Reaves v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Karon O Bowdre on 4/25/2013. (JLC)
2013 Apr-25 PM 03:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
LISA B. REAVES,
MICHAEL J. ASTRUE,
Commissioner of the Social,
CIVIL ACTION NO.
On January 30, 2009, the claimant, Lisa B. Reaves, applied for disability insurance benefits
under Title II of the Social Security Act and supplemental security income benefits under Title XVI
of the Social Security Act. (R. 25, 53-57, 116-22). The claimant alleges disability commencing on
January 28, 2009 because of symptoms and limitations related to migraines, memory loss, strokes,
anxiety, depression, status post cervical fusion, Reynaud’s phenomena, status post knee surgery,
status post spinal surgery, adjustment disorder, and pain disorder. (R. 16, 55). These applications
were denied by the Commissioner on April 17, 2009. (R. 57). The claimant filed a timely request for
a hearing before an Administrative Law Judge, and the ALJ held a hearing on March 2, 2011. (R.
31, 71). In a decision dated July 20, 2011, the ALJ found that the claimant was not disabled as
defined by the Social Security Act and, thus, was ineligible for supplemental security income. (R.
On November 3, 2011, the Appeals Council denied the claimant’s request for review;
consequently, the ALJ’s decision became the final decision of the Commissioner of the Social
Security Administration. (R. 1-3). The claimant has exhausted her administrative remedies, and this
court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c). For the reasons stated below, the
court REVERSES and REMANDS the decision of the Commissioner.
II. ISSUE PRESENTED
The claimant presents the issue of whether the ALJ committed a reversible error when he
failed to mention or afford any weight to Dr. Torabi, the claimant’s long-term treating physician who
had opinions and medical evidence regarding the claimant’s alleged seizures contrary to the ALJ’s
III. STANDARD OF REVIEW
The standard of review of the Commissioner’s decision is limited. This court must affirm the
Commissioner’s decision if the Commissioner applied the correct legal standards and if the factual
conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham v. Apfel, 129
F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence. “Substantial
evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look only
to those parts of the record that support the decision of the ALJ, but also must view the record in its
entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman
v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person
cannot “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). To
make this determination the Commissioner employs a five-step, sequential evaluation process:
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next question,
or, on steps three and five, to a finding of disability. A negative answer to any
question, other than step three, leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20 C.F.R. §§ 404.1520, 416.920.
In determining whether the claimant’s symptoms and impairments are severe enough to
require disability, the claimant bears the burden of providing medical and other evidence to prove
her alleged disability. 20 C.F.R.§§ 416.912(a), (c); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987) (citing 42 U.S.C. § 423(d)(5)(A)).
Regarding medical evidence, the ALJ must give the opinions of the claimant’s treating
physicians substantial weight unless “good cause” exists for not doing so. Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997). “Good cause” is found when “the doctor’s opinion was not
bolstered by the evidence, or where the evidence supported a contrary finding” and also “where the
doctor’s opinions were conclusory or inconsistent with their own medical records.”Id.; see also
Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (2004); Edwards v. Sullivan, 937 F.2d 580, 583
(1991). Where the available medical evidence is not contrary to the treating physician’s opinion, and
no other good cause is presented, the Commissioner cannot discount the treating doctor’s opinion.
Schnorr v. Bowen, 816 F.2d 578 (11th Cir. 1986).
The ALJ must state, with particularity, the weight given to different medical opinions and
the reasons therefor, and the failure to do so is reversible error. Sharfarz v. Bowen, 825 F.2d 278, 279
(11th Cir. 1987); see also Phillips, 357 F.3d at 1241; MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986). The ALJ must also make clear the weight given to each item of evidence and the
reasons for the amount of weight accorded. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.
In evaluating pain and other subjective complaints, the ALJ must consider whether the
claimant demonstrated an underlying medical condition, and either “(1) objective medical evidence
that confirms the severity of the alleged pain arising from that condition or (2) that the objectively
determined medical condition is of such a severity that it can reasonably be expected to give rise to
the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (emphasis added); see also
Wilson v. Barnhart, 284 F.3d 1219, 1125-26 (11th Cir. 2002); 20 C.F.R § 404.1529.
The claimant has a high school education1 and was forty-five years old at the time of the
administrative hearing. (R.35). Her past work experience includes employment as an assistant,
insurance underwriter, radiology technician, clerk, typist, and optician. (R.178). The claimant alleged
that she was unable to work because of symptoms and limitations related to migraines, memory loss,
strokes, anxiety, depression, adjustment disorder, and pain disorder. (R. 16, 55). Although the
alleged onset date for disabilities is January 28, 2009, the ALJ reviewed the extensive medical
evidence dating back to 2007 for a more complete medical overview.
On February 6, 2007, the claimant was admitted to the University of Alabama at Birmingham
(“UAB”) hospital complaining of migraine headaches. The claimant told Dr. John Rothrock, M.D.,
that she had been experiencing daily headaches for three-and-a-half months. The headaches were
frontal, left-sided, and radiating to the parietal and occipital regions, and described as constant,
pounding, and 10/10 in severity. The claimant explained that the migraines were aggravated by
routine activity, caused nausea and vomiting, and could be alleviated by being in a dark room. The
claimant told Dr. Rothrock that the headaches caused a decrease in her inability to do daily activities
and also a decrease in her appetite. Dr. Rothrock’s notes indicate that the claimant had lost sixty
pounds in the past one-and-a-half years. First, Dr. Rothrock gave the claimant Dihydroergotamine
(DHE) and Compazine, which successfully alleviated some of the migraine’s severity. The next day
Dr. Rothrock proceeded with a more aggressive routine, adding intravenous magnesium sulfate and
The claimant testified that she completed twelfth grade, but the record is not clear if she
actually graduated high school.
Decadron, resulting in a dramatic decrease in headache severity. On February 10, 2007, the claimant
was discharged from UAB because her headache was “virtually gone.” Dr. Rothrock prescribed the
claimant Fiorinal, Demerol, and Phenergan for acute headache treatment, and Cephpax for migraines
treatment. (R. 214-15).
On August 1, 2007, the claimant returned to UAB for a routine follow-up. Dr. Rothrock
indicated that the claimant was “not doing well” and was “plagued by chronic nausea” from either
her migraines, methadone, or both. Although Dr. Rothrock refers to an appointment in June, the
record contains no evidence of that appointment. Also, the record is unclear as to when or if Dr.
Rothrock prescribed the claimant methadone. Dr. Rothrock also noted that he has unsuccessfully
treated the claimant with Botox in the past. Dr. Rothrock recommended that the claimant increase
her methadone dose to 10 mg, and prescribed Lortab and prednisone. Finally, Dr. Rothrock treated
the claimant in clinic with Demerol and Phenergan. (R. 223).
On September 18, 2007, the claimant went back to UAB for evaluation and treatment of
acute, persistent migraine headaches. The claimant claimed that she had experienced weeks of
headaches that never entirely went away. At that time, the claimant was no longer on methadone or
prophylatic therapy because of associated nausea. The claimant also told Dr. Rothrock that Lortab
was not effective. Dr. Rothrock treated the claimant in clinic with Nubain and Phenergan, then
prescribed lithium for headache prophylaxis and Percodan in place of Lortab. Dr. Rothrock noted
that the claimant should be monitored for her opioid use, and also remarked that “[a]s always,
despite her complaint of severe pain, she appears relatively composed.” (R. 222).
On October 10, 2007, the claimant had a routine follow-up appointment at UAB. Dr.
