Weatherington v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/24/13. (SAC )
2013 Sep-24 PM 03:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE
On November 21, 2008, the claimant Kimberly Newman Weatherington applied for a
period of disability and disability insurance benefits under Title II of the Social Security Act and
supplemental security income under Title XVI of the Social Security Act. (R. 130, 137). The
claimant alleged disability beginning on October 2, 2008, because of mental and emotional
disorders. (R. 130, 190). The Commissioner denied the claim on February 2, 2009. The claimant
filed a timely request for a hearing before an Administrative Law Judge, and the ALJ held a
hearing on September 23, 2010. In a decision dated October 7, 2010, the ALJ found that the
claimant was not disabled as defined by the Social Security Act and thus was ineligible for
disability and disability benefits and supplemental security income. (R. 24). The claimant filed a
timely request for review of that decision to the Appeals Council on October 22, 2010. On May
4, 2012, the Appeals Council granted the claimant’s request for review and issued a decision
denying the claimant’s application for disability and disability benefits and supplemental income.
(R. 6). The Appeals Council adopted all of the ALJ’s conclusions but disagreed with the ALJ’s
finding regarding the claimant’s ability to perform her past relevant work. (R. 5). As a result, the
decision of the Appeals Council became the final decision of the Commissioner of the Social
Security Administration. (R. 4-7). The claimant has exhausted her administrative remedies, and
this court has jurisdiction pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). For the reasons
stated below, this court affirms the decision of the Commissioner.
II. ISSUES PRESENTED
The claimant presents the following issues for review: (1) whether the ALJ provided a
proper credibility finding for the claimant’s subjective complaints; and (2) whether the Appeals
Council erred in adopting the ALJ’s finding regarding the claimant’s disability.
III. STANDARD OF REVIEW
The standard for reviewing 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. Brown, 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 evaluation 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 entirely and take into account any evidence that detracts from the evidence relied on
by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (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 as lasted or can
be expected to last for a continuous period of not less than 12 months.” To make this
determination, the Commissioner employs a five-step, sequential evaluation process:
Is the claimant presently unemployed?
Is the claimant’s impairment severe?
Does the claimant’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
Is the claimant unable to perform his or her former occupation?
Is the claimant unable to perform any other work within the national
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.
When evaluating pain and other subjective complaints, the Commissioner must consider
whether the claimant demonstrated an underlying medical condition, and either (1) objective
medical evidence that confirms the severity of the alleged symptoms 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 symptom. Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); 20 C.F.R.
§404.1529. A claimant’s subjective testimony supported by medical evidence is itself sufficient
to support a finding of disability. Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1992). The ALJ
must articulate reasons for discrediting the claimant’s subjective testimony. Brown v. Sullivan,
921 F.2d.1233, 1236 (11th Cir. 1991). If the ALJ does not articulate his reasons for discrediting
the claimant’s testimony, then the court must accept that testimony as true. Id.
Next, if the claimant has a severe impairment that does not equal or meet the severity of a
listed impairment, the examiner proceeds to the fourth step and assesses the claimant’s residual
functional capacity (RFC). This assessment measures whether a claimant can perform past
relevant work despite his or her impairment. 20 C.F.R. §404.1520(f); Crayton v. Callahan, 120
F.3d 1217, 1219 (11th Cir. 1997).
To support a conclusion that the claimant can to return to her past relevant work, the ALJ
must consider all the duties of that work and evaluate the claimant’s ability to perform them in
spite of her impairments. Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th Cir. 1990); see also
Cannon v. Bowen, 858 F.2d 1541, 1545-46 (11th Cir. 1988) (remanding to the Commissioner to
determine whether claimant’s past work included prohibited activities). Where the record is
inconclusive as to the claimant’s residual functional capacity, however, the record must be
further developed through vocational expert testimony. Holladay v. Bowen, 848 F.2d 1206, 1210
(11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131-32 (11th Cir. 1986). The ALJ must
consider whether the claimant held the job within the past fifteen years; whether the job counts as
substantial gainful activity; and whether the claimant learned to do the work. 20 C.F.R. §
416.960(b)(1). The claimant has the burden to produce evidence in support of her claim. Ellison
v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2007). Also, the claimant must prove that she
cannot perform her past relevant work. Jackson v. Bowen, 801 F.2d 1291, 1293 (11th Cir. 1986).
