Davis v. Social Security Administration, Commissioner

Filing 8

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 11/18/2013. (JLC)

FILED
2013 Nov-18 PM 03:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TAVARES JIMMEH DAVIS,

)
)
Plaintiff,
)
)
v.
) Case No.: 2:12-CV-2867-VEH
)
CAROLYN W. COLVIN,
)
ACTING COMMISSIONER,
)
S O C I A L
S E C U R I T Y )
ADMINISTRATION,
)
)
Defendant.
)

MEMORANDUM OPINION1
Plaintiff Tavares Jimmeh Davis (“Mr. Davis”) brings this action under 42
U.S.C. § 405(g), § 205(g) of the Social Security Act. He seeks review of a final
adverse decision of the Commissioner of the Social Security Administration
1

The court notes that, on February 14, 2013, Carolyn W. Colvin was named the Acting
Commissioner of the Social Security Administration. See
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.”). Under 42 U.S.C. § 405(g), “[a]ny
action instituted in accordance with this subsection shall survive notwithstanding any change in the
person occupying the officer of Commissioner of Social Security or any vacancy in such office.”
Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil Procedure,
the court has substituted Carolyn W. Colvin for Michael Astrue in the case caption above and
HEREBY DIRECTS the clerk to do the same party substitution on CM/ECF.

(“Commissioner”), who denied his applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”).2 Mr. Davis timely pursued and
exhausted his administrative remedies available before the Commissioner. The case
is thus ripe for review under 42 U.S.C. § 405(g).3
FACTUAL AND PROCEDURAL HISTORY
Mr. Davis was twenty-five years old at the time of the onset of his alleged
disability on September 13, 2008, and was twenty-seven years old at the time of his
hearing before the Administrative Law Judge (“ALJ”). (Tr. 22). He has an
occupational high school diploma, with some special education classes taken mostly
in math. (Tr. 50).

Mr. Davis’s past work experience includes service station

attendant, auto parts clerk, and hand packager. (Tr. 69). He claims he became
disabled on September 13, 2008, due to attention deficit disorder (ADD).4 (Pl.’s Br.
1-2).
On October 27, 2008, Mr. Davis protectively filed applications for DIB and
2

In general, the legal standards applied are the same regardless of whether a claimant seeks
DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims.
Therefore, citations in this opinion should be considered to refer to the appropriate parallel provision
as context dictates. The same applies to citations of statutes or regulations found in quoted court
decisions.
3

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
4

Claimant originally claimed ADD as his only disability; however, the ALJ used Dr.
Markert’s diagnosis of history of attention deficit hyperactivity disorder (ADHD).
2

SSI. (Tr. 76). On December 16, 2008, the Commissioner initially denied the claim.
(Tr. 78). Mr. Davis timely filed a written request for a hearing on January 15, 2009.
(Tr. 90). The ALJ conducted a hearing on the matter on July 21, 2010. (Tr. 42). On
August 26, 2010, the ALJ issued his opinion concluding that Mr. Davis was not
disabled and denied him benefits. (Tr. 16). Mr. Davis timely petitioned the Appeals
Council ("AC") to review the decision on September 27, 2010 (Tr. 14), and on June
29, 2012, the Appeals Council issued a denial of review on his claim. (Tr. 1).
Mr. Davis filed a Complaint with this court on September 12, 2012 seeking
review of the Commissioner’s determination. (Doc. 1). The parties having fully
briefed the matter, the court has carefully considered the parties’ arguments and the
record, and, for the reasons stated below, affirms the Commissioner’s denial of
benefits.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
3

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145–46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.5 The Regulations define “disabled” as
“the inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death

5

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499, current through July 11, 2013.
4

or which has lasted or can be expected to last for a continuous period of not less than
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i–v). The Commissioner must determine in
sequence:
(1) whether the claimant is currently employed;
(2) whether the claimant has a severe impairment;
(3) whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];
(4) whether the claimant can perform his or her past work; and
(5) whether the claimant is capable of performing any work in the
national economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561,
562–63 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.
1986). The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will automatically be
found disabled if she suffers from a listed impairment. If the claimant does not
have a listed impairment but cannot perform her work, the burden shifts to the
5

[Commissioner] to show that the claimant can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After consideration of the entire record, the ALJ made the following findings
of fact and conclusions of law:
1.
The claimant filed applications for a period of disability, disability
insurance benefits, and supplemental security income on October 27,
2008, in which he alleged that he became disabled on September 13,
2008. (Tr. 31). He last has disability insured status on September 30,
2014.
2.
There is no evidence that the claimant has performed substantial
gainful activity since September 13, 2008.
3.
The claimant has the “severe” impairments of mood disorder and
history of attention deficit hyperactivity disorder. He does not have an
impairment, or combination of impairments, which meets or equals the
criteria of an impairment listed in Appendix 1, Subpart P, 20 C.F.R. Part
404.
4.
The evidence as a whole fails to confirm disabling limitations
arising from the claimant’s impairments, and his impairments are not of
such severity that they could reasonably be expected to give rise to
disabling limitations, for the reasons set out in the body of this decision.
5.
The claimant retains the residual functional capacity to perform
medium work with the limitations of simple, repetitive, non-complex
tasks. He should primarily work around things and not the general
6

public; and he should have only occasional contact (one-third of the
time) with coworkers and supervisors. Any testimony or allegations
otherwise are not credible.
6.

