allow her to perform her previous employment a cashier.
Gosha’s RFC allows her to carry out simple one or two step instructions and deal with
standardized situations. (Pl Br. 7-8). Such findings are consistent with one who can perform
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unskilled work. See 20 C.F.R. § 404.1521. Cashiers’ duties include the use of adding machines
or cash registers, making change, issuing receipts/tickets, or operating ticket-dispensing machines,
all of which is consistent with unskilled work and therefore consistent with the VE testimony. See
DOT #211.462-010, see also SSR 00-4p.
Gosha argues that there is a conflict between the reasoning level attributed to her by
the ALJ’s RFC as a reasoning level of “1” and the DOT’s description of a cashier as having
a reasoning level of “3.” (Pl Br. 8). Leonard v. Astrue, establishes firmly that in cases where
a conflict between the DOT and the VE’s testimony, in accordance with SSR 00-4p, the ALJ
“must elicit a reasonable explanation for the conflict before relying on the VE[‘s testimony].”
Leonard v. Astrue, 487 F.Supp.2d 1333 (M.D. Fla. 2007), aff’d Leonard v. Comm’r of Soc.
Sec., No. 10-11494, WL 165439 (11th Cir. Jan. 19, 2011) (quoting SSR 00-4p) (upholding
the principle that a VE’s testimony does not trump the DOT and that any apparent conflict
must be clarified by the ALJ). There is no specific wording that must be followed but rather
the ALJ shall “determine whether the jobs identified by the VE are in fact consistent with the
definitions in the DOT and the Plaintiff’s limitations is appropriate. Farley v. Astrue, 2008
WL 360832, *2 (M.D.Fla. Feb. 8, 2008).
After clarifying that a cashier is a light and unskilled worker with an SVP of 3 the
following exchange occurred between the ALJ and the VE during the November 4, 2009,
All right, assume for me a hypothetical individual. This individual has
the same age, education and work background as the claimant. This
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individual is able to lift, carry, push, pull 20 pounds occasionally, 10
pounds frequently. Can sit six hours in an eight hour day, stand and
walk six hours in an eight hour day. Can frequently stoop, kneel,
crouch and crawl and occasionally balance but is unable to climb and
is unable to perform in environments of fumes, odors, gasses, etx. or
environments of work hazards such as unprotected heights or dangerous
machinery. Additionally this hypothetical individual can understand,
remember and carry out short, simple instructions. And can attend for
periods of at least two hours with normal work breaks. Would this
individual be able to perform any of the prior jobs you’ve listed that the
yes, sir, the past work as a cashier would fit those limitations, but I’d
rule out the other jobs.
Well, I can understand why the medium work would disappear and I
assume that the inspector and nurse assistant would fall out on the skill
level. Is that correct?
And what about the poultry boner, would that be the hazardous work
Yes, sir, I believe so.
If we have a second hypothetical individual and this individual has the
same limitations as in number one but also the individual would miss
work one to two days a month due to impairment and need for medical
treatment. Would this individual be able to perform the cashier job?
(Tr. 54-55). The ALJ asked specific question to the VE regarding the medium work as well
as that of the previous employment that would “fall out on the skill level.” Id. While the
ALJ does not use any specific language he more than complies with the requirement to “elicit
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a reasonable explanation” about the types of previous work performed by Gosha, the work
and skill level requirements, as well as the differences between the previous employments
and her current limitations. The ALJ properly found Gosha is able to perform her past
The ALJ properly considered all of Gosha’s impairments including finding that
her alleged migraine headaches were not a severe impairment.
A “claimant's subjective testimony supported by medical evidence that satisfies the
[pain] standard is itself sufficient to support a finding of disability.” Brown v. Sullivant, 921
F.2d 1233, 1236 (11th Cir. 1991). “Indeed, in certain situations, pain alone can be disabling,
even when its existence is unsupported by objective evidence.” Foote v. Chater, 67 F.3d
1553, 1561 (11th Cir. 1995). “When evaluating a claimant's subjective symptoms, the ALJ
must consider the following factors: (i) the claimant's ‘daily activities; (ii) the location,
duration, frequency, and intensity of the [claimant's] pain or other symptoms;
(iii)[p]recipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side
effects of any medication the [claimant took] to alleviate pain or other symptoms; (v)
treatment, other than medication, [the claimant] received for relief ... of pain or other
symptoms; and (vi) any measures the claimant personally used to relieve pain or other
symptoms.’” Leiter v. Comm'r of Soc. Sec. Admin., 377 Fed. Appx. 944, 947 (11th Cir.2010)
(quoting 20 C.F.R. §§ 404.1529(c)(3) & 416.929(c)(3)), see also Sellers v. Barnhart, 246
F.Supp.2d 1201, 1211 (M.D. Ala. 2002) (“A diagnosis alone is an insufficient basis for a
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finding that an impairment is severe. The severity of a medically ascertained impairment
must be measured in terms of its effect upon ability to work and not simply in terms of
deviation from purely medical standards of bodily perfection or normality.”).
In Irby ex rel. Irby v. Halter, 171 F.Supp.2d 1287, 1289 (S.D.Ala. 2001), the court
found that the claimant’s knee problem did not constitute a severe impairment. In Irby the
court looked to the following factors that; (1) there was little medical evidence regarding the
knee with most coming from the claimant himself and not a physician; (2) the record failed
to demonstrate a “record of treatment” for the knee nor that any restrictions were placed on
the claimant as a result of the knee; (3) the only doctor referencing the impairment was the
consultative psychiatrist who was not examining the knee; and (4) the claimant has not
demonstrated “a sustained impairment” of the knee that would impact the ability to work.
Id. at 1290.