The claimant has a high school education and was thirty-one years old at the time of the
hearing. (R. 183, 48). She has past work experience as a patient care tech and welder. (R. 191).
The claimant alleges that she was disabled by mental and emotional disorders beginning on
October 2, 2008. (R. 190).
On February 8, 2005, the claimant sought treatment at Eastside Mental Health Center for
depression and anxiety. (R. 373). The claimant reported panic attacks and serious suicidal
thoughts. The claimant also reported that she had a history of depression, that she had previously
suffered a drug overdose, and that she self-medicated with marijuana. Medical personnel
documented that the claimant worked as a welder up to ten hours a day and attended school at
night. Medical personnel documented that the claimant allegedly did not sleep as a result of her
mental conditions. (R. 377). Therapist Nancy Mitchell scheduled an appointment for the claimant
with Dr. Stone, an Eastside Mental Health physician, for March 28, 2005. Dr. Stone diagnosed
the claimant with bipolar I, ADHD, and anxiety. (R. 372).1
The record contains no record of the claimants visit with Dr. Stone in the record.
However, the claimant’s progress note in March 2008 indicates that Dr. Stone diagnosed the
claimant with these conditions. (R. 372).
On June 9, 2006, Trinity Medical Center emergency medical staff evaluated the claimant
in the emergency room. The claimant arrived via paramedics and reported that she attempted
suicide from an overdose of her anxiety medicine and narcotics. (R. 326). Dr. David S. Harvey,
M.D., conducted a mental status exam, and the claimant denied suicidal or homicidal ideations.
Dr. Harvey discharged the claimant with no additional medication and instructed her to follow up
with East Side Mental Health Center. (R. 324).
On February 28, 2008, medical personnel at Eastside Mental Health Center conducted a
mental evaluation of the claimant and found that the claimant demonstrated appropriate
appearance; cooperative demeanor; normal speech; motor function within normal limits;
euthymic mood; full range-mood congruent affect; anxiety; and goal directed thought process.
(R. 255). Medical personnel found the claimant’s symptoms to be mild-moderate, but noted that
the claimant did not comply with previous treatment recommendations. Medical personnel
assigned the claimant a diagnostic impression of bipolar II, cannabis abuse, and a GAF score of
On March 31, 2008, the claimant sought outpatient treatment for depression and anxiety
from Eastside Mental Health Center after two years of absence. (R. 372). Dr. Romaine Hain,
M.D. assessed the claimant and documented her condition as bipolar I, ADHD, and S/P BTL.
The claimant continued to receive outpatient therapy from Eastside Medical Center on March 31,
2008; July 2, 2008; September 11, 2008; November 10, 2008; January 7, 2009; April 10, 2009;
and June 3, 2009. (R. 366-372). During these visits, the claimant reported a history of depression
but also stated that she wanted to be able to control her feelings and pursue a career. (R. 282,
291). The claimant continued to take carbamazepine, lithium carb, alprazolam, propanalol,
trazadone, and buspirone for depression and anxiety. (R. 366-372).
On October 16, 2008, Dr. Ross M. Vander Noot, treated the claimant in the emergency
room for mood swings and headaches. Dr. Vander Noot noted a history of depression. Dr.
Vander Noot also noted that the claimant stated she was taken off depokote, and placed on
lithium, which the claimant believed to be the cause of her complaint. Dr. Vander Noot noted
that the claimant was goal directed during the visit and also articulated that “perhaps what [the
claimant] is really looking for is for someone to put her back on her depakote and this may in fact
be a bargaining technique.” (R. 320).
On November 10, 2008, the claimant reported to Dr. Hain that her mood was “more
even” since her last emergency room visit. (R. 332). Dr. Hain noted that the claimant was nonpsychotic and non-suicidal during the visit.
