Rothgeb v. Astrue (CONSENT)

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 8/21/12. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WALTER L. ROTHGEB,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 2:11-cv-175-CSC
(WO)

MEMORANDUM OPINION
I. Introduction
On July 11, 2007, the plaintiff, Walter L. Rothgeb, protectively filed a Title II1
application for a period of disability and disability insurance benefits. (R. 22, 24). This
claim was denied initially on October 10, 2007. (R. 67). Thereafter, Rothgeb filed a written
request for hearing on November 20, 2007 (20 C.F.R. 404.929 et seq. & 416.1429 et seq).
(R. 67). On August 26,2009, Administrative Law Judge (“ALJ”) Linda J. Helm held a video
hearing (20 C.F.R. 404.936(c) and 416.1436(c)). Following the hearing, the ALJ also denied

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There appears to be some confusion on the part of the Commissioner as to whether Rothgeb also
filed an application for supplemental social security income benefits under Title XVI. (Commissioner’s
Brief, Doc. 13 p. 1 (citing R. 310-11 (a previous SSI application from October 2004 that does not form the
basis of this appeal); R. 11; R. 321). The record supports Rothgeb’s assertion that he filed only for disability
insurance benefits under Title II. (Plaintiff's Brief, Doc. 12 p. 1; R. 80; R. 329). In any event, however, the
existence of a Title XVI application for SSI benefits would not alter the analysis or the result in this case.
See Sullivan v. Zebley, 493 U.S. 521,525 n.3 (1990) (“The regulations implementing the Title II disability
standard, 42 U.S.C. § 423(d) . . . and those implementing the identical Title XVI standard, § 1382c(a)(3) .
. . are the same in all relevant respects. Compare 20 CFR §§ 404.1520-1530 with §§ 416.920-930 (1989));
Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A) (“To be entitled either to Social Security disability
insurance benefits, 42 U.S.C.§ 423, or supplemental income benefits, 42 U.S.C. § 1382, a claimant must
establish that she is disabled. The statutory test for each of these benefits is the same.”).

the claim. (R. 8). The Appeals Council rejected a subsequent request for review on January
22, 2011. (R. 4). The ALJ’s decision consequently became the final decision of the
Commissioner of Social Security (“Commissioner”).2 See Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C. §§
405 (g) and 1383(c)(3). Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry
of final judgment by the United States Magistrate Judge. Based on the court’s review of the
record in this case and the briefs of the parties, the court concludes that the decision of the
Commissioner should be affirmed.
II. Standard of Review
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 make this determination3 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment severe?
(3) Does the claimant’s impairment meet or equal one of the specific

2

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.
3

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.

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impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the claimant unable to perform his or her former occupation?
(5) Is the claimant 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).4
The standard of review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial evidence.
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); 42 U.S.C. § 405(g). “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). A reviewing court may not look only to those parts of
the record which supports the decision of the ALJ, but instead 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 (11 th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.

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McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI).
The same sequence applies to disability insurance benefits. See Sullivan v. Zebley, 493 U.S. 521,525 n.3
(1990). Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Sullivan,
493 U.S. at 525 n.3; Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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Walker v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987).
III. The Issues
A. Introduction. Rothgeb was born on July 18, 1972, and was 37 years old at the
time of the administrative hearing in this case. (R. 22, 332). Rothgeb has completed the
tenth grade and has not obtained a GED. (R. 332).
In 1999, Rothgeb was diagnosed with bipolar disorder. (Tr. 222). In addition, he has
a past history of substance abuse, but he has not taken illegal drugs (except for smoking one
“joint”) since 2006. (R. 157, 166, 167, 175, 184, 223, 238, 244, 256, 338-39). He contends
that his “condition” has been consistently severe since 2003 or 2004. (R. 335). He alleges
that he has been disabled since June 1, 2006.5
Rothgeb was last employed in October 2004 (R. 75, 79, 92, 110, 332-33), when he
washed dishes, cooked, and cleaned floors in his position a kitchen worker in a restaurant.
(R. 92, 103-04, 334). He left his last job because he lost his temper and threw “a couple of
pots” at a coworker. (R. 335, 339). Thereafter, he received medical treatment for bipolar
disorder. (R. 335-36).
At the time he filed his application for social security benefits, Rothgeb lived with his
wife, but he has since separated from his wife and moved into his parents’ home. (R. 100-02,
332). Rothgeb testified at the August 26, 2009 administrative hearing in this case that his

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In a May 2006, decision, an ALJ found Plaintiff disabled for a closed period which began on August
1, 2004, and which ended (due to medical improvement after Rothgeb received medical treatment for
depression and bipolar and borderline personality disorders) on February 19, 2006. (R. 29-39). That decision
is not at issue in the present case.