Gosha provides little medical evidence regarding the migraine headaches, the record
of treatment, or a sustained impairment caused by the migraines. See Irby, 171 F.Supp.2d
at 1289. An ALJ may properly focus on the claimant’s daily activities, medical records and
other activities during the relevant time period in finding that a claimant’s migraines are not
a disability. Osborn v. Barnhart, 194 Fed. Appx. 654, 662-23 (11th Cir. 2006). The
allegation of the headaches, any impairments caused by the headaches and the severity of
those impairments, as well as Gosha’s activities and credibility were taken into consideration,
individually as well as collectively by the ALJ. The ALJ properly exercised discretion that
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the alleged headaches are not a severe impairment. Nothing is before the Court which
requires reversal of the ALJ in this regard.
The ALJ properly distinguished the medical opinions and reasons for giving less
weight to the opinions of treating physicians.
The Eleventh Circuit holds that the opinion of a treating physician “‘must be given
substantial or considerable weight unless ‘good cause’ is shown to the contrary.’” Phillips,
357 F.3d at 1241 (11th Cir. 2004)(citing Lewis, 125 F.3d at 1440). “‘[G]ood cause exists
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. Id. In Lewis, the Eleventh Circuit also
established that the ALJ must clearly articulate the reasons for giving less weight to the
opinion of a treating physician and that the failure to do so constitutes reversible error. 125
F.3d at 1440. Furthermore, a treating physician’s opinion will be given controlling weight
if it is well supported by medically acceptable clinical and diagnostic techniques and is
consistent with other evidence in the record. Holley v. Chater, 931 F.Supp. 840, 849 (S.D.
Fla. 1996) (citing Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991)).
However, the simple fact that a treating physician’s opinion is included in the
evidence does not require the ALJ to follow it but rather the opinion may be given less
weight or dismissed entirely. Washington v. Barnhart, 175 F. Supp. 2d 1340, 1346 (M.D.
Ala. 2001) (finding that the ALJ properly considered the treating physician’s medical
opinions based on the objective medical evidence in the record as a whole it was “entirely
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reasonable” when the treating physician’s records and notes were inconsistent). When an
ALJ chooses to reject the opinions of the claimant’s treating physicians there needs to be
sufficient detail set forth by the ALJ for the court to conduct a meaningful review. Pettaway
v. Astrue, Case No. 06-00880-WS-B, 2008 WL 1836738, at *14 (S.D. Ala. Apr. 21, 2008)
(finding that the ALJ erred in rejecting the opinions of a treating physician because
insufficient detail was set forth by the ALJ for the reviewing court to be able to conduct any
kind of meaningful analysis).
Discretion is given to the ALJ because the Eleventh Circuit found “there is no rigid
requirement that the ALJ specifically refer to every piece of evidence in his decision so long
as [his] decision . . . is not a broad rejection which is ‘not enough to enable [a court] to
conclude that the ALJ considered [a claimant’s] medical condition as a whole.’” Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (quoting Foote, 67 F.3d at 1561). In
Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983), the Eleventh Circuit held “this
circuit does not require an explicit finding as to credibility,” but will accept the implications
which are obvious to the reviewing court. It is the duty of the ALJ to develop a full and fair
record. Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003). A full and fair record
enables the reviewing court “to determine whether the ultimate decision on the merits is
rational and supported by substantial evidence.” Welch v. Bowen, 854 F.2d 436, 440 (11th
Cir.1988) (internal quotations and citations omitted). This Court will reverse when the ALJ
has failed to “provide the reviewing court with sufficient reasoning for determining that the
Page 21 of 23
proper legal analysis has been conducted.” Keeton v. Dep't of Health and Human Servs., 21
F.3d 1064, 1066 (11th Cir. 1994).
The burden of proving disability rests on the claimant, and the claimant is responsible
for producing evidence that supports her claim and allows both the ALJ and the
Commissioner to reach the proper conclusion. 20 C.F.R. § 416.912(a). The ALJ notes that
Gosha continued to fail to follow treatment, and without good reason this constitutes a basis
for denying benefits. Lucas v. Sullivant, 918 F2d 1567, 1571 (11th Cir. 1990). The
determination that following a prescribed treatment would restore the ability to work must
be based on substantial evidence. Dawkins v. Bowne, 848 F.2d 1211, 1213 (11th Cir. 1988).
Here, the medical records noted by the ALJ show Gosha failed to comply with the treatment
prescribed treatment, that compliance with the treatment program would prevent all seizures
and the accompanying side affects, and would allow Gosha to return to gainful activity. (Tr.
The Court has reviewed the record in its entirety and finds that the ALJ did not err in
the rejection of the opinion of the treating physicians and that the record was developed
sufficiently for this Court to determine that the ultimate decision by the ALJ is rational and
supported by substantial evidence. The ALJ considered the lengthy medical history of Gosha
and provided a thorough recitation of the basic medical treatments Gosha had over a three
year period. (Tr. 21-30). The ALJ identified the different treating physicians, as well as the
agency medical consultants, and provided to the Court a detailed rendition of the
Page 22 of 23
inconsistencies between the different medical records, the inconsistencies of the individual
medical records and the testimony of Gosha, as well as the consistencies of the opinions of
the agency consultants with the record of evidence as a whole. (Tr. 24-29). The records
show that Plaintiff has consistently mislead her treating physicians and is a malingerer. (Tr.
27-28). The records contain findings that Plaintiff was not compliant with her medical
treatments from multiple treating physicians. Id.
After careful consideration of the Plaintiff’s medical records, the Court finds that the
ALJ met the “good cause” standard necessary to disregard the opinion of her treating
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the
Court concludes that the ALJ’s non-disability determination is supported by substantial
evidence and proper application of the law. It is, therefore, ORDERED that the decision of
the Commissioner is AFFIRMED.
A separate judgment will be entered.
Done this the 6th day of February, 2012.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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