Rothrock noted that the claimant’s migraines had proven to be refractory to many oral prophylactics
therapies, Botox, and methadone. Dr. Rothrock’s notes indicate that he also saw the claimant on
September 27, when he instructed her to stop taking lithium and instead take Keppra 500 mg, but
the record does not include this September appointment. The claimant claimed that her headaches
still occurred daily. Dr. Rothrock again remarked that the claimant did not appear to be under
distress. Dr. Rothrock recommended that the claimant stop taking Keppra and begin a trial of
phenobarbital. He also prescribed the claimant Percodan for severe headaches, and recommended
that the claimant be admitted at Dr. Saper’s inpatient headache treatment facility in Ann Arbor,
Michigan, if her insurance covered the hospitalization. His back-up treatment plan was admitting
the claimant to UAB for several days of intravenous phenobarbital treatment. Dr. Rothrock treated
the claimant in clinic with IM meperidine and promethazine. (R. 221).
On October 19, 2007, the claimant visited Dr. Chandra K. Gehi, MD, of the Anniston
Neurology and Headache Management Center on referral from her primary care physician, Dr.
Thomas R. Perkins, Jr., MD of the Moody Medical Clinic, although the record contains no notes
from Dr. Perkins. The claimant stated that she had tried many medications to try to alleviate her
headache pains. The claimant mentioned that she suffered from chronic headaches since she was
sixteen years old, and that the headaches stopped for five years while she was taking Topamax. The
claimant complained that she was in constant pain for a year, and that she suffered from insomnia,
sleeping no more than three hours each night due to her headaches. Dr. Gehi stated that the claimant
was not in “acute distress but very uncomfortable, crying and frustrated with headache.” Dr. Gehi’s
impression of the claimant was that she had chronic migraines, and he prescribed her Remeron,
Anaprox, Flexeril, and clonidine. Dr. Gehi also performed a nerve treatment injection at the base of
the claimant’s head with Xylocaine bilaterally, and requested that the claimant return in two weeks.
On November 6, 2007, the claimant returned to Dr. Gehi for a follow-up visit. Dr. Gehi
remarked that the occipital block slightly improved the claimant’s headaches, but the headaches and
insomnia continued to exist. Dr. Gehi performed another occipital block, and advised the claimant
to continue Anaprox, Flexeril, and clonidine. He also prescribed Maxzide to control the claimant’s
blood pressure; Remeron, an antidepressant; and Topamax as a preventive measure. Dr. Gehi
requested that the claimant return in three weeks. (R. 229).
On November 15, 2007, the claimant returned to Dr. Gehi complaining of recurrent
migraines, muscle contraction headaches, and severe posterior cervical neck pain. Although the
occipital block had helped the claimant’s conditions, the claimant explained that a migraine began
on Friday and by Sunday had become so severe that she went to the emergency room. The claimant
said that an injection performed at the hospital made her feel confused and dazed and did not relieve
her headache. Dr. Gehi noted that the claimant had severe tenderness in her occipital area and her
neck area was very sore. Dr. Gehi performed trigger point injections and an occipital block, and
advised her to continue her current medications but take DHE and Phenergan, a sleep aid, as needed.
Dr. Gehi requested that the claimant return in two weeks. (R. 228).
On December 10, 2007, the claimant return to Dr. Gehi complaining of recurrent migraines,
muscle contraction headaches, fibromyalgia, chronic depression, and hypertension. The claimant
revealed a lot of personal information to Dr. Gehi relating to her high level of stress. The claimant
stated that she had been married twice, she was abused by her first husband for twenty years, and her
children were giving her problems. One of her children “left” and the other was eighteen, married,
and pregnant. Besides her family life, the claimant also complained of her continued headaches and
medications, even stating that Cymbalta was making her nervous and suicidal. Dr. Gehi indicated
that the claimant appeared frustrated and depressed, and had severe neck pain that seemed like
fibromyalgia pain. Dr. Gehi recommended that the claimant stop taking clonidine and Maxzide, and
reduce the amount of DHE. Dr. Gehi advised the claimant to continue Topamax and Flexeril, and
take Phenergan only for severe headaches. Dr. Gehi noted that the claimant should be on
antidepressants but she was reluctant. Dr. Gehi requested that the claimant return in six weeks. (R.
On January 22, 2008, the claimant returned to Dr. Gehi for a follow-up visit complaining of
the same problems as her previous visit. She claimed that she still has headaches daily, despite her
medications. Her family problems continued to give her stress, especially her daughter leaving and
a conflict between her ex-husband and her children. Dr. Gehi noted that the claimant “[was]
depressed, not able to work with the chronic headaches.” He also stated that the claimant had severe
tenderness at the base of her skull and all over her trapezius muscle. Dr. Gehi noted that he spoke
with the claimaint for at least thirty minutes and came to the conclusion that her headaches were not
migraines. Instead, Dr. Gehi determined that her headaches were more muscle contractions and
fibromyalgia. He advised the claimant to continue taking Topamax and he increased the amount of
Remeron and Neurontin. Dr. Gehi mentioned that he was reluctant to give the claimant pain
medication, but did not state why exactly he came to that conclusion. He indicated that the claimant
should see a psychiatrist, psychologist, or counselor. Dr. Gehi requested that the claimant return in
six weeks; however his notes indicate that she did not show for her follow-up visit on March 4, 2008.
On November 3, 2008, the claimant saw Dr. Edwin Keel from Dr. Keel & Associates Health
Care in Oxford, Alabama for the first time with the chief complaint of a migraine. Dr. Keel treated
the claimant with an injection of a narcotic. (R. 337-39).
On November 13, 2008, the claimant had an initial visit with Dr. Amir Torabi, MD, from
Northeast Alabama Neurological, and complained primarily of headaches. The claimant described
her headaches as mostly unilateral, almost always right-sided, and associated with photophobia,
phonophobia, and nausea. She explained that she experienced a headache at least once every two
weeks, and it can last up to five days. Dr. Torabi stated that the claimant “basically has tried almost
all of the medications that we know for migraines.” He also noted that the claimant’s blood pressure
fluctuated and could be associated with her headaches. Dr. Torabi further indicated that the claimant
has difficulty sleeping, although no formal sleep study had been performed. Dr. Torabi’s impression
stated that the claimant’s migraines were atypical and refractory to medications. Some atypical
features mentioned were dysautonomia, a breakdown disorder of the autonomic nervous system;
redness of her right eye; and a runny nose during her headaches. Dr. Torabi deduced that these
features could suggest a particular rare category of headaches instead of just migraine headaches. To
see if the claimant responded to medicines specifically for these rare headache types, Dr. Torabi
started the claimant on Indomethacin, Verapamil, Requip and Ropinirole (for periodic leg movement
disorder), and gave the claimant samples of Treximet. (R. 306-307).
On November 25, 2008, the claimant returned to see Dr. Torabi for follow-up work regarding
her migraine headaches. Dr. Torabi noted that the claimant had an allergic reaction to Indomethacin
that required an emergency room visit. The claimant complained of a severe headache, lack of
concentration, and memory problems.
That same day, Dr. Torabi admitted the claimant to Stringfellow Memorial Hospital for
observation, and prescribed her Depacon, Decedron, DHE, and Zofran. (R. 303). Dr. Torabi noted
that three days before admission, the claimant told Dr. Torabi that “she started to have headaches
associated with photophobia, phonophobia, nausea and vomiting and indomethecin which was given
by [Dr. Torabi] did not work for her.” While at the hospital, the claimant underwent a spinal tap, a
CT scan, an MRI, and an MR angiogram of her brain. All of the tests came back normal, and no sign
of any acute intracranial process existed. Dr. Torabi gave the claimant Phenergan, dexamethasone,
Toradol, Imitrex, and Demorol, and the claimant’s headache improved slightly while in the hospital.
Dr. Torabi recommended that the patient continue her medicines as outpatient, including Klonopin,
Ambien, Verapamil (for hypertension and migraine prevention), Topamax, Ultram, and Imitrex for
headaches. Dr. Torabi noted that he abstained from giving the claimant narcotic medication because
of the possibility of rebound headaches. (R. 288-89).