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bipolar disorder prevents him from “be[ing] around a lot of people at one time.” (R. 335).
Rothgeb testified that he spent his time alone in a dark room sitting, sleeping, and watching
television. (R. 335, 338). He also testified that he stopped playing video games in 2005 when
he sold his video game console because he “couldn’t concentrate” on the games. (R. 338).
However, in a 2008 mental health board intake assessment, “video games” and “watch[ing]
TV” were listed as Rothgeb’s recreational and leisure interests. (R. 149). A 2007 psychiatric
review stated: “[Rothgeb] spends time playing video games and watching TV. . . . In spare
time he likes T.V. and video games.” (R. 218). In a September 2007 report, a consulting
psychologist noted: “Socially, the claimant functions in a somewhat isolated manner. The
claimant spends the majority of their day playing Playstation [video games], watching TV,
and doing chores.” (R. 223). On an August 2007 questionnaire as part of the application for
social security benefits, Rothgeb’s wife described Rothgeb’s activities in an “average day”
as follows: “plays video games, watches TV.” (R. 98, 112). She described his spare time
activities as “TV. Vid[e]o games.” ( R. 99).
Rothgeb stated that he was receiving counseling and taking medication that helped
him sleep and “help[ed] [him] control some of [his] anger and some of the depression.” R.
335-36. Rothgeb said that he lost his temper with his parents “maybe ten times” in the month
prior to the hearing, and that he was not violent. (R. 336-37).
Rothgeb met his wife four years prior to the hearing in this case and he separated from
her two years prior to the hearing. (R. 337). He testified that, “except for maybe one or two

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people,” he interacted mostly with family and he had no friends during the six years
preceding the hearing. (R. 337).
Upon questioning, a vocational expert (“VE”) testified that Rothgeb’s past work as
a kitchen worker is classified as “medium and unskilled” work. (R. 344). The VE also
testified that Rothgeb had past relevant work as a fast-food worker, which is classified as
light and unskilled. (Tr. 344). According to the VE, Rothgeb’s past jobs as a kitchen worker
and fast-food worker were performed as they are generally performed in the national
economy. (R. 344). The VE testified as follows in response to questions from the ALJ:
ALJ: Let's assume we have an individual with the same work history as
you've already described for Mr. Rothgeb. And let’s assume that the
individual is limited in the following fashion: with no exertional
limitations, but could not work around unprotected heights or
dangerous moving equipment, no more than occasional or casual
contact with the public, no complex or detailed instructions, he could
only do goal-oriented work and must avoid production pace work.
With these restrictions, in your opinion, could such an individual
perform any of the work that Mr. Rothgeb has performed in the past?
VE:

Yes, ma’am. Could do past work as a kitchen work[er]. Could not do
fast food work, as it would require more than occasional contact with
the general public.

ALJ: Now, imagine the same restrictions as were previously identified, but
now would require . . . two to three days out of a week where they
would be late to work or would have to leave the work station early or
would not even go to work two or three days out of a week. Would
there be jobs available? Would they be able to do past relevant work
or any other work?
VE:

No, ma’am. Could not do past relevant work or any other work. That
level of unpredictability and would also be a disruption in production
and pace in the workplace. I believe it would be more than employers
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would normally accommodate for entry level work, so there’s be no
work for that individual.
(R. 344-45).
At the close of the hearing, the ALJ left the record open for fourteen days to allow for
supplementation of the record with a report from a psychiatric appointment Rothgeb would
be attending after the hearing. (R. 345-46). After the hearing, Rothgeb supplemented the
record with documentation from the treating psychiatrist, Dr. Serravezza. (R. 143-46). Dr.
Serravezza noted that Rothgeb had “mild” deterioration in personal habits, in his ability to
ask simple questions or request assistance, to make simple work-related decisions, to respond
appropriately to changes in the work setting, to be aware of normal hazards and to take
appropriate precautions, to understand, remember, and carry out simple6 instructions, and to
understand, remember, and carry out repetitive tasks. (R. 144-46). Dr. Serravezza noted that
Rothgeb had “moderate” constrictions of his interests, “moderate” restriction in his daily
activities (e.g., ability to attend meetings (church, school, lodge, etc.), work around the house,
socialize with friends and neighbors, etc.), and “moderate” limitations his ability to interact
appropriately with the general public, perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances. (R. 144-46). Dr. Serravezza noted
that Rothgeb had “marked” limitations in his ability to get along with co-workers or peers,

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Dr. Serravezza’s notes show that she also initially circled the word “marked” to describe Rothgeb’s
estimated degree of ability to understand, remember, and carry out simple instructions. (R. 145). Then she
crossed out the “marked” description, wrote “Error” above it, and circled the term “mild” to describe
Rothgeb’s estimated degree of ability to understand, remember, and carry out simple instructions. Id.

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to understand, remember and carry out complex instructions, to maintain attention and
concentration for extended periods of time, to sustain a routine without special supervision,
to complete a normal workday without interruptions from psychologically based symptoms
and to perform at a consistent pace without an unreasonable number and length of rest
periods, to respond appropriately to supervision, and to respond to customary work pressures.
(R. 144-46).
B.

The Findings of the ALJ
The ALJ found that Rothgeb has the following severe impairments: bipolar disorder,

history of substance abuse disorder, and history of seizure disorder. (R. 13-14). The ALJ
stated:
The claimant has been diagnosed with and treated for bipolar disorder since
before the alleged onset of disability. He also has a history of substance abuse
disorder, but he not abused any substance since 2006 (Exhibit F-151). The
claimant also has a history of a seizure disorder, however he has not had a
seizure since 2005 (Exhibit F-78). These impairments are severe because they
significantly limit the claimant's ability to perform basic work activities.
(R. 16-17).
The ALJ found that Rothgeb did not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1. (R. 14-16).
The ALJ found that Rothgeb
has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: He cannot
work around unprotected heights or dangerous moving equipment. He is
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limited to no more than occasional or casual contact with the public. He cannot
understand, remember, and carry out complex instructions, but can understand,
remember, and carry out simple instructions. He cannot perform production
paced work, but can perform goal oriented work.
(R. 16-18).
The ALJ found that Rothgeb is capable of performing past relevant work as a kitchen
helper as actually and generally performed. (R. 19). The ALJ concluded, therefore, that
Rothgeb has not been under a disability since June 1, 2006. (R. 19).
C. Rothgeb’s Claims.
Rothgeb presents two issues for review:
1.

Rothgeb contends that the Commissioner’s decision should be reversed
because (according to Rothgeb) the ALJ’s residual functional capacity
assessment failed to incorporate the medical evidence provided by Mr.
Rothgeb’s treating physician, Dr. Serravezza, whose medical opinion
the ALJ gave significant weight.

2.

Rothgeb contends that the Commissioner’s decision should be reversed
because (according to Rothgeb) “the ALJ mischaracterizes or
misconstrues the record in her determination that the claimant’s
statements concerning his impairments are not fully credible.”
IV. Discussion

A.

Whether the ALJ erred by failing to incorporate medical evidence from Dr.
Serravezza
In stating the basis for her residual functional capacity determination, the ALJ set

