Bing v. Astrue (CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 2/6/2014. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
WHITNEY L. BING,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CIVIL ACTION NO.: 2:12cv978-WC
Plaintiff, Whitney L. Bing, applied for disability insurance benefits, but her
application was denied at the initial administrative level. As a result, Plaintiff requested
and received a hearing before an Administrative Law Judge (“ALJ”). Following the
hearing, the ALJ issued a decision in which she found Plaintiff “not disabled” at any time
through the date of the decision. Plaintiff then sought review from the Appeals Council,
but that request was rejected. The ALJ’s decision consequently 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 case is now before the court for review under 42 U.S.C. § 405(g). Pursuant to
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 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.
28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and
entry of a final judgment by the undersigned United States Magistrate Judge. Pl.’s
Consent to Jurisdiction (Doc. 8); Def.’s Consent to Jurisdiction (Doc. 9). Based on the
court’s review of the record and the briefs of the parties, the court AFFIRMS the decision
of the Commissioner.
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.
42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
answer to any question, other than step three, leads to a determination of
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried 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 do this, the ALJ can either use the Medical
Vocational Guidelines4 (grids) or call 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
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. Cases arising under Title II are appropriately cited
as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
See 20 C.F.R. pt. 404 subpt. P, app. 2.
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s 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. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
“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); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support 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 (11th 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.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was fifty-four years old when the ALJ’s decision was issued. Plaintiff
had a high school education and past relevant work experience as a laboratory tester and
general office clerk. Tr. 18. Following the administrative hearing, and employing the
five-step process, the ALJ found that Plaintiff “has not engaged in substantial gainful
activity since the alleged onset date.” (Step 1) Tr. 10. At Step 2, the ALJ found that
Plaintiff suffered from the following severe impairments: “degenerative disc disease of
the cervical spine with mild spondylosis at C5-6 and C6-7; degenerative disc disease of
the lumbar spine with mild spondylosis at L5-S1; fibromyalgia; monoclonal
gammopathy; obesity; depression; and anxiety.” Id. At Step 3, the ALJ found that
Plaintiff’s impairments, impairment or combination of impairments did not meet or
medically equal any listed impairment. Id. Next, the ALJ found that Plaintiff retained
to perform light work as defined in 20 CFR 404.1567(b) except she cannot
climb ladders, ropes, or scaffolds. She should stay away from hazardous
machinery and unprotected height. She should not be exposed to extreme
cold and heat and no concentrated exposure to rain or humidity. She can
only do unskilled tasks with SVP1 or 2 and have only casual contact with
the public and co-workers. She should have supportive supervision that is
non-confrontational and changes should be introduced infrequently and
Tr. 12. Following the RFC determination, the ALJ found that Plaintiff could not perform
her past relevant work. (Step 4) Tr. 18. At Step 5, the ALJ found that, “[c]onsidering the
claimant’s age, education, work experience, and residual functional capacity,” and after
consulting with the VE, “there are jobs that exist in significant numbers in the national
economy that the claimant can perform.” Tr. 19. The ALJ identified the following
occupations as examples: “Inspector Hand Packager,” “Small Production Assembler,”
and “Garment Folder.” Id. Accordingly, the ALJ determined that Plaintiff “has not been
under a disability, as defined in the Social Security Act, from June 1, 2011, through the
date of th[e] decision.” Id.
Plaintiff requests the court reverse the ALJ’s decision because: (1) “the ALJ erred
in rejecting the pain testimony provided by Ms. Bing”; (2) “the ALJ failed to consider the
effects of Ms. Bing’s medications upon her ability to work”; and (3) “ the ALJ arbitrarily
pick and chose [sic] facts from the evidence to support her administrative findings.” Pl.’s
Br. (Doc. 12) at 11. All three of these bases for reversal revolve around the ALJ’s
credibility determinations. The claims are raised in one section, defended in one section,
and, to avoid confusion, will be addressed as one section.
In her decision, the ALJ made credibility determinations regarding Plaintiff’s
subjective complaints of pain, Plaintiff’s testimony regarding the side-effects of her
medication, and Plaintiff’s reported mental limitations.