On December 5, 2008, the claimant entered the emergency department of Stringfellow
Memorial Hospital complaining of a headache. The claimant stated that the onset of her symptoms
was thirty-three days prior. The claimant admitted visual changes but denied fever or focal motor
weakness associated with the headache. Dr. David L. Smith, MD, treated the claimant in the
emergency room with Compazine, but the claimant stated that her pain was unchanged. Dr. Smith
indicated that the claimant had an acute severe migraine headache, and once her condition was
stable, Dr. Smith discharged the claimant. While at Stringfellow, Dr. Kevin Sells, MD, also gave
the claimant Demoral. (R. 277-79).
On December 18, 2008, the claimant saw Dr. Torabi for a follow-up visit regarding her
headaches. Dr. Torabi noted that the claimant’s conditions were improved, but that she was
concerned with how much her medications were costing. Dr. Torabi indicated that the claimant
recently had a severe migraine that caused the claimant’s right eye to be blind for a few hours, but
an ophthalomoscopic examination did not reveal any papilldema or optic nerve paleness. Dr. Torabi
recommended that the claimant continue Topamax, and also take Lortab as needed to prevent
emergency room visits. (R. 302).
On December 26, 2008, the claimant entered the emergency department of Stringfellow
Memorial Hospital complaining of a headache that began twenty-four hours prior. She described that
the headache was frontal and throbbing with pressure. Dr. Smith again noted that the claimant was
medicated with Compazine but her pain was unchanged. His clinical impression was acute severe
migraine headache, and the claimant was discharged to home and given a return to work note. The
record does not mention the claimant’s exact employment at that time. (R. 271).
On January 21, 2009, the claimant returned to Dr. Torabi for a follow-up appointment. Dr.
Torabi noted that she was “doing better than before” and was working again, but again the record
does not mention which place of employment. The claimant asked for Lortab because it was helping
her headaches. Dr. Torabi gave the claimant a sample of Axert and prescribed Lortab, Nortriptyline,
and Thorazine, and also noted that she should not drive or work with the medication because it could
cause drowsiness. (R. 631).
On January 29, 2009, the claimant saw Dr. Torabi complaining of problems with her speech,
specifically that her voice had recently changed. The claimant indicated that she had recently lost her
job because of concentration problems and headaches, and had missed multiple days at her new job,
but, again, the record is not clear about her new place of employment. Dr. Torabi described the
claimant as stressed out and anxious, but did not see any dysarthria. Dr. Torabi noted that the
claimant’s symptoms could be possible side effects from her medication, such as Thorazine, so he
discontinued the claimant’s Thorazine usage. He also gave her a few Klonapin for anxiety attacks,
and requested that she return in two months. (R. 300).
On January 31, 2009, the claimant went to Jacksonville Medical Center’s emergency room
complaining of a migraine headache with associated vomiting, blurred eyesight, and photophobia.
The record does not clearly indicate the doctor’s name who treated the claimant, but the claimant was
treated with Demonerol and Phenergan. The record is also unclear about how long the claimant
remained in the emergency room. (R. 313-17).
On February 5, 2009, the claimant entered Regional Medical Center’s emergency room
complaining of a moderate migraine. The claimant also mentioned that her daughter had just had her
first baby, and the claimant had difficulty sleeping. The hospital notes indicate that after treatment
with Decadron, the claimant was still unimproved. The record does not clearly indicate how long the
claimant remaining in the emergency room. (R. 321-22).
On February 13, 2009, the claimant completed a Headache Questionnaire for the Disability
Determination Service. The claimant stated that she experiences a headache at least two to three
times per week. The claimant explained that during these headaches, she remains completely
motionless in a room with no light or noise and cannot do anything for herself. The claimant also
mentioned that the headaches cause her to vomit severely and have difficulties eating and drinking.
The claimant stated that these severe headaches began in 2008, and typically last three to four days
each. The claimant further stated that stress sometimes causes her headaches. (R. 153-54).
At the time of the Headache Questionnaire, the claimant listed Topamax, Compazine, and
Lortab as her prescription medications. The claimant indicated that these medications sometimes
give her relief for about an hour before the pain increases again, and that the medications cause
drowsiness and nausea. The claimant stated that she has “had over 300 shots in the face and head
[and] it didn’t work.” The claimant also mentioned that her headaches require emergency room
treatment, sometimes as often as every week or two. Finally, the claimant commented that “my
headaches have control over my life[.] I don’t have a clue when one is coming until it is too late[.]
I lose my vision in the right eye for a short time[.] I see stars and start throwing up.” (R. 154-55)
On February 13, 2009, Laurie A. Tipton, a friend of the claimant for over twenty-five years,
completed a Daily Activities Questionnaire (Third Party Information) for the Disability
Determination Service. Ms. Tipton indicated that the claimant suffers from headaches most days and,
therefore, usually spends her day in bed to reduce the pain, but has trouble sleeping. Ms. Tipton
mentioned that the claimant rarely goes shopping, does not cook, cannot stand for prolonged periods
of time, and needs assistance with any movement during a headache episode. Ms. Tipton stated that
the claimant “rarely goes out anywhere anymore, especially since the Dr. told her she cannot drive
because she never knows when she may have another stroke,” and that the claimant was a very social
person before her migraine problem. (R. 146-49).
On February 19, 2009, the claimant completed a Function Report for the Social Security
Administration. Regarding daily activities, the claimant indicated that she usually eats breakfast but
occasionally has to throw up afterwards. Then, the claimant gets back in bed to lay down until lunch
time, when her mother-in-law prepares lunch for her. The claimant stated that after lunch she rests
until her mother-in-law prepares dinner, and then the claimant goes to sleep for the night. The
claimant mentioned that she had difficulty sleeping because of her pain. The claimant also indicated
that prior to her alleged illness and pain, she lived an active lifestyle, including cleaning the house,
cooking, and looking after her family. The claimant stated that she required help dressing, bathing,
caring for her hair, and using the bathroom when she experienced a headache, and that she is
sometimes too sick to eat. (R. 158-59).
Furthermore, the claimant stated in her Function Report that she does not drive, rarely shops,
and rarely goes outside. The claimant mentioned that she is unable to concentrate for long periods
of time or pay attention for more than a few minutes, and she does not follow instructions well.
Regarding her social life, the claimant indicated that she no longer had hobbies, only spends time
with others when they come to her house, but attends church. In the section about her abilities, the
claimant stated that her illness affected the following abilities: lifting; squatting; bending; standing;
reaching; walking; sitting; kneeling; talking; hearing; stair climbing; seeing, memory; completing
tasks; concentration; understanding; following instructions; using hands; and getting along with
others. When asked to explain how her illness affected the items, the claimant explained that she is
“not able to do anything” during a headache episode. (R. 161-63).
Finally, the claimant mentioned she loses her memory and forgets where she is sometimes.
The claimant remarked that, for example, she could not remember anything from her daughter’s
wedding in November, 2008, and that she apparently took off her under garments before walking
down the aisle, and slurred her speech throughout the night. She also stated that a similar instance
occurred at her workplace where her co-workers “thought I was on drugs and I was having a stoke”
and it led to her termination from that job. (R. 164-65).
On February 19, 2009, the claimant also completed a Work History Report for the Social
Security Administration. The claimant indicated that her previous work included: assistant for an
insurance agent; underwriter for an insurance broker; radiology technician at a hospital; clerk at a
tire warehouse; typist for an insurance broker; and an optician. The claimant stated that she did not
use machines, tools, or equipment in any of these jobs, but did use technical knowledge and skills
and also completed reports. Her latest employment as an optician from 2007 to January 2009
included edging lenses for glasses, fitting patients for glasses, answering the phone, handling returns
of glasses and contacts, and ordering supplies. (178-85).