forth in detail Dr. Serravezza’s notes as to Rothgeb’s limitations and impairments. (R. 1819). The ALJ stated that she gave “significant weight” to Dr. Serravezza’s assessment, and
the ALJ stated that Dr. Serravezza’s assessment was “incorporated in” her findings as to
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Rothgeb’s residual functional capacity. (R. 18-19). Nevertheless, Rothgeb argues that the
ALJ’s residual functional capacity assessment failed to incorporate the medical evidence
from Dr. Serravezza. See Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986) (“The
opinion of a treating physician is to be given substantial weight in determining disability.”).
Rothgeb argues that, contrary to the ALJ’s residual functional capacity determination,
Dr. Serravezza found that he had “marked” limitations in his ability to understand, remember,
and carry out simply instructions. (Plaintiff’s Brief, Doc. 12 p. 5). Rothgeb is simply
incorrect about Dr. Serravezza’s findings in this regard. Dr. Serravezza’s notes indicate that
she initially circled the word “marked” to describe Rothgeb’s estimated degree of ability to
understand, remember, and carry out simple instructions; however, she crossed out the
“marked” description, wrote “Error” above it, and circled the term “mild” to describe
Rothgeb’s ability to understand, remember, and carry out simple instructions. (R. 145). Dr.
Serravezza did find that Rothgeb had “marked” limitations in his ability to understand,
remember, and carry out complex instructions, which is consistent with the ALJ’s
determination that Rothgeb did not have residual functional capacity to “understand,
remember, and carry out complex instructions, but [he] can understand, remember, and carry
out simple instructions.” (R. 16-18). In addition, the ALJ’s hypothetical to the VE instructed
the VE to assume Rothgeb could not do work that involved “complex or detailed
instructions.” (R. 344-45). See Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002)
(“In order for a vocational expert's testimony to constitute substantial evidence, the ALJ must

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pose a hypothetical question which comprises all of the claimant's impairments.”). The
ALJ’s residual functional capacity assessment is fully consistent with Dr. Serravezza’s
findings with respect to Rothgeb’s ability to understand, remember, and carry out
instructions.
Rothgeb also argues that the ALJ’s residual functional capacity determination did not
incorporate Dr. Serravezza’s findings that he had “marked” limitations in his ability to
maintain attention and concentration for extended periods of time, to sustain a routine
without special supervision, to respond appropriately to supervision, and to respond to
customary work pressures. (Plaintiff’s Brief Doc. 12 pp. 4-5; R. 144-46). However, the ALJ
did expressly list these limitations in her opinion and she stated that the limitations in Dr.
Serravezza’s assessment were “given significant weight and have been incorporated into
[Rothgeb’s] residual functional capacity.” (R. 19).
Nevertheless, Rothgeb argues that it would have been impossible for Dr. Serravezza’s
assessment to have been incorporated in the ALJ’s residual functional capacity assessment,
and in her questions to the VE, because the ALJ permitted Rothgeb to supplement the record
with Dr. Serravezza’s assessment after the hearing. See Wilson, 284 F.3d at 1227 (holding
that, for the VE’s testimony to be valid, “the ALJ must pose a hypothetical question [to the
VE] which comprises all of the claimant's impairments.”). However, as the ALJ noted in her
opinion, Dr. Serravezza’s assessment was “consistent with and well supported by the medical

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evidence of record” (R. 19) which the ALJ did have before her7 at the time of the hearing
when she posed her hypothetical to the VE. Moreover, at the time the ALJ wrote her
opinion, she did have Dr. Serravezza’s assessment before her and she considered it in
determining that Rothgeb had
“the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: He cannot
work around unprotected heights or dangerous moving equipment. He is
limited to no more than occasional or casual contact with the public. He cannot
understand, remember, and carry out complex instructions, but can understand,
remember, and carry out simple instructions. He cannot perform production
paced work, but can perform goal oriented work.”
(R. 16-19).
In other words, after expressly considering Dr. Serravezza’s assessment and after
giving it “substantial weight,” the ALJ did not find that Dr. Serravezza’s assessment required
her to alter the initial residual functional capacity determination that formed the basis of her
hypothetical to the VE at the hearing. Dr. Serravezza’s assessment is not inconsistent with
the ALJ’s residual functional capacity determination, and the ALJ’s residual functional
capacity determination is supported by substantial evidence. Under the circumstances, the
ALJ was not required to hold an additional hearing and ask the VE more questions merely
because she granted Rothgeb’s request (R. 345-46) to allow for supplementation of the
record. Cf. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th Cir. 2007)

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See, e.g., Dr. William Simpson’s October 2007 Mental Residual Functional Capacity Assessment
(R. 204 (“Claimant has the ability to understand, remember[,] and carry out short, simple instructions.
Claimant can work in 2 hour intervals with scheduled breaks. Frequent public contact should be limited in
the workplace.”)).