On December 10, 2008, Dr. Rusheng Zhang, M.D. treated the claimant as a psychiatric
inpatient for recurrent bipolar disorder, depression with psychotic feature, and reported suicidal
ideation with a plan to overdose. The claimant reported that the loss of her job and financial
difficulties caused the suicidal episode. Dr. Zhang ordered an MRI of the claimant which showed
normal results. (R. 345). After a two day stay, Dr. Zhang noted that the patient improved and
discharged the patient, at her request, with a plan for the claimant to continue her outpatient
therapy. (R. 347-48). At the next outpatient visit on June 3, 2009, Dr. Hain, her psychiatric
treating physician, noted that the claimant reported that her mood and anxiety had both improved.
The claimant did not attend or canceled her individual outpatient therapy sessions on
August 3, 2009; November 10, 2009; November 12, 2009; and December 10, 2009. The
claimant, however, attended therapy sessions on January 14, 2010, and February 17, 2010. (R.
On January 22, 2009, Dr. Carol Walker, a consulting neuropsychologist, met with the
claimant and evaluated the claimant’s condition. Dr. Walker diagnosed the claimant with bipolar
disorder type II and cannabis use. Dr. Walker noted that the claimant had a history of depression
and used cannabis once a week beginning at the age of twelve. (R. 356). Dr. Walker found,
however, that the claimant’s sensory skills, gait, balance, and coordination were unimpaired. Dr.
Walker also concluded that the claimant’s cognitive skills were estimated to fall in the average
range; noted that the claimant’s capacity to understand and follow instructions and receive
supervision were also unimpaired; that there was no evidence of mental slowing; and that the
claimant exhibited appropriate social skills during the evaluation. Dr. Walker found that the
claimant’s mental impairment was moderate in severity, and was partially controlled with
medication. (R. 358).
Dr. Walker also noted that the claimant last worked on October 25, 2008, and was fired
for being late and making errors. Dr. Walker also noted that the claimant’s speech was fluent and
well articulated. Dr. Walker indicated that the claimant stated she was independent with her
activities of daily living including household tasks; she was unable to cook, but prepares frozen
food for her family; and that her social interaction is limited to talking on the phone, visiting with
her sister, and engaging in family activities.
On January 30, 2009, Dr. Guendalina Ravello, Ph.D., completed a mental residual
functional capacity assessment. Dr. Ravello found that the claimant was not markedly limited in
any category; that the claimant had no significant limitations with her understanding and
memory; and that her adaptation to changes in work setting should be presented gradually and
infrequently to give time for adjustment. Dr. Ravello also found that the claimant was able to
concentrate and attend to simple tasks for two hours and would need all customary rests and
breaks; that the claimant worked best in a well-spaced environment with a few familiar coworkers to minimize stress and distractions, but that she could tolerate ordinary work pressures;
and that the claimant should avoid excessive workloads, quick decision making, rapid changes
and multiple demands. Dr. Ravello also concluded that the claimant’s contact with the public and
co-workers should be casual and that feedback towards the claimant should be supportive,
tactful, and non-confrontational. (R. 302). Ultimately, Dr. Ravello’s medical summary
determined the claimant had an affective disorder and a substance addiction disorder. (R. 304).
On February 2, 2009, Dr. Robert H. Heilpern, M.D. reviewed the objective medical
evidence and completed a physical summary. The claimant’s record indicated that she reported
that she had tremors, headaches, and shakes. Dr. Heilpern noted that the claimant noted no other
physical problems beyond those associated with tremors. (R. 318). Dr. Heilpern also noted that
during her 2008 hospital stay, Dr. Zhang documented that she had no tremors or shakes during
the physical exam. Further, Dr. Heilpern noted that the claimant’s MRI showed no sensory
deficits. (R. 318). Lastly, Dr. Heilpern concluded that the claimant was partially credible and that
her headaches were not severe.
On March 11, 2010, Dr. Armand Schachter, M.D., admitted the claimant for depression
and suicidal overdose of lithium. (R. 258). The claimant received psychiatric treatment and
services, and Dr. Schachter transferred the claimant to psychiatric services under the care of Dr.
Harvey. (R. 271). After three days, the claimant checked herself out against medical advice. (R.