On March 21, 2009, the claimant returned to see Dr. Keel complaining of a migraine with
nausea and light and sound sensitivity. Dr. Keel again treated the claimant with a narcotic injection
before discharging her. (R. 334-36).
On March 25, 2009, the claimant saw Dr. Torabi, who noted that the claimant was anxious
and depressed, and also had periods of confusion. Dr. Torabi found that the claimant had an
abnormal EEG with slow activity, but no clear evidence of seizure. Dr. Torabi’s notes indicate that
the claimant’s chronic anxiety and depression caused her chronic headaches. Dr. Torabi gave the
claimant samples of Keppra, for partial onset seizures, and prescribed Nadolol and Stadol for her
headaches. (R. 628).
On April 2, 2009, Dr. Robert G. Summerlin, Ph.D., a licensed psychologist, evaluated the
claimant at the request of the Disability Determination Service. Dr. Summerlin began by noting that
the claimant’s husband also attended the session and they both gave good background information
and effort. Dr. Summerlin previously reviewed the claimant’s medical records. Dr. Summerlin
reported that the claimant mentioned a history of migraines, hypertension, and possible strokes. The
claimant also mentioned that she could not remember anything from her daughter’s wedding in
November of 2008, but apparently slurred her speech and took off her undergarments before walking
down the aisle. She claimed that she “thought [she] was on drugs and  was having a stroke.” Dr.
Summerlin stated that the claimant’s last job was at an eye clinic, but that she lost her job when she
“blacked out and went crazy.” Dr. Summerlin indicated that the claimant had never abused
recreational drugs nor prescription medications.
Dr. Summerlin described the claimant as neatly dressed and groomed, appeared younger than
her age, and oriented. He also indicated that the claimant’s remote memory functioning was intact,
and her abstract thinking ability, knowledge of general information, computational skills, and
vocabulary were consistent with her education and IQ. The claimant’s thought processes were
labeled as logical, coherent, and focused, and her thought content was responsive to questioning. Dr.
Summerlin stated that the claimant has problems with sleep and only receives approximately six
hours of sleep each night, and could groom herself without assistance but could not perform
household chores. Dr. Summerlin also stated that the claimant could talk on the phone, shop with
her husband, visit family, watch TV, and listen to the radio, but did not operate a motor vehicle since
January 2009 and also did not attend group gatherings. Finally, Dr. Summerlin offered the following
diagnostic impressions: pain disorder associated with both psychological factors and a general
medical condition; psychological symptoms affecting medical condition, conversion disorder
(provision); dissociative amnesia (provisional); and malingering (provisional). Dr. Summerlin noted
that if the claimant’s medical conditions did not explain her dissociative behavior then the claimant
should have a more thorough psychoneurological evaluation and therapy. He also suggested the
claimant experience a trial on antidepressant medicines, but the record does not clearly indicate if
the claimant followed Dr. Summerlin’s suggestion. (R. 324-26).
On April 4, 2009, the claimant saw Dr. Keel at Patient First Healthcare again, complaining
of a migraine with no associated symptoms. Dr. Keel ordered two new prescriptions for the claimant,
but the only evidence of the prescriptions is in Dr. Keel’s handwriting that is illegible. (R 330-31).
On April 6, 2009, Dr. Eugene E. Fleece, Ph. D, completed a Mental Residual Functional
Capacity assessment for the claimant. In the category of Understanding and Memory, Dr. Fleece
checked that the claimant was not significantly limited or moderately limited. Under Sustained
Concentration and Persistence, Dr. Fleece marked the claimant significantly or moderately limited
in all areas. In the Social Interaction category, the claimant was either not significantly limited or
moderately limited in every section except she was markedly limited in the area of interacting
appropriately with the general public. Dr. Fleece also considered the claimant not significantly
limited or moderately limited regarding her adaptation. Dr. Fleece assessed that the claimant could
understand and recall simple workplace duties and procedures; execute simple commands;
concentrate for two hour periods; could make an eight hour work day if given routine breaks; and
would need some supervisory flexibility in scheduling but would remain competitive in the
workplace. Dr. Fleece opined that the claimant would miss a day of duties each month due to her
mental disorders. He strongly believed that the claimant should not have any contact with the general
public, but that the claimant could take and use direct, non-confrontational supervision, and the
claimant would not distract co-workers to a significant loss of production.
Under Anxiety-related Disorders, Dr. Fleece noted that the claimant’s anxiety disorder is
present but does not precisely satisfy the diagnostic criteria. Under Somatoform Disorders, Dr.
Fleece stated that the claimant’s unexplained spells and pain indicated an impairment that does not
precisely meet the diagnostic criteria. Dr. Fleece also noted that the claimant’s personality disorder
might make her “possibly dependent.” Under Functional Limitations, Dr. Fleece categorized the
claimant as requiring a moderate degree of limitation. Dr. Fleece’s consultant notes indicate that he
mostly considered the opinions and evaluations of Dr. Gehi, Dr. Torabi, and Dr. Summerlin, in
combination with the claimant’s limited daily activities. (R. 341-57).
On April 11, 2009, Ashley Terry, a Disability Specialist and Single Decisionmaker,
completed the claimant’s Physical Residual Functional Capacity assessment. Ms. Terry noted that
the claimant was capable of occasionally lifting twenty pounds; frequently lifting ten pounds;
standing, walking, or sitting six out of eight hours per day; pushing and pulling with no limitations;
frequently climbing ramps and stairs; frequently balancing, stooping, kneeling, crouching, and
crawling; and never climbing ladders, ropes, or scaffolds. Ms. Terry based her recommendations on
the claimant’s medical records from Northeast Alabama Neurological, Stringfellow Memorial
Hospital, Jacksonville Medical Center, and Regional Medical Center. Ms. Terry also gave the
claimant unlimited environmental limitations, except to avoid concentrated exposure of vibration,
fumes, odors, dusts, gases, poor ventilation, hazards, and unprotected heights. When asked how
consistent the severity of the claimant’s alleged symptoms was based on all the evidence seen, Ms.
Terry remarked that the “claimant alleges chronic migraines and strokes. Claimant states that I end
up in the ER everytime I have a migraine, I can’t sit up, I can’t walk, I can’t see, and I can’t stand
the light in my eyes. Claimant’s reported symptoms severity is considered partially credible based
on the medical evidence in file.” (R. 360-66).
On April 20, 2009, the claimant went to C.A.R.E.S. Immediate Family Care complaining of
a migraine. She refused to have a CT of her head done because of the expense, and was discharged.
On May 27, 2009, the claimant returned to Dr. Torabi’s office for a follow-up appointment
about her headache pain. Dr. Torabi indicated that the claimant was doing “the same” and had
headaches from time to time. He also mentioned that the claimant did not have insurance and,
therefore, could not afford many medications. Dr. Torabi prescribed the claimant Tegretol, Cafergot,
Compazine, and Lortab for her pain. (R. 627).
From July 26, 2009 to October 31, 2010, the claimant went to the emergency room of
Jacksonville Medical Center fourteen times complaining primarily of headaches, occasionally with
associated vomiting or vision problems. The doctors at the Medical Center typically treated the
claimant with Compazine, Toradol, Phenergan, and Demorol, and sometimes gave the medications
through injections. One note regarding medications also indicated that morphine was given to the
claimant on February 18, 2010, but because the note was handwritten and unreadable, it is not clear
who ordered or gave the claimant the morphine. (See R. 542). Additionally, a CT scan done on April
20, 2010 indicated no mass effects; no midline, shift or intracranial hemorrhage; and no significant
abnormality. (R. 526). The severity of pain varied between these emergency room visits, ranging
from mild/moderate to severe. (See R. 459, 529, 541, 549). The record indicated that on September
16, 2010, the claimant could ambulate and perform all activities of daily living independently, and
demonstrated the ability and willingness to learn. (R. 459). Upon referral, the claimant saw Dr.
James Yates for follow-up appointments. (R. 432-595).