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(“The hypothetical [posed to the VE] need only include ‘the claimant's impairments,’. . . not
each and every symptom of the claimant.” (quoting Wilson, 284 F.3d at 1227)). The court
will not reverse the ALJ simply for carrying out her duty to fully develop the record. Cf.
Ingram, 496 F.3d at 1269 (“The [ALJ] has a duty to develop the record where appropriate.”).
Further, because the ALJ expressly addressed and accepted Dr. Serravezza’s findings, the
court finds no merit in Rothgeb’s assertion that the ALJ erred as a matter of law by rejecting
or failing to address the findings of his treating physician. Id. at 1260 (holding that the
Commissioner’s decision must be upheld if supported by substantial evidence and proper
legal analysis).
B.

Whether the ALJ committed reversible error by mischaracterizing or
misconstruing the record in her determination that the claimant’s statements
concerning his impairments are not fully credible
Citing Flentroy-Tennant v. Astrue, Case No. 3:07-cv-101-J-TEM, 2008 WL 876961

(M.D. Fla. Mar. 27, 2008), Rothgeb contends that the ALJ erred as a matter of law by making
“numerous misstatements” which, “taken as a whole, reveal an inaccurate review of the
record and inadequate support in the record.” (Plaintiff’s Brief, Doc. 12 p. 9 (citing
Flentroy-Tennant, 2008 WL 876961 at *8)). Rothgeb points to several statements by the
ALJ which he contends are so inaccurate that they demonstrate the ALJ’s failure to
comprehend or adequately consider the record as a whole.
First, Rothgeb argues that the ALJ mischaracterized the record when she stated:
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. The claimant states that he has racing thoughts and flight of ideas
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(Exhibit F-152), but he is able to play video games and watch television.
Additionally, at the consultative examination he was able to perform serial 7’s
and spell the word “gold” backwards. He could recall 5 digits forward and 3
digits backward and three words after a five minute delay. The evidence as a
whole indicates that the claimant has moderate difficulties with concentration,
persistence or pace.
(R. 15).
According to Rothgeb, the ALJ erred in concluding that “[t]he evidence as a whole
indicates that the claimant has moderate difficulties with concentration, persistence or pace,”
id., because, in reaching that conclusion, she failed to credit Rothgeb’s testimony that he
stopped playing video games in 2005 when he sold his video game console to his nephew
because he “couldn’t concentrate” on the games. (R. 338). However, substantial evidence
supports the ALJ’s conclusion that Rothgeb did not stop playing video games in 2005 when
he allegedly sold his video game console. Specifically, in a 2008 mental health board intake
assessment, “video games” and “watch[ing] TV” were listed as Rothgeb’s recreational and
leisure interests. (R. 149). A 2007 psychiatric review stated: “[Rothgeb] spends time playing
video games and watching TV. . . . In [his] spare time he likes T.V. and video games.” (R.
218). In a September 2007 report, a consulting psychologist noted: “The claimant spends the
majority of [his] day playing Playstation [video games], watching TV, and doing chores.”
(R. 223). On an August 2007 questionnaire as part of the application for social security
benefits, Rothgeb’s wife described Rothgeb’s activities in an “average day” as follows:
“plays video games, watches TV.” (R. 98). She described his “usual daily activities” as
“Watching TV. playing Vid[e]o games. Folds clothes.” (R. 112). She described his spare
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time activities as “TV. Vid[e]o games.” ( R. 99).
Furthermore, regardless of Rothgeb’s continued video gaming activities, the record
is replete with evidence that supports the ALJ’s conclusion that Rothgeb had “ moderate
difficulties with concentration, persistence or pace.” (R. 15). For example, in addition to the
evidence cited by the ALJ, the court notes that Dr. Serravezza Rothgeb had “marked”
limitations in his ability to maintain attention and concentration for extended periods of time,
but that he had only “mild” deterioration in his ability to understand, remember, and carry
out simple instructions, to understand, remember, and carry out repetitive tasks, to make
simple work-related decisions, to respond appropriately to changes in the work setting, and
to be aware of normal hazards and to take appropriate precautions. (R. 144-46). Dr.
Serravezza also found that Rothgeb had only “moderate” constrictions of his interests,
“moderate” restriction in his daily activities (e.g., ability to attend meetings, work around the
house, and socialize with friends and neighbors), and “moderate” limitations his ability to
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances. (R. 144-46). Thus, as a whole, Dr. Serravezza’s findings support the
ALJ’s conclusion that Rothgeb had moderate limitations in his ability to maintain
concentration, persistence, or pace.
Accordingly, the record supports the ALJ’s decision to discredit Rothgeb’s testimony
that he no longer played video games, and substantial evidence supports her finding that he
has “moderate difficulties with concentration, persistence or pace.” (R. 15). The ALJ did