In making the credibility
determinations the ALJ first determined that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms.” (Tr. 15); See
20 C.F.R. § 416.929(c). However, the ALJ also determined that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the” RFC. Id. Plaintiff does not take
issue with the process by which the ALJ arrived at her decision, but, rather, with the
decision—that Plaintiff’s statements were incredible.
In evaluating the ALJ’s determination, the court is mindful of the limits of its
review. That is, the court determines whether the ALJ applied the correct legal standards
and whether the decision is supported by substantial evidence. Graham, 129 F.3d at
1422. “Even if the evidence preponderates against the Commissioner’s findings, [a
reviewing court] must affirm if the decision reached is supported by substantial
evidence.” Crawford, 363 F.3d at 1158. Thus, Plaintiff’s burden is tall where she
challenges the ALJ’s credibility determination. She must show that the decision is
unsupported by “more than a scintilla, but less than a preponderance” of the evidence.
Richardson, 402 U.S. at 401. The court finds that Plaintiff is unable to carry that burden.
The ALJ found Plaintiff’s complaints regarding the severity of her pain from
fibromyalgia to be incredible. This is not to say that the ALJ found that Plaintiff did not
suffer pain from the condition. Indeed, the ALJ determined that the condition was
“severe” and took its effects into consideration when formulating the RFC. Additionally,
the ALJ clearly articulated her reasons for finding the Plaintiff’s testimony regarding the
severity of the pain incredible, stating, “For example, [Plaintiff] has received treatment
for this impairment, but that treatment has been essentially routine and conservative in
nature, consisting primarily of medication management that have been relatively effective
in controlling her symptoms.” (Tr. 16). Plaintiff argues that this is the only rationale for
the ALJ’s decision and that it conflicts with the evidentiary record of evidence. Pl.’s Br.
(Doc. 12) at 13.
The court does not agree with Plaintiff’s characterization. The ALJ first set forth
and summarized the medical evidence of record. Next, the ALJ explained that based on
the evidence set forth above, the record did not support the severity of Plaintiff’s
complaints, then the ALJ provided the example quoted above. The ALJ is not required to
set forth all of the evidence, reference that evidence in making her decision, then repeat
all of the evidence again in explaining her decision. The court is able to follow the ALJ’s
rationale, and her decision is supported by the evidence of record set out before her
finding. Certainly the evidence of record shows that Plaintiff suffers severe pain from
fibromyalgia. However, the record also supports the ALJ’s finding that the treatment has
been relatively conservative and routine in nature. Plaintiff points the court to her
complaints in March of 2011 that her nerves felt like they were “on fire.” Id. However,
the record also reflects that Plaintiff’s pain was treated, and successfully, with pain
medication. For example, in May of 2011, Plaintiff was admitted to the Jackson Hospital
Emergency room with suicidal ideation, complaining that she was depressed and wanted
to go to sleep to stop all of the pain. Tr. 14. She was transferred to a behavioral center,
treated with medication and discharged after she reported that she was sleeping better,
denied suicidal ideations, and her condition had stabilized. Id. Then, on July 11, 2011,
Plaintiff reported feeling okay on her present medication. Tr. 362. The court cannot find
reversible error with the ALJ’s determination, because the record contains substantial
evidence in support.
Plaintiff also takes issue with what she calls the ALJ’s failure to consider the
effects of Plaintiff’s medications on her ability to work. Pl’s Br. (Doc. 14). Here again,
Plaintiff points the court to her own testimony, as well as the opinion of Dr. Kent, that
Plaintiff would be severely limited by her pain and medications. The court finds this
argument to be without merit. First, the ALJ did consider the effects of Plaintiff’s
medications. The ALJ listed the effects to which Plaintiff testified and discussed them
within the section where she made the credibility determination regarding Plaintiff’s
symptoms. See Tr. 13. Much of the ALJ’s decision revolves around the medication
Plaintiff takes, and its effects.
Further, the ALJ discussed and rejected the opinion of Dr. Kent, stating that it was
“so extreme” and “conclusory,” unsupported by “the clinical findings of record,” and
“inconsistent with Claimant’s admitted activity level.” Tr. 17. Thus, the ALJ provided
“good cause” for the rejection of Dr. Kent’s opinion. See Phillips, 357 F.3d at 1240
(“‘[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.”).