On July 28, 2009, the claimant went to Dr. Torabi for an appointment regarding her
headaches. Dr. Torabi mentioned that the claimant went to the emergency room recently, and had
a possible seizure in June where she “was driving and lost control.” Dr. Torabi prescribed the
claimant Depakote for her seizures, Clonidine for hypertension, and Lortab and Relpax for her
headaches. (R. 626).
On October 16, 2009, the claimant saw Dr. Torabi for a follow-up appointment. Dr. Torabi
noted that the claimant was doing very well, had only one or two recent headaches, and had not
experienced any seizure activity for a long period of time, although he did note that an abnormal
EEG suggested a complex partial seizure. Dr. Torabi continued the claimant’s medications of Stadol
and Depakote. (R. 625).
On January 19, 2010 the claimant established herself as a patient of Dr. Yates after Dr.
Torabi left town. From January 19, 2010 to February 5, 2011, the claimant visited Dr. James Yates
four times. Between those visits, Dr. Yates also frequently wrote the claimant prescriptions, faxed
records to Dr. Upadhyay, and gave the claimant samples of new medications for her headaches. (R.
597-601). On the first visit, Dr. Yates noted that the claimant’s medical history included migraines
and complex partial seizure disorder with associated amnesia, although she had not experienced a
seizure “in quite a while.” Dr. Yates also indicated that the claimant experienced migraines about
two or three times a month, but the migraines disappear rapidly with her medications and she could
function well regardless. Dr. Yates noted that the migraines increased recently because the claimant
was out of some medications, although the record does not state why the medications were unfilled.
Dr. Yates prescribed the claimant propranolol and Compazine and gave samples of Depakote. (R.
On February 17, 2010, the claimant returned to Dr. Yates because of an increase in migraine
frequency. Dr. Yates changed the prescription of propranolol to Nadolol and gave the claimant
samples of Relpax. (R. 600).
On May 27, 2010, the claimant returned to Dr. Yates complaining of trouble with her
migraines. Dr. Yates had previously prescribed the claimant Norco for pain, and it was working
“reasonably well,” but the Topamax cause the claimant to feel foggy, unlike in the past. Dr. Yates
recommended that the claimant taper off her use of Topamax, prescribed Nadolol, Norco, and
Depakote, and gave samples of Treximet and Sumavel. (R. 599).
On September 2, 2010, the claimant returned to Dr. Yates still complaining of migraines. Dr.
Yates noted that the claimant had tried all of the prophylactic regimens available for her migraines.
Dr. Yates refilled her prescriptions of Nadolol, Norco, and Sumavel. (R. 598).
On November 16, 2010, Dr. Yates referred the claimant to Dr. Upadhyay’s pain clinic. Dr.
Yates also noted that the patient claimed Lortab was not helping her migraines but Demerol and
Toradol helped. (R. 597).
On December 8, 2010, the claimant visited the office of Dr. Shailesh Upadhyay, MD, for a
consultation regarding her chronic migraines. The claimant described her pain as throbbing and
constant in the temporal region, and she also indicated that her pain was a moderate five out of ten
and was causing her to have sleep problems. Dr. Upadhyay noted that the claimant’s pain was
aggravated by activity and exertion, and improved by rest. Besides evaluating the claimant’s
headaches, Dr. Upadhyay also stated that the claimant was positive for anxiety and an eating
disorder. Dr. Upadhyay performed a full drug screening on the claimant, prescribed oxycodone and
Topamax, and requested that the claimant return in one month. Dr. Upadhyay also referred the
claimant to a neurologist. (R. 394-97).
On January 5, 2011, the claimant saw Dr. Upadhyay complaining of chronic migraines. Dr.
Upadhyay noted that the claimant had not taken a pain pill in several days, but the record does not
indicate her reason for doing so, and he discussed taking pain medications correctly with the
claimant. Dr. Upadhyay stated that the claimant’s pain scale appeared to be a two out of ten, and that
her mobility and general functioning were normal. Dr. Upadhyay continued the claimant’s current
medications. (R. 391-93).
On February 7, 2011, the claimant returned to Dr. Upadhyay complaining of chronic
migraines and neck pain. Dr. Upadhyay noted that oxycodone and Topamax were helping to control
some of the claimant’s pain, and that her pain appeared to be a two on a scale of one to ten. Dr.
Upadhyay also indicated that the claimant explained potential addiction problems with narcotic
treatment. Dr. Upadhyay continued the claimant’s prescriptions of oxycodone and Topamax, but he
limited the number of refills, and he prescribed Flexeril to control muscle spasms. (R. 388-90).
On May 11, 2011, Dr. Summerlin performed a second evaluation of the claimant for the
Disabilities Determination Service. Dr. Summerlin reported that the claimant continued to claim
primary problems of migraines and hypertension. He also noted that the claimant experienced great
memory loss since her initial evaluation, but no studies confirmed the alleged strokes. Dr. Summerlin
reported that the claimant appeared neatly dressed and groomed, and weighed about sixty pounds
less than when he saw her two years prior. He noted no abnormalities in her speech, and her remote
memory functioning appeared to be intact. Dr. Summerlin found that the claimant’s abstract
thinking, fund of general information, and vocabulary were consistent with her educational
background and IQ, and her thought processes were logical, coherent, focused, and without
interference from a psychotic process. Dr. Summerlin indicated that the claimant had a very poor
appetite. He also found that the claimant bathed and groomed herself without help, drove as
necessary, shopped and visited with family members, watched tv, listened to radio, and attended
church. Dr. Summerlin opined that the claimant suffered from pain disorder associated with both
psychological factors and a general medical condition (migraine headaches); psychological factors
affecting medical condition (migraine headaches); adjustment disorder with mixed anxiety and
depressed mood, chronic; general medical conditions of migraine headaches and hypertension; and
mild to moderate emotional symptoms affecting person, social, and occupational functioning. Dr.
Summerlin concluded that while the claimant did not have a psychological disorder that would cause
her to be unemployable, she had a constricted lifestyle with a strong dependency on family members.
Finally, Dr. Summerlin suggested that the claimant see a counselor to help develop a more
productive lifestyle. (R. 607-9).
On May 11, 2011, Dr. Summerlin also completed a Medical Source Statement of Ability to
do Work-Related Activities (Mental) for the claimant’s disability request. Dr. Summerlin indicated
that the claimant’s impairments affected her ability to understand, remember, and carry out
instructions. Specifically, he marked that the claimant’s migraine headaches, anxiety, and depression
mildly affected her understanding, remembering, and carrying out simple instructions, but
moderately affected her understanding, remembering, carrying out, and making judgments on
complex work-related instructions and decisions. Dr. Summerlin also found that the claimant’s
impairments affected her ability to interact appropriately with supervisors, co-workers, and the
general public, and respond to changes in a routine work setting. He marked that the claimant’s
migraine headaches, anxiety, and depression mildly affected her interaction with the public,
supervisors, and co-workers, and moderately affected her ability to respond appropriately to usual
work situations or changes in work settings. Dr Summerlin finally noted that the claimant’s
impairments limited her ability to perform household chores. (R. 610-12).
On May 19, 2011, the claimant visited Dr. Hisham Hakim, MD, a neurologist, at the request
of the ALJ. Dr. Hakim noted that Topamax was helping the claimant’s headaches, and that the
claimant had not been to the emergency room because her pain medication was working reasonably
fast. Dr. Hakim indicated that the claimant experienced about five headaches per month, and the
headaches lasted about one hour with her medications. Dr. Hakim mentioned that the claimant also
experienced pain at the base of her neck, possible Raynaud’s phenomena, and depression. Dr. Hakim
noted that the claimant worked until about two years prior and stopped because of “an episode”
where she lost her memory, but such a problem had not been repeated. Dr. Hakims opined that the
claimant suffered migraine headaches, status post cervical fusion pain, Raynaud’s phenomena and
possibly carpal tunnel syndrome, status post surgery knee pain, and chronic depression. (R. 620-22).