15

not “mischaracterize” or “misconstrue” the record on this point.
Rothgeb argues that the ALJ also “mischaracterized” and “misconstrued” the record
when she “implie[d] that Mr. Rothgeb’s active participation in his treatment and the disability
adjudication process renders his statements about the severity if his impairment ‘not fully
credible.’” (Plaintiff’s Brief, Doc. 12 p. 9). Specifically, Rothgeb takes issue with the
following paragraph of the ALJ’s opinion:
Several factors weigh against the claimant’s statements concerning the severity
and limiting effects of his impairments. The claimant’s wife completed two
Daily Activities Questionnaires on behalf of the claimant. The responses on
the questionnaires are inconsistent with the treatment notes and the findings
from the consultative examination. First, the claimant alleges he needs to be
reminded to take care of his personal needs (Exhibit E-45), but treatment notes
from South Central Alabama Mental Health show that the claimant’s dress,
grooming, and hygiene are appropriate (Exhibit F-153). He also alleges that
he is unable to count change (Exhibit E-44), but he was able to perform serial
7’s at the consultative examination (Exhibit F-81). The claimant alleged that
he is unable to pay attention as a result of his mental impairments (Exhibit
E-44); however, he was able to follow instructions and complete the questions
on the mental status exam at the consultative examination (Exhibit F-81).
Next, the claimant stated that he is easily angered and loses his temper
frequently, but treatment notes show that Dr. Seravezza has consistently rated
his impulse control as fair or good (Exhibit F -I 03-1 09). The claimant alleges
very limiting symptoms from his mental impairment, but he receives routine
treatment and monitoring. He goes to therapy every thirty to sixty days. He has
not been hospitalized or treated for decompensation during the period at issue.
Finally, his prescribed medication is very conservative. He takes lithium daily
and seroquil two or three times a week (Hearing Testimony). Overall, the
claimant’s allegations of symptoms are inconsistent with the objective findings
in the medical evidence of record. Consequently, the claimant’s and his wife’s
statements concerning the severity and limiting effects of his impairments are
not fully credible.
(R. 18).