On April 1, 2010, Eastside Mental Health Center developed a new outpatient treatment
plan for the claimant. Licensed Mental Health Professional Judy Moore noted that the claimant
had not been compliant with her therapy sessions but noted that the claimant wanted to comply
with her medications and appointments. Ms. Moore documented that the claimant had recently
relapsed with an overdose of lithium; had goals to maintain consistency in her treatment plan and
to receive social security disability so that she could provide for her family; stated that she was
sexually abused as a child and had severe mood swings, crying spells, and low energy as a result
of her depression and anxiety; and that she had violent outbursts of damaging property,
hypersexual activity, extreme multi-tasking, and over-spending. (R.361).
The ALJ Hearing
The Commissioner denied the claimant’s application for disability and disability
insurance benefits on February 3, 2009. (R. 78). The claimant requested a hearing before an ALJ,
and the ALJ held the hearing on September 23, 2010. (R. 46).
The claimant testified that her disability resulted from emotional and psychological
problems. The claimant stated that she was not currently working because of medical issues and
doctors’ appointments related to her emotional and psychological problems. The claimant
testified that her therapist was Nancy Mitchell and that her treating physician was Dr. Hain. (R.
The claimant stated that she was hospitalized in 2008 because of a manic state that was a
result of a new drug combination. The claimant testified that she jumped out of a car and had a
lot of rage. The claimant stated that the main problems that prevented her from working were
bipolar disorder, uncontrollable moods from manic depression, and anxiety. (R. 49-50). The
claimant stated that she has never felt regulated for more than two or three months at a time and
that she goes up and down on a daily basis.
The claimant also testified that she did not comply with her prescribed medication plan
because she felt sleepy or lethargic and could not “operate.” (R. 51). The claimant stated that the
reasons for her hospitalizations were because of suicide attempts or sheer confusion. The
claimant stated that her behavior is irrational and that she is a threat to herself.
The claimant reported that she had difficulty concentrating and staying focused. (R. 52).
The claimant testified that the lithium slowed down her change in mood and allowed her to
realize that her depression was worsening. (R. 53). The claimant stated that she attempted to
brace herself and make better decisions while she is in a manic state. The claimant testified that
her symptoms were crying a lot; thinking intensely about bad things; and having more suicidal
thoughts. The claimant testified that she did not think the lithium had any effect on her
depressive states but that it did slow them down and provided longer periods in between the
depressive and manic states. (R. 54).
The claimant next stated that she had visual hallucinations “all the time.” (R. 55). She
stated that she did not take anything to control her hallucinations but that she did not want to take
Haldol, a drug prescribed for hallucinations, because she had seen other patients on Haldol
appear to be “really, really, really out of it.” (R. 55). The claimant testified that she used
marijuana inconsistently but never had a drug addiction; that she self medicated with marijuana
in the past; and that she may have smoked once a week during the time she attended therapy. (R.
The claimant testified that she has three children, ages thirteen, eleven, and nine. The
claimant stated that she was involved at her children’s school, attended parent teacher association
meetings, chaperoned field trips, and did whatever the teacher may need her to do. (R. 64). The
claimant testified that she attended her children’s football games every Saturday morning.
The claimant stated that she tried to be extra attentive towards her children. She reported
that she naps for two hours a day as a side effect of her medication. The claimant stated that she
was nominated to be the president of her son’s little league team but resigned from the position
because she could not fulfill her duties. She stated that she could not deal with the people, the
sponsorship, or the organization regarding different responsibilities. She testified that she could
not stay focused or put appropriate tasks in order without making mistakes. (R. 59). The claimant
stated that she had a history of headaches that lasted up to four days. The claimant stated that
while a beta blocker had helped her in the past, it was too expensive for her to take and that the
lithium she took contradicted the beta blocker.
The claimant reported that she stopped taking depakote, despite helping control her
symptoms, because of side effects including what she referred to as “hormonal tremors.” (R. 61).
The claimant then stated that she also had a lot of problems trying to work while taking depakote
— problems with concentration, impulses, and mood swings. The claimant testified that
depakote gave her a “nice time of resting” where she “felt regulated,” but that she had occasional
The claimant stated that she lives with her mother and did not drive “much at all.” (R.
65). The claimant testified that she was looking for a job as a certified nursing assistant, medical
assistant, unit secretary, or unit clerk and that she lost her previous job because she was late due
The ALJ then examined Mr. Claude Peacock, the vocational expert. Mr. Peacock testified
that the claimant had previous work experience as a patient care tech, patient screener, and unit
clerk and that these jobs were classified as light and semi-skilled, sedentary and semi-skilled, and
light and semi-skilled, respectively.