After the Commissioner denied the claimant’s request for supplemental security income, the
claimant requested and received a hearing before an ALJ. (R. 71). The hearing took place on March
2, 2011. (R. 31). The claimant testified that she last worked in January of 2009 for an eye care
business, selling glasses and contacts for about two years. The claimant explained that before that
job, she was an insurance underwriter for Southern Cross Underwriters for about six years, and also
performed clerical work in insurance for about seven years prior. The claimant testified that she left
her last job in January of 2009 because she was having seizures or some sort of altered medical state
that caused her to need her husband to pick her up and take her to the doctor. The claimant testified
that although the doctors ran tests on her, she did not remember what the tests revealed but she
received ongoing treatment and medication. (R. 36-39).
Regarding daily activities and limitations, the claimant testified that she drove some, did
very little housework, did not handle her own finances, and attended church. She also mentioned that
her mother-in-law lived with her and did the housework. The claimant stated that on a typical day
she did “[n]ot much of nothing.” (R. 40-42). The claimant testified that she suffered severe
migraines, memory problems, tingling in her fingers and hands, and neck pain after neck surgery in
2005. The claimant also indicated that she had back surgery in the ‘90s. The claimant testified that
she had trouble gripping and lifting things, and would definitely experience trouble lifting a tenpound bag of flour. (R. 40-43, 46).
Regarding pain and medications, the claimant testified that the only pain medication she took
was Oxycodone, and only took Oxycodone when she experienced headaches. The claimant explained
that she usually had a headache one or two times per week. When asked, the claimant stated that no
doctors speculated that her chronic headaches could be related to her neck problems. The claimant
also indicated that Dr. Upadhyay was “helping [her] more.” Furthermore, the claimant testified that
it would be difficult to keep an office job like she had in the past because of her migraines and neck
problems. (R. 45-48).
The ALJ then examined the vocational expert, Dr. Linda Williams. Dr. Williams first
testified that the claimant’s work as a clerk typist was considered a sedentary and semi-skilled
position. Next, Dr. Williams testified that the claimant’s employment as a customer service
representative was a light and semi-skilled position. Also, Dr. Williams stated that the claimant’s
work as an underwriter was a sedentary and skilled position. (R. 49).
The ALJ asked Dr. Williams three hypothetical situations. First, the ALJ asked Dr. Williams
to assume that the claimant was a person the same age, education, and past work as the actual
claimant; was limited to light, unskilled work with no hazardous machinery; could perform no work
at unprotected heights; could not operate motor vehicles; and had only occasional contact with the
general public. Dr. Williams testified that those limitations could not apply to the claimant’s past
work, but could apply to an inspector/hand packager. She further testified that an inspector/hand
packager requires light and unskilled work, and that 1,800 jobs of this type exist in Alabama, and
100,000 jobs of this type exist in the nation. Dr. Williams then testified that the limitations could
apply to a cleaner/housekeeper because it is also light and unskilled and that 2,500 jobs of this type
exist in Alabama and 150,000 jobs of this type exist in the nation. Dr. Williams also testified that
a small products assembler would also fit the limitations, because it is light and unskilled work, with
1,200 such jobs existing in Alabama and 150,000 such jobs existing in the nation. (R. 49-50).
The ALJ then asked Dr. Williams to consider a second hypothetical, regarding a person with
the same limitations but who also would miss four or more days per month because of complications
from her medical condition. Dr. Williams testified that such a person would not be able to perform
any of the jobs previously mentioned, nor any other jobs in the national economy. (R. 50).
Next, the ALJ asked Dr. Williams to consider a third hypothetical, regarding a person with
again the same limitations as the first hypothetical, but also had marked impairments in
concentration, persistence, and pace. Dr. Williams testified that such a person would not be able to
perform any of the jobs previously mentioned, nor any other jobs in the national economy. (R. 5051).
The ALJ asked the claimant to see a State neuropsychologist for an examination in the thirty
days following the hearing. The ALJ stated that such an examination would need to occur before he
could make a decision in the case. (R. 51). On May 19, 2011, Dr. Hisham Hakim, MD, a neurologist,
evaluated the claimaint at the ALJ’s request, and Dr. Hakim’s records and opinions were part of the
record considered by the ALJ in making his decision.
On July 20, 2011, the ALJ issued a decision finding that the claimant was not disabled under
the Social Security Act. (R. 25). First, the ALJ found that the claimant had not engaged in substantial
gainful activity since the alleged onset of her disability. Next, the ALJ determined that the claimant
had the severe impairments of migraines; status post cervical fusion; Reynaud’s phenomena; status
post knee surgery; status post spinal surgery; adjustment disorder; and pain disorder. (R. 16).
The ALJ concluded that these impairments did not singly nor in combination manifest the
specific signs and diagnostic findings required by the Listing of Impairments. Specifically, the ALJ
found that the severity of the claimant’s impairments did not meet the severity contemplated in the
listings. The ALJ explained that no medical expert concluded in the claimant’s record that her
impairments meet or equal a listing requirement. (R. 16).
The ALJ found that the claimant’s mental impairments did not singly or in combination meet
or equal the medical criteria of the Anxiety-related Disorders listing or Somatoform Disorders. The
ALJ clarified that in order to meet those listing requirements, the claimant’s mental impairments
must result in at least two of the following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended duration. The ALJ
explained that a “marked” limitation is more than moderate but less than extreme. (R. 16).
The ALJ found that although the claimant has moderate restrictions in daily living, social
functioning, and concentration, persistence, or pace, the impairments do not qualify as “marked”
according to her medical record. Furthermore, the claimant experienced no episodes of
decompensation for extended duration. The ALJ concluded that because the claimant’s mental
impairments do not result in at least two marked limitations or repeated and extended episodes of
decompensation, the claimant’s mental impairments did not meet the criteria of the listings
requirements. The ALJ also noted that the alternative criteria for meeting the listing, referred to as
“paragraph C” criteria, were not presented in the claimant’s evidence. (R. 16-17).
Next, after considering the entire record, the ALJ determined that the claimant had the
residual functioning capacity to perform limited light work. Specifically, the ALJ limited the
claimant to light, unskilled work with no hazardous machinery, unprotected heights, operating of
motor vehicles, and only occasional contact with the general public. In determining this functioning
capacity, the ALJ followed the Eleventh Circuit’s pain standard. First, he determined whether the
claimant had a medically determinable physical or mental impairment that could reasonably be
expected to produce the claimant’s pain and symptoms. Then, the ALJ considered whether the
claimant’s objective medical evidence confirms the severity of the alleged pain arising from that
condition or that the objectively determined medical condition is of such a severity that it can
reasonably be expected to give rise to the alleged pain. The ALJ noted that if statements made by the
claimant regarding the intensity, persistence, or limiting effects of her pain are not supported by the
objective medical evidence, the ALJ had to decide the credibility of the statements based on the
record as a whole. (R. 17).
To address the claimant’s allegations of her limitations from her impairments, the ALJ
discussed the claimant’s responses from her Disability Report, Headache Questionnaire, Function
Report, and testimony from the hearing. The ALJ mentioned the claimant’s statements that she could
not perform job duties because she suffered from migraines, memory loss, strokes, anxiety,
depression, and chronic migraines. The ALJ further noted the claimant’s statements that she ended
up in the emergency room every time she experienced a migraine, and could not sit, walk, see, eat,
or sleep. The ALJ also mentioned the claimant’s allegation that her daily activities were severely
limited specifically because of her headaches. (R. 17-18).