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Rothgeb contends that the ALJ should not have cited evidence of “[h]is ability to
attend a consultative exam and fill out a form” as “as objective medical evidence” that he
his mental impairments left him “unable to pay attention.” (Plaintiff’s Brief, Doc. 12 p. 10).
However, as this court explained above, the record is replete with evidence (including Dr.
Serravezza’s assessment) that supports the ALJ’s conclusion that Rothgeb had “moderate
difficulties with concentration.” (R. 15).
Rothgeb also argues that the ALJ should not have discounted his allegation that he
“needs to be reminded to take care of his personal needs” by “point[ing] out that a claimant
was appropriately dressed at a doctors appointment one morning.” (Plaintiff’s Brief, Doc.
12 p. 10). In taking issue with the ALJ’s reliance on “treatment notes from South Central
Alabama Mental Health show that the claimant’s dress, grooming, and hygiene are
appropriate,” Rothgeb himself is out of keeping with Flentroy-Tennant, the very case he
cites in support of his argument. In Flentroy-Tennant, the district court considered whether
“taken as a whole,” the ALJ’s opinion “reveal[ed] an inaccurate review of the record and
inadequate support in the record.” 2008 WL 876961 at * 8. In this case, “taken as a whole,”
the ALJ’s opinion reveals thoughtful consideration of Rothgeb’s claims about needing to be
reminded to care for his personal hygiene, and adequate support in the record for her
conclusions on this issue. For example, at step three of the analytical process, the ALJ noted:
In activities of daily living, the claimant has moderate restriction. The
claimant's reported daily activities include watching television and playing
video games (Exhibit F -85). He watches cartoons and game shows and movies
for four hours at a time. He has to be reminded to care for his personal
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hygiene. He does not cook very often and shops for personal needs once a
month. He folds laundry and finishes chores when reminded. Although the
claimant has described daily activities which are fairly limited, two factors
weigh against considering these allegations to be strong evidence in favor of
finding the claimant disabled. First, allegedly limited daily activities cannot
be objectively verified with any reasonable degree of certainty. Secondly, even
if the claimant’s daily activities were truly as limited as alleged, it is difficult
to attribute that degree of limitation to the claimant’s medical condition, as
opposed to other volitional reasons, in view of the relatively weak medical
evidence and other factors discussed in this decision. The evidence of record
supports a finding that the claimant has moderate limitations in activities of
daily living.
(R. 14-15).
In other words, taken as a whole, and contrary to Rothgeb’s characterization of the
ALJ’s findings, the ALJ’s opinion adequately explains her finding that Rothgeb had
“moderate” restrictions in activities of daily living, including the ability to care for his own
personal hygiene without being reminded. (R. 14-15). Taken as a whole, the ALJ’s opinion
indicates that the ALJ did give some credit to Rothgeb’s allegation that “[h]e has to be
reminded to care for his personal hygiene,” but she also gave a detailed explanation of her
conclusion that this allegation did not constitute “strong evidence in favor of finding the
claimant disabled.” (R. 14-15). Further, contrary to Rothgeb’s assertions, and taking the
ALJ’s opinion as a whole, it is clear that the ALJ’s finding of “moderate” limitations in
activities of daily living (including personal hygiene activities) was not based solely on
Rothgeb’s ability to arrive “appropriately dressed at a doctors appointment one morning.”
(Plaintiff’s Brief, Doc. 12 p. 10). Rather, the ALJ expressly considered a number of factors
in reaching her conclusion on this point. The ALJ’s finding with respect to Rothgeb’s ability
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to care for his personal hygiene is supported by the record as a whole, including Dr.
Serravezza’s findings Rothgeb had that “mild” deterioration in personal habits and
“moderate” restriction in his daily activities (R. 144-46), and also including the September
2007 consultative examination by Dr. Jordan,8 which the ALJ discussed in detail in her
opinion (R. 17). The ALJ did not “mischaracterize” or “misconstrue” the record with respect
to Rothgeb’s ability to carry out these activities.
Rothgeb also argues that the ALJ erred in finding that Rothgeb did not have very
limiting symptoms “because he is able to receive routine treatment once a month.”
(Plaintiff’s Brief, Doc. 12 p. 10). Rothgeb misconstrues the ALJ’s opinion on this point.
Taking the ALJ’s reference to Rothgeb’s “routine treatment” in context, see
Flentroy-Tennant, 2008 WL 876961 at * 8, it is clear that the ALJ discounted the alleged
8

As the ALJ stated:
The record was supplemented by a consultative examination conducted by Randy Jordan,
Psy.D. (Exhibit F-81). At the consultative examination, the claimant reported a history of
angry outburst and that he quit high school because he had frequent conflicts with the
vice-principal. He stated that his sleep varies from two to twelve hours per night. His
appetite is fair to good. He manages his money and remembers his medication. The claimant
did well on the mental status exam. His speech was understandable 100% and did not reflect
pressured processes. He was able to perform serial Ts and spell the word "'gold" backwards.
His memory was not compromised. He was able to identify presidents, past presidents,
capitals, and the number of weeks in a year. He was able to say how items were similar and
different. Paranoid delusions were not present. The claimant did not report any current
auditory or visual hallucinations, although he had experienced hallucinations in the past. He
also reported a history of suicidal ideation and attempts, though not since being on Lithium.
Finally, the claimant's judgment was not compromised as he was able to state appropriately
how to respond to common social situations such as what to do in case of fire and why we
have seatbelts. Dr. Jordan noted that the claimant's daily living skills are not compromised
by intellectual or psychological function. Socially, the claimant functions in a somewhat
isolated manner. The findings from Dr. Jordan's reports support the above stated residual
functional capacity.