The ALJ then asked Mr. Peacock if a hypothetical individual with the claimant’s same
age, education, and work history and with no exertional limitations could perform the claimant’s
prior work. The ALJ instructed Mr. Peacock to assume the following limitations for the
hypothetical individual: could attend to simple tasks for two-hour periods of time; would work
best in a well-spaced environment with a few familiar coworkers; could tolerate ordinary work
pressures; and would avoid excessive workloads, quick decision-making, rapid changes, and
multiple demands. Further, the ALJ instructed Mr. Peacock to assume that the hypothetical’s
contact with the public and co-workers would be casual; feedback would be supportive; and
changes in the work setting should be infrequent and gradually presented. Mr. Peacock stated that
he believed that the positions of a patient care tech and a patient screener were within that
criteria. (R. 67).
Mr. Peacock also testified that many other jobs were available based on a classification of
positions that are light and unskilled. Mr. Peacock provided as examples an electrical line worker
and wrapper tender. Mr. Peacock further testified that these positions existed in significant
numbers in both the national and state economy. (R. 68).
The claimant’s attorney then questioned Mr. Peacock about a hypothetical worker with
the same limitations as the ALJ discussed above. The claimant’s attorney provided the additional
limitations that the worker would be absent from work for two or more days a month due to
psychological symptoms, headaches, or side effects from medication, and would be unable to
maintain concentration, persistence, and pace for a two hour period during an eight hour day. Mr.
Peacock testified that these jobs would not permit such a requirement.
The ALJ Decision and the Appeals Council Decision
On October 7, 2010, the ALJ issued a decision finding that the claimant was not disabled
under Sections 216(i), 223(d) and 1614(a)(3)(A) of the Social Security Act and denied her
application for a period of disability and disability benefits and supplemental security income.
(R. 16). Before announcing his findings of fact, the ALJ described in great detail the five-step
sequential evaluation process that would be the basis of her analysis. (R. 17).
First, the ALJ found that the claimant met the insured status requirement of the Social
Security Act through March 31, 2010. The ALJ found that the claimant had engaged in no
gainful employment since October 2, 2008, the alleged onset date of her disability.
Next, the ALJ found that the claimant had a severe impairment of bipolar disorder.
Although the evidence supported a finding of the claimant’s impairment, the ALJ found that the
claimant’s disorder was not an impairment that met one of the listed impairments and was not
disabling. The ALJ noted that the claimant testified that she had occasional headaches but that no
treating physician or other medical source stated that the claimant’s headaches caused disability.
The ALJ concluded that the claimant’s mental impairment did not satisfy listing 12.04
“paragraph B” criteria, finding that the claimant has only a mild restriction in her activities of
daily living and was able to live independently and care for her three children. The ALJ noted
that the claimant had moderate difficulty functioning socially but that her consultative
examination indicated that she spoke on the phone with her family, visited her sister, and
engaged in family activities. The ALJ also noted that the claimant had moderate difficulty in
concentration, persistence or pace, and had anxiety in social situations. The ALJ found that the
claimant’s record indicated no significant, sustained loss of adaptive functioning. (R. 19).
Similarly, the ALJ evaluated the “paragraph C” criteria and found that the evidence failed
to establish the presence of such criteria because no evidence exists that established repeated
episodes of decompensation; propensity toward decompensation; need for a highly supportive
living arrangement; or inability to function independently outside of her home. (R. 19).
The ALJ then undertook a more detailed analysis to determine the claimant’s residual
functional capacity (RFC), and noted that the criteria identified in paragraphs B and C above
require a lesser assessment. The ALJ found that the claimant had a RFC to perform a full range
of work at all exertional levels with the following limitations: can concentrate and attend to
simple tasks for two hour periods of time; will work best in a well-spaced environment with a
few familiar coworkers; can tolerate ordinary work pressures and demands; should have casual
contact with the public and co-workers; should receive supportive feedback; and changes in the
work setting should be infrequent and presented gradually.