Regarding daily activities, the ALJ stated that the claimant allegedly did very little
housework, attended church on Sundays, and could lift up to ten pounds. The ALJ noted that the
claimant testified that she had “seizures” that caused her to leave work in the past, and that she no
longer drove herself. The ALJ considered that the claimant reported several migraines per week, had
neck surgery in 2005, and takes medication one or two times per week. (R. 18). The ALJ stated that
although the claimant alleged a history of cerebrovascualar accidents, her medical record does not
indicate evidence to support the allegation.
The ALJ determined that, while the claimant does have underlying medical impairments that
could reasonably cause pain, the pain is not to the extent alleged. The ALJ explained that statements
made regarding symptoms and pain cannot, alone, establish disability. To evaluate the intensity and
persistence of the claimant’s symptoms, the ALJ stated that he looked to 1) daily activities; 2) the
location, duration, frequency, and intensity of pain and other symptoms; 3) precipitating and
aggravating factors; 4) the type, dosage, effectiveness, and side-effects of her medications; 5)
treatment, other than medications, for pain alleviation; 6) any other measures used to relieve pain;
and 7) other factors concerning functional limitations and restrictions due to pain and other
symptoms. The ALJ determined that the claimant’s testimony regarding daily activities, medications,
pain, and symptoms were not fully credible. (R. 18-19).
The ALJ pointed to the claimant’s reported “strokes,” noting that no medical evidence
existed to support cardiovasular accidents. The ALJ also mentioned that the claimant once
complained of speech problems, but that the treating doctor saw no dysarthria. Additionally, the ALJ
indicated that the results of the EEG and MRI tests in 2008 showed no epileptiform activity, no
clinical seizure activity, and no acute intracranial abnormality, but an indication of mild degree of
global encephalopathy from abnormal theta range diffusion. Throughout the ALJ’s brief recitation
of the claimant’s medical record, the ALJ only mentions the name of one of the claimant’s many
treating physicians. Specifically, the ALJ merely stated that Dr. Upadhyay treated the claimant for
pain management, and never mentioned Dr. Rothrock, Dr. Gehi, Dr. Keel, Dr. Yates, or Dr. Torabi
in his decision. (R.19).
The ALJ also considered medical evidence that would seem to support the claimant’s
credibility. For instance, the ALJ noticed that the claimant’s doctors opined that the claimant
suffered from anxiety disorder, chronic tension headaches, and migraines. Additionally, the ALJ
considered the large number of emergency room visits and other doctor visits for the claimant’s
migraines, and he noted that the claimant was usually treated with injections for her pain and
migraines. (R. 19).
However, based on the claimant’s medical record, including evidence predating the alleged
onset date, the ALJ determined that the claimant was not disabled and was capable of performing
less than light work activity. The ALJ based this determination particularly on the consultative
examination by Dr. Summerlin, consultative examination by Dr. Hakim, and a non-examining
review of the claimant’s records by Dr. Fleece. The ALJ did not specifically mention the names of
any other physician, but he noted that he did give weight to the claimant’s treatment records, but did
not mention the amount of weight or indicate which records. The ALJ gave little weight to the
claimant’s friend, Laurie A. Tipton’s opinion, and did not accord the Single Decision-Maker any
evidentiary weight. (R. 20-23).
The ALJ gave significant weight to Dr. Summerlin, a clinical psychologist and the State
Agency’s examining psychologist. The ALJ noted that Dr. Summerlin’s opinions were supported
by his own clinical examinations and tests and were consistent with the medical record as a whole.
The ALJ gave additional weight to Dr. Summlerin because he was a specialist on the claimant’s
medical issues regarding psychological disorders. (R. 21).
The ALJ considered Dr. Summlerin’s examination of the claimant performed on May 11,
2011, following the ALJ hearing, and also noted Dr. Summerlin’s previous examination done two
years prior. The ALJ noted that Dr. Summerlin believed the claimant had a pain disorder associated
with psychological factors and a general medical condition of migraine headaches; psychological
factors affecting migraine headaches; chronic adjustment disorder with mixed anxiety and depressed
mood; general medical conditions of migraines and hypertension; and mild to moderate emotional
symptoms affecting personal, social, and occupational functioning. The ALJ also noted that Dr.
Summerlin specifically stated that he believed the claimant did not have a psychological disorder that
would make her unemployable, but she had a strong dependancy on family members. (R. 20).
The ALJ next considered the Medical Source Statement of Ability to do Work Related
Activities (Mental) completed by Dr. Summlerin. The ALJ mentioned that Dr. Summerlin opined
that the claimant’s ability to understand, remember, and carry out instructions was mildly affected
by her impairments, and her ability to make judgments on complex work-related decisions and
understand, remember, and carry out complex instructions was moderately affected by her
impairments. Also, the ALJ’s opinion includes that Dr. Summerlin noted that the claimant had a
mild limitation in interacting appropriately with the public, supervisors, and co-workers, and a
moderate limitation in responding appropriately to usual work situations and changes in routine work
setting. The ALJ mentioned that Dr. Summerlin stated that the claimant’s ability to perform
housework was limited. The ALJ stated that Dr. Summerlin’s opinions were based on the claimant’s
impairments of migraines, anxiety, and depression. (R. 20).
The ALJ then looked to Dr. Hakim’s neurological consultative examination from May, 2011,
also following the hearing. The ALJ gave substantial weight to Dr. Hakim’s opinions because,
although not a treating physician, he was the State’s examining physician; his opinions were well
supported by his own examinations and tests; and his opinions were not inconsistent with the record
as a whole. Also, the ALJ noted that Dr. Hakim’s opinions were in his area of speciality, so the ALJ
afforded more weight to Dr. Hakim’s neurological opinions. (R. 21).
The ALJ noted that Dr. Hakim’s impressions included migraines, status post cervical fusion,
Raynaud’s phenomena, possible carpal tunnel syndrone, knee pain, and chronic depression. The ALJ
also specifically mentioned that Dr. Hakim remarked that the claimant had about five headaches per
month but responded to her medication reasonably quick. The ALJ next looked to the Medical
Source Statement of Ability to do Work Related Activities (Physical) completed by Dr. Hakim. The
ALJ considered Dr. Hakims opinions regarding the claimant’s physical limitations, stating that she
could: frequently lift and carry ten and twenty pounds; occasionally lift fifty pounds; sit for two
hours at a time, twice during an eight hour workday; stand and walk each for one hour at a time,
twice during an eight hour workday; frequently reach, handle, finger, and feel bilaterally; frequently
push and pull with her hands and feet; occasionally climb ladders or scaffolds; frequently climb stairs
and ramps, balance, stoop, kneel, crouch, and crawl; occasionally work around moving mechanical
parts, operate motor vehicles, work around humidity, wetness, dust, odors, fumes, and pulmonary
irritants, extremes in temperature, and vibrations; never work around unprotected heights; and could
work around moderate noise. (R. 21).
Next, the ALJ gave some weight to Dr. Fleece, who evaluated the claimant’s psychological
disorders for disability purposes but did not actually examine the claimant. The ALJ stated that he
afforded little weight to Dr. Fleece’s opinions when they were contrary to the conclusions the ALJ
derived from the entirety of the record. (R. 22).
The ALJ considered Dr. Fleece’s opinions in the Psychiatric Review Technique from April,
2009. The ALJ stated that Dr. Fleece gave the claimant moderate limitations in daily living, social
functioning, concentration, persistence, and pace. Dr. Fleece also opined that the claimant had
experienced one or two episodes of extended duration of decompensation. The ALJ also looked to
the Mental Residual Functional Capacity Assessment completed by Dr. Fleece. The ALJ noted that
Dr. Fleece determined that the claimant had to ability to understand a recall simple workplace duties
and procedures; execute simple commands without difficulty; concentrate for two-hour periods with
routine breaks; work an eight-hour workday; ask for some supervisory flexibility; be competitive in
the workplace; show some irritable and anxious signs if in close proximity to others; miss a day of
routine duties each month because of her impairments; have no contact with the general public; take
and use direct, non-confrontational supervision; and adapt to workplace changes so long as the
changes are simple, gradual, or well-explained. The ALJ stated that Dr. Fleece found the claimant
not to be disabled. (R. 22).