(R. 17; R. 222-223) (emphasis added).

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severity of Rothgeb’s symptoms not because he was able to keep an appointment once every
month or two, but because the treatment he was receiving at those sessions was “routine,”
his medication was “conservative,” and his overall level of psychiatric care was inconsistent
with the level of treatment one would expect for a patient whose symptoms were as severe
as Rothgeb’s allegedly were at the time of the hearing. (R. 14-15). The ALJ’s conclusions
on this issue are supported by substantial evidence, and this court will not reweigh the
evidence regarding the severity of his symptoms. See Barnes v. Sullivan, 932 F.2d 1356,
1358 (11th Cir. 1991) (“[T]he scope of our review of the [Commissioner’s] factual
determinations is limited to whether its findings were supported by ‘substantial evidence.’
. . . The court need not determine whether it would have reached a different result based upon
the record.”).
Rothgeb also alleges that the ALJ mischaracterized and misconstrued the record with
respect to his ability to maintain social relationships. Specifically, at step three of the
analytical process, the ALJ stated:
In social functioning, the claimant has moderate difficulties. The claimant
visits his parents, but likes to be by himself(Exhibit F-85). He talks to his
mother on the phone daily. He testified that he gets angry easily and loses his
temper, but is not violent (Hearing Testimony). He acknowledged that his
medications help control his anger. He does not have any friends, but he is able
to shop in public places. During the period at issue, the claimant married.
Although the marriage was not ideal and they separated within a year, the fact
that the claimant was able to date and then marry someone shows that he is
able to form and maintain long term relationships. Based on the claimant’s
statements, he has moderate difficulties in social functioning.
(R. 15).
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According to Rothgeb, the ALJ should not have found that he is “able to form and
maintain long term relationships” on the basis of his relationship with his wife. However,
other evidence of family relationships and social functioning cited by the ALJ, as well as the
record taken as a whole, supports the ALJ’s finding of moderate limitations in social
functioning. For example, Dr. Serravezza noted that Rothgeb had “moderate” restriction in
his ability to attend meetings (church, school, lodge, etc.), socialize with friends and interact
appropriately with the general public. (R. 144-46). Thus, at most, the ALJ’s reliance on
Rothgeb’s two-year-long dating and marriage relationship (R. 337) could constitute no more
than harmless error and could not serve as grounds for reversal. See Diorio v. Heckler, 721
F.2d 726, 728 (11th Cir. 1983) (holding that the harmless error rule prevented reversal of an
ALJ’s decision). Contrary to Rothgeb’s assertions, the ALJ’s conclusion that Rothgeb was
moderately limited in social functioning does not indicate a comprehensive failure by the
ALJ to adequately consider the record as a whole.
In sum, the ALJ did not mischaracterize or misconstrue the record. Her opinion is
supported by substantial evidence, and she committed no legal error in reaching her decision.
Therefore, the court finds no grounds for reversal in this case. See Ware v. Schweiker, 651
F.2d 408, 411 (5th Cir. 1981) (“When we review [the Commissioner’s] decision, we are
limited to determining whether there is substantial evidence in the record considered as a
whole to support his finding. 42 U.S.C. s 405(g). We may not reevaluate the evidence or
substitute our judgment for his. Goodman v. Richardson, 448 F.2d 388 (5th Cir. 1971). We

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do not, of course, act as automatons. We must scrutinize the record as a whole, Lewis v.
Weinberger, 515 F.2d 584, 586-87 (5th Cir. 1975), and base our judgment on a fair
examination of all that it contains.”).
V. Conclusion
For the reasons as stated, the court concludes that the decision of the Commissioner
denying benefits to Rothgeb should be affirmed. The Court will enter a separate final
judgment.
A separate order will issue.
Done this 21st day of August, 2012.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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