In making the finding, the ALJ considered all symptoms and the extent to which objective
medical evidence and opinion evidence supported those symptoms. The ALJ noted that the
claimant’s testimony that related to ups and downs was not supported by evidence in the record.
Further, the ALJ noted that the claimant stated that her medication slows down the process and
allows her to realize that a manic or depressive episode is coming. The ALJ also considered that
the claimant chose not to take medication for her hallucinations, had not been compliant with her
medication when she was hospitalized in 2008, and self medicated with marijuana.
The ALJ articulated that when the claimant was initially treated at Eastside Mental Health
Center earlier in 2008, the claimant exhibited appropriate appearance; cooperative demeanor;
normal speech; a euthymic mood; full range-mood congruent affect; anxiety; goal directed
thought process; and motor function within normal limits. The ALJ noted that the claimant’s
symptoms were classified as mild to moderate and that she was non-compliant with treatment.
The ALJ noted that after a few months of treatment, the claimant reported that her moods were
more stable, her racing thoughts were better, and that her concentration and anxiety had
improved. Lastly, when hospitalized for a suicide attempt, the claimant requested to go home
because she reportedly felt better and denied being suicidal. (R. 21).
The ALJ next articulated that in January 2009, Dr. Hain noted that the claimant had been
hospitalized for suicidal ideations but that the claimant reported no longer feeling depressed and
being less stressed. Also, the ALJ documented that the claimant underwent a consultative
examination during that time. The claimant exhibited no signs of sleep deprivation despite
reporting that she was getting very little sleep. The ALJ noted that Dr. Walker found that the
claimant was fully oriented; had well-maintained attention and concentration; had no observed
deficits in memory; had knowledge estimated to fall in the average range; had abstract
unimpaired thoughts; had logical and goal directed thought processes; had no symptoms of
perceptual distortions or thought disorder; and had good judgment and insight. (R. 21).
Next, the ALJ noted that the claimant stated that she was independent in all of her
activities of daily living and household tasks and that she cared for her three children, prepared
frozen meals, helped them with homework and got them ready for bed. The ALJ considered that
Dr. Walker noted that the claimant’s symptoms appeared to be partially controlled with
medication and that treatment in the past led to an improvement in her conditions over periods of
time. Lastly, the ALJ noted that Dr. Walker concluded that the claimant’s mental impairment was
moderate in severity. (R.21).
The ALJ next considered that in April 2009, Dr. Hain noted that the claimant was back on
her medication with a stable mood and that the claimant reported her medications were well
tolerated. The ALJ noted that the claimant’s symptoms improved after she took her medications
regularly for a week in June of 2009. The ALJ also noted that the claimant failed to show up for
her therapy session in August 2009 and later that month reported mild symptoms of depression.
Again, the ALJ noted that the claimant had been noncompliant with her medication. However,
the ALJ documented that the claimant indicated that she was trying to be more compliant with
her medications, but again did not attend her therapy appointments in November and December
The ALJ then considered that the claimant returned to Eastside Mental Health Center in
January 2010 and underwent group therapy and individual therapy in February 2010. Again, the
ALJ documented that the claimant reported being noncompliant with her medications and also
reported that she had not seen Dr. Hain in almost one year. The ALJ noted that the claimant was
again hospitalized in March 2010 for suicidal thoughts, and afterwards sought treatment again at
Eastside Mental Health Center. The ALJ found that the therapist not only noted that the claimant
had been non-compliant for the last several months but also that the claimant checked herself out
against medical advice after three days. The ALJ also noted that the claimant complained of
mood swings, violent spurs, and hallucinations since being non-compliant.
The ALJ discounted the claimant’s statements concerning intensity, persistence, and
limiting effects of those symptoms. The ALJ concluded that, although the claimant’s medically
determinable impairment could reasonably be expected to cause the alleged symptoms, her
statements were not credible to the extent that they were inconsistent with the claimant’s RFC
assessment and objective medical evidence. The ALJ noted that contrary to the claimant’s
testimony, her moods and symptoms were under fair control when she was compliant with her
medication. Further, the ALJ noted that the claimant had reported that her mood was good and
more stable with improved symptoms as long as she was taking her medication regularly. The
ALJ found that the claimant’s failure to take her medicine caused the most recent hospitalization.