The ALJ subsequently found that, based on the vocational expert’s testimony, the claimant
was unable to perform any past relevant work, and no transferable skills existed within the limited
light residual functional capacity. The ALJ determined that the claimant’s ability to perform light
work activity was impeded by her impairments, and asked the vocational expert if jobs existed in the
national economy for the claimant, based on her age, education, work experience, and residual
functional capacity. Because the vocational expert testified that the claimant was capable of
performing the work of an inspector housekeeper, cleaner, or small parts assembler, the ALJ
concluded that the claimant was capable of making a successful transition to these jobs that exist in
significant numbers in the national economy. The ALJ ultimately determined that the claimant was
not disabled under the rules of the Social Security Act. (R. 23-24).
The ALJ committed reversible error when he failed to mention or afford any weight
to Dr. Torabi, the claimant’s long-term treating physician who had contrary opinions
and medical evidence regarding the claimant’s alleged seizures.2
The ALJ must make clear the weight accorded to each item of evidence and the reasons for
the decision so that the reviewing court may determine whether the decision is based on substantial
evidence. The failure to specifically articulate that weight is a reversible error. Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir. 1981); see also Sharfarz v. Bowen, 825 F.2d 278, 279.
The law in this circuit is well established that the Commissioner must accord the opinions
of the treating physician with substantial or considerable weight. Lamb v. Bowen, 847 F.2d 698, 703
(11th Cir. 1988). Absent a showing of good cause to the contrary, the commissioner cannot discount
the treating physician’s opinions. Id. “Good cause” is a fairly broad standard and the Eleventh
Circuit has recognized its existence in at least three sets of circumstances. The first circumstance
exists where the opinion of the treating physician is accompanied by no objective medical evidence,
is wholly conclusory, or is contradicted by the physician’s own treatment notes. Edwards v.
The court notes that the claimant mistakenly refers to these seizures as strokes in her
testimony. However, the medical evidence as a whole suggests that these incidents were actually
seizures, and the claimant, as a layperson, was most likely just confused about the medical
Sullivan, 937 F.2d 580, 583 (1991); see also Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (2004).
The second circumstance exists where the “treating physician’s opinion was not bolstered by the
evidence.” Phillips, 357 F.3d at 1241. Finally, the ALJ can find good cause to discount the treating
source opinion where the “evidence supported a contrary finding” from that of the treating source.
Id.; see also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Sharfarz v. Bowen, 825 F.2d
278, 280 (11th Cir. 1987) (“ALJ may reject any medical opinion if the evidence supports a contrary
finding”); Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984).
However, where medical evidence does not conclusively counter the treating physician’s
opinion, and no other good cause is presented, the Commissioner cannot discount the treating
doctor’s opinion. Schnorr v. Bowen, 816 F.2d 578 (11th Cir. 1986). If the ALJ decides to discount
the opinion of the treating physician, he must “clearly articulate” his reasons for doing so. Phillips
v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004).
In this case, the ALJ did not articulate the weight given, if any, to the claimant’s treating
physician, Dr. Torabi. Although the ALJ stated that he “considered all medical evidence of record
and the opinions of the treating and examining physicians,” the ALJ never specifically considered
or articulated the weight given to the claimant’s major treating physician. Dr. Torabi treated the
claimant from November, 2008 through October, 2009, mostly for her headaches. The statements
and medical opinions made by this treating physician should have been specifically mentioned and
afforded weight, especially because of the duration of the treatment, and to neither mention nor
discredit Dr. Torabi was a reversible error.
Dr. Torabi’s opinions provide important evidence that contradicts the ALJ’s statements
regarding the claimant’s possible strokes or seizures. The ALJ particularly stated that no evidence
existed to support the claimant’s alleged strokes or seizures, but on July 28, 2009, Dr. Torabi noted
that the claimant had “one episode of possible seizure back in June.” Dr. Torabi subsequently
prescribed the claimant seizure medication to take regularly, twice a day. (R. 626). Furthermore, on
October 16, 2009, Dr. Torabi noted that the claimant had an abnormal EEG that suggested “complex
partial seizure,” and he refilled the claimant’s seizure medication. (R. 625).
The relevant legal standard requires the ALJ to clearly state the weight given to medical
opinions and the reasons for doing so; however, the ALJ never even mentions Dr. Torabi’s name in
the opinion or discusses this contrary finding regarding the claimant’s seizures.
Dr. Torabi’s progress notes and impressions also contain important information about the
claimant’s daily limitations, medications, and frequent headache pain, each of which the ALJ
claimed to be a factor he considered, but the ALJ never mentioned Dr. Torabi’s relevant opinions.
For instance, on January 29, 2009, Dr. Torabi noted that the claimant had just lost her job because
of concentration problems and headaches, and had already missed multiple days at her new job. (R.
300). Additionally, upon his initial visit with the claimant, Dr. Torabi remarked in his notes that the
claimant “basically has tried almost all of the medications that we know for migraines,” and
throughout his treatment with the claimant, he tried over thirty different medications, many of which
were for headaches, to easy the claimant’s pain and symptoms. (R. 288-89, 302, 303, 306, 307, 62528, 631). Also, within only eleven months, Dr. Torabi saw the claimant ten times, each time
primarily she complained of continuing headaches, anxiety, and depression. These visits are in
addition to treatments at Patient First Healthcare, Stringfellow Memorial Hospital, Regional Medical
Center, and Jacksonville Medical Center during the same year.
The ALJ committed a reversible error by not articulating the weight he gave to Dr. Torabi’s
contrary opinions about the claimant’s seizures and his long-term treatment of the claimant in
general. Because the ALJ failed to articulate and give reasons for according apparently no weight
to Dr. Torabi, and instead gave substantial weight only to the State agency examining physicians,
the court reverses the Commissioner’s decision.
Once the ALJ accords sufficient weight to the claimant’s treating physicians, the court may
be better able to understand why the ALJ discredited the claimant’s subjective pain testimony. For
instance, the ALJ stated a list of factors he considered in evaluating the claimant’s subjective
testimony about her pain and symptoms including, among other things, the claimant’s daily
activities, the duration and frequency of her symptoms, and her medications and treatments. (R.18).
In his assessment, however, the ALJ did not mention the medical opinions or even the names of the
claimant’s treating physicians, such as Dr. Rothrock, Dr. Gehi, Dr. Keel, or Dr. Yates. All of these
physicians treated the claimant multiple times, and, although their opinions are not necessarily
contrary to the ALJ’s decision, the ALJ should have afforded them weight in determining the
claimant’s credibility. Instead, the ALJ simply recited a brief history of a portion of the claimant’s
medical record and concluded that the “record does not support a finding of disability.” (R. 18-20).
Because the ALJ vaguely stated that he considered all of the opinions of the claimant’s treating
physicians but failed to articulate why he gave no weight to the treating physicians whose medical
opinions relate specifically to his list of factors, the ALJ’s opinion did not meet the standard of
specifically articulating the weight given to treating physicians. Based on the ALJ’s decision, the
court is unclear as to the grounds upon which the ALJ discredited the claimant’s subjective
testimony that comports with much of the medical records of the treating physicians.
For the above reasons, the court finds that the ALJ failed to articulate the weight given to the
claimant’s treating physicians and, therefore, committed reversible error. Accordingly, substantial
evidence does not support his decision. Therefore, the court will reverse the Commissioner’s
decision and will remand it for the ALJ to determine whether the claimant is entitled to Disability
Insurance Benefits or Supplemental Security Income Payments.
The court will enter a separate Order in conformity with this Memorandum Opinion.
DONE and ORDERED this 25th day of April, 2013.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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