Plaintiff’s argument that the ALJ failed to address or provide rationale for the rejection of
Dr. Kent’s opinion is simply without merit.
Finally, Plaintiff argues the ALJ improperly picked and chose facts from the
evidence of record to support her decision. Pl.’s Br. (Doc. 12) at 14. Plaintiff points this
court to the ALJ’s credibility findings regarding Plaintiff’s mental impairments. Id. In
support of this argument, Plaintiff points to the ALJ’s reference to Plaintiff’s Global
Assessment Form (“GAF”) score of 70 from 2011, while failing to mention earlier GAF
scores of 45 and 50, and to the ALJ’s reference to portions of Dr. Brantley’s opinion and
With regard to the GAF scores, this is not a case where the ALJ relied on the
direct GAF scores to make her determination. Rather, the ALJ discussed Plaintiff’s GAF
score of 70 in the context of Plaintiff’s admittance to the hospital for suicidal ideations.
That is, the ALJ said, “In regards to [Plaintiff’s] mental impairments, [she] did try and
commit suicide; however, she reported later that day that she was feeling better and it
would not have made things better. Within two months of that stay, the record shows her
Global Assessment of Functioning (GAF), was rated at 70, indicating no more than mild
limitations (Exhibit 16F).”
In other words, the ALJ was describing the
improvement of Plaintiff’s mental condition, starting with the suicidal ideations and
progressing to the GAF score of 70. The GAF score of 40 was taken just a few days after
Plaintiff was admitted to the hospital for suicidal ideation, Tr. 328-29. The GAF score of
70 was assessed on July 12, 2011. Then, on July 13, 2011 Plaintiff stopped taking her
medications, and received a GAF score of 50 on July 25, 2011. See Tr. 590-91. By
August 31, 2011, Plaintiff reported that she was again taking her medicine, sleeping
better, and felt “ok.” Tr. 383. The court does not find that the ALJ picked and chose
specific facts in support of her decision, but that she merely listed the bases for her
reasoning and explained why she did not find Plaintiff’s complaints to be entirely
As to the Dr. Brantley’s statements, Plaintiff points to this portion of the ALJ’s
Dr. Brantley noted that [Ms. Bing] had an unremarkable mental status
examination and he could not find any support for a clear pain disorder
with features of anxiety or depression. He opined that the medications
prescribed to [Ms. Bing] is effective and she is responding nicely. He
further opined that she is improving and has the potential for significant
improvement with her current regimen of medication and counseling
services. Additionally, [Ms. Bing] has described daily activities that are not
limited to the extent one would expect, given the complaints of disabling
symptoms and limitations. She reported that she cares for her pet, read, play
soduko, visit with family and friends, goes to ladies dinners, handle money,
drive, walk, shops in stores, do household chores, and uses the computer.
Pl.’s Br. (Doc. 12) at 15 (citing to Tr. 16-17). To this, Plaintiff states that she “fails to see
where Dr. Brantley writes that ‘he could not find any support for a clear pain disorder
with features of anxiety or depression’” and that the “ALJ also failed to mention that Dr.
Brantley expressed that “Prognosis was difficult to predict due to a multitude of health11
related problems.” Id. (citing Tr. 363). As to the missing quote from Dr. Brantley, that
can be found on page 362 of the record. As to Dr. Brantley’s assessment that a prognosis
would be difficult to predict, the ALJ did not rely on Dr. Brantley’s opinion for a
prognosis, other than to say that Plaintiff had the potential for significant improvement.
Rather, the ALJ relied on Dr. Brantley’s assessments following Plaintiff’s suicidal
ideations. See Tr. 16-17. As the Commissioner points out, there were many other
opinions expressed by Dr. Brantley regarding Plaintiff’s skills, response to medicine,
concentration, attention, and memory, and thought and processing, that support the ALJ’s
determination and were not mentioned in the decision. If the ALJ were required to
mention every piece of evidence, the decision would simply mirror the record. The court
does not find that the ALJ picked and chose facts in support of her decision, and that the
record as a whole supports the ALJ’s findings.
The court has carefully and independently reviewed the record and concludes that,
for the reasons given above, the decision of the Commissioner is AFFIRMED.
separate judgment will issue.
Done this 6th day of February, 2014.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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