The ALJ concluded that the claimant may have some mild to moderate limitations due to her
bipolar disorder and that those limitations are fully accounted for in the claimant’s RFC.
The ALJ gave significant weight to the opinion of the state agency psychological
consultant, Dr. Guendalina Ravello, Ph.D. The ALJ noted that, although Dr. Ravello did not
examine the claimant, she provided specific reasons for her opinion about the claimant’s mental
functioning and supported her reasons with evidence in the record. The ALJ also noted that Dr.
Ravello’s opinion was internally consistent with the objective medical evidence as a whole.
Lastly, the ALJ considered that Dr. Ravello was familiar with the disability program of the Social
Security Administration and that she has a good understanding of the requirements that must be
met to establish disability.
The ALJ next gave significant weight to the opinion of the state agency medical
consultant, Dr. Robert H. Heilpern, M.D., emphasizing that his opinion was consistent with the
medical evidence in the record as well as the evidence as a whole.
Next, the ALJ gave substantial weight to the consultative examiner, Dr. Carol Walker,
Ph.D. The ALJ noted that Dr. Walker directly observed and examined the claimant; reviewed the
claimant’s entire medical and psychological history; and had a significant basis for her
determinations. The ALJ also found that Dr. Walker’s findings were consistent with the evidence
as a whole; they were objectively determined; they were uncontradicted by other evidence; and
thus, were entitled to substantial weight. However, the ALJ concluded that the claimant was
slightly more limited than determined by Dr. Walker.
The ALJ then found that the claimant was capable of performing her past relevant work
as a patient care technician and a patient screener. The ALJ concluded that these positions do not
require performance of work-related activities that are precluded by the claimant’s RFC. The
ALJ compared the claimant’s RFC with the physical and emotional demands of this work and
concluded that the claimant could perform this work as actually and generally performed. The
ALJ also noted that the vocational expert affirmatively responded to the question about whether
the claimant could perform the work with her RFC.
On May 4, 2012, the Appeals Council for the Social Security Administration issued a
decision after review of the ALJ’s determination. The Appeals Council adopted the ALJ’s
findings regarding the provisions of the Social Security Act; Social Security Administration
Regulations; Social Security Rulings and Acquiescence Rulings; the issues in the case; and the
evidentiary facts. The Appeals Council also adopted the findings and conclusions regarding
whether the claimant was disabled.
However, while the Appeals Council agreed with steps 1, 2, and 3 of the ALJ’s sequential
evaluation, it did not agree with the ALJ’s finding that the claimant is capable of performing her
past relevant work. The Appeals Council found the claimant’s past relevant work to be at a
higher skill level than the claimant’s RFC and also found that it was unclear whether the claimant
ever performed this work at the substantial gainful activity level. The Appeals Council reasoned
that the claimant’s prior work was at a semi-skilled level but the claimant’s RFC is for unskilled,
light work. Further, the Appeals Council noted that the claimant’s earnings record indicated that
she had not worked at the substantial gainful activity level on a yearly basis, which made unclear
whether these jobs qualified as the claimant’s past relevant work.
The Appeals Council then stated that because the claimant could not perform her past
relevant work, the Commissioner had the burden to show that other jobs exist in significant
numbers in the national economy that the claimant can perform given her RFC, age, education,
and work experience. The Appeals Council found that given the claimant’s limitation criteria as
provided by the ALJ, the vocational expert testified that two light and unskilled jobs exist that do
not conflict with the claimant’s RFC: electrical equipment assembler and wrapper tender. In
reliance on the testimony of vocational expert, the Appeals Council concluded that the claimant
had not been disabled as defined in the Social Security Act at any time through October 7, 2010.
1. The ALJ properly discounted the credibility of the claimant’s subjective testimony
The claimant alleges that the ALJ failed to provide a proper credibility finding as required
by Social Security Ruling 96-7p. This court finds that the ALJ properly discounted the
claimant’s subjective testimony by referring to objective medical evidence that is contrary to the
claimant’s alleged symptoms.
When a claimant attempts to establish her disability through testimony of subjective
symptoms, the Eleventh Circuit pain standard applies. The pain standard requires a showing of:
(1) evidence of an underlying medical condition; and either
(2) objective medical evidence that confirms the severity of the alleged symptom arising
from the condition or
(3) that the objectively determined medical condition is of such severity that it can be
reasonably expected to give rise to the alleged pain or symptom.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (emphasis added); see also Holt, 921
F.2d at 1223. Pain and other symptoms alone can be disabling, and in some circumstances a
claimant’s subjective testimony, supported by medical evidence that satisfies the standard, can be
sufficient to support a finding of disability. Foote, 67 F.3d at 1561. The ALJ is not required to
recite the standard verbatim, but must make findings consistent with a correct application of the
standard. See Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). When the ALJ decides
to discredit the claimant’s testimony of symptoms, he must do so explicitly, and with adequate
In his decision, the ALJ correctly applied the Eleventh Circuit’s standard to the facts in
this case. The ALJ found that the claimant did have medically determinable impairments that
could reasonably be expected to cause the claimant’s symptoms. The ALJ, however, properly
discredited the claimant’s personal testimony as being against the great weight of medical
evidence in the record. Although the claimant identified bipolar disorder as her disabling
condition, the ALJ articulated that the claimant’s records reflect that her moods and symptoms
improve when she is compliant with her prescribed medications. The ALJ further noted that the
claimant displayed symptoms that were classified as mild to moderate when evaluated at Eastside
Mental Health Center. The ALJ noted that the claimant’s consultative examination did not
exhibit behavioral evidence of sleep deprivation, and moreover, exhibited that the claimant was
fully oriented with logical and goal-directed thought processes. The ALJ noted that no evidence
of perceptual distortions or thought disorder exists, and that the claimant’s judgment and insight
The ALJ referred to the claimant’s activities of daily living and noted that the claimant
acknowledged that she was independent with household tasks. The ALJ found that the claimant
was able to care for her three children; prepare meals for her children; help her children with her
homework; and bathe and put her children to bed.
Identifying specific portions of the medical record, the ALJ also found that Dr. Walker
noted that the claimant’s symptoms were partially controlled with medication and that treatment
in the past led to an improvement in her condition over periods of time. The ALJ properly
articulated explicit, adequate reasons to discredit the claimant’s subjective testimony. Also, the
ALJ properly discredited the claimant’s testimony by weighing both the medical findings of the
state psychological consultant, the state agency medical consultant, and the consultative
examiner, against her personal testimony. Thus, the ALJ correctly applied the Eleventh Circuit’s
standard, and substantial evidence supports his findings.
2. ALJ’s past relevant work determination
Next, the claimant argues that the ALJ failed to consider the mental demands of the
claimant’s past relevant work as required. Past relevant work is any job that the claimant held
within the past fifteen years that generated substantial gainful activity and that the claimant
learned to do. 20 C.F.R. § 416.960(b)(1). The claimant has the burden to produce evidence to
support her claim and specifically bears the burden to prove that she cannot perform her past
relevant work. Ellison, 355 F.3d at 1276; Jackson, 801 F.2d at 1293. Once a claimant has
established that she has no past relevant work or cannot perform her past relevant work because
of her impairment, the burden of proof shifts to the Commissioner to show that other jobs exist in
significant numbers in the national economy that the claimant can perform.
The Commissioner concedes that the ALJ erroneously stated in his decision that the
claimant could perform her past relevant work. The court notes that the ALJ determined that the
claimant was able to perform past relevant work, and the Appeals Council reviewed the decision
and disagreed. However, despite the ALJ’s conclusion regarding the claimant’s past relevant
work, the Appeals Council adopted the ALJ’s finding as to the claimant’s disability. The Appeals
Council based its decision on the vocational expert, Mr. Peacock’s, testimony that the claimant
could perform other unskilled and light positions given her limitations. Thus, the Commissioner
satisfied the burden of showing that other jobs exist that the claimant can perform. The court
finds that the Appeals Council correctly relied on the vocational expert’s testimony in accordance
with the proper legal standard.
For the reasons stated, this court finds that the decision of the Commissioner is supported
by substantial evidence and is to be AFFIRMED. The court simultaneously will enter a separate
Order to that effect.
DONE and ORDERED this 24th day of September, 2013.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?