The claimant is a younger individual.

7.

The claimant has an occupation high school diploma.

8.
The claimant’s past relevant work was performed at the medium
level of physical exertion and was unskilled to semiskilled work.
9.
Although the claimant is unable to perform the full range of
medium work, using Medical-Vocational Rules 2032.5 and 203.26 as a
framework for decision-making, there are a significant number of
medium jobs in the national economy that he could perform. Examples
of such jobs include laundry worker, machine feeder, and order picker.
10. The claimant was not under a “disability,” as defined in the Social
Security Act, at any time through the date of this decision.
(Tr. 31-32).
Accordingly, the ALJ concluded that Mr. Davis has not been under a disability,
as defined in the Social Security Act, from September 13, 2008, through the date of
the ALJ’s decision.
ANALYSIS
I. INTRODUCTION
Mr. Davis has asserted that the ALJ erred with regard to the weight he gave to
non-physician medical opinion, his assessment of the impact of potentially disabling
side effects, and his assessment of Mr. Davis’s impairments regarding his ability to
7

work. After reviewing the entire record, this court has concluded that (1) the ALJ
followed proper legal standards in determining that Mr. Davis was not disabled, (2)
substantial evidence supported the ALJ’s finding that Mr. Davis was not disabled
under the Social Security Act, and (3) substantial evidence supported the ALJ’s
finding that Mr. Davis is capable of performing medium work with some limitations.
Therefore the Commissioner’s denial of Social Security benefits will be affirmed.
II. THE ALJ APPLIED PROPER LEGAL STANDARDS IN HIS
DETERMINATION OF DISABILITY
Disability is defined as the “inability to engage in 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 twelve months.” 42 U.S.C. § 423(d)(1)(A). It is
the claimant’s burden to establish that an impairment meets or equals a listing.
Bowen v. Yuckert, 482 U.S. 137, 146 & n.5 (1987).
As noted earlier, the ALJ found Mr. Davis’s history of ADHD and mood
disorder as severe impairments. (Tr. 31). A severe impairment significantly limits
an individual’s physical or mental ability to do basic work activities. 20 C.F.R. §
416.920(c) (2012).
To evaluate a claim of disability based on a mental impairment, the ALJ must

8

follow a special procedure, often referred to as the Psychiatric Review Technique,
that is set out at 20 C.F.R. § 416.920(a). 20 C.F.R. § 416.920(a)(b)(2) provides that
the ALJ must rate the degree of functional limitation resulting from the impairments
in accordance with paragraph (c) of that section and must record the findings as set
out in paragraph (e) of that section. Subparagraph (c)(4) requires the degree of
limitation in the functional areas of daily living; social functioning; and
concentration, persistence or pace be rated using a five point scale of: “None, mild,
moderate, marked, and extreme,” and the degree of limitation in the fourth functional
area (episodes of decompensation), be rated using the four-point scale of: “None, one
or two, three, four or more.” The Regulations provide in pertinent part that “[a]t the
administrative law judge hearing [level] ... the decision must include a specific
finding as to the degree of limitation in each of the functional areas described in
paragraph (c) of this section.” 29 U.S.C. § 416.920(a)(e)(4).
The effects of an impairment are measured by the limitations on the ability to
work. Olsen v. Astrue, 858 F. Supp. 2d 1306, 1314–15 (M.D. Fla. 2012). The ALJ
must consider a claimant's limitations on the ability to work when assessing the
severity of an impairment. See 20 C.F.R. §§ 416.920(c), 416.921 (limitations from
an impairment determine whether it is severe). If the ALJ finds a claimant's
impairment or combination of impairments to be severe, then the ALJ must determine
9

whether the claimant's impairment or combination of impairments meets or medically
equals the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). For a finding of severe disability
according to a Listing, there must be at least two marked difficulties in these
categories. Stiles ex rel. C.M.S. v. Astrue, No. 5:07-CV-52-Oc-GRJ, 2008 WL
879299, at *2 (M.D. Fla. Mar. 28, 2008).
In accordance with the requirements of 20 C.F.R. § 416.920(a)(c)(4), the ALJ
found that Mr. Davis’s severe impairments of ADHD and mood disorder caused
moderate restrictions in activities of daily living, moderate difficulties in social
functioning, moderate difficulties in concentration, persistence or pace, and no
episodes of decompensation that had been of an extended duration. (Tr. 26). Thus,
Mr. Davis’s mental impairments were determined to cause moderate difficulties in
three of the four broad areas of functioning.
The ALJ then found that Mr. Davis’s mood disorder and history of attention
deficit hyperactivity disorder (“ADHD”) did not satisfy “paragraph B” criteria or
“paragraph C criteria of the applicable mental disorder listing(s).” (Tr. 14). In fact,
the ALJ specifically refers to paragraph C of Listing 12.04 and found that Mr. Davis
did not have a combination of mental disorders with the required level of functional
limitation. Id.
10

III. THE ALJ’S DISABILITY FINDING WAS
BASED ON SUBSTANTIAL EVIDENCE
A. THE ALJ CORRECTLY DISCOUNTED THE NURSE
PRACTITIONER’S OPINION AND QUESTIONNAIRE
Disability is determined by the ALJ in conjunction with medical reports. The
opinions of the plaintiff’s treating sources are generally given more weight than
“objective medical findings or from reports of individual examinations, such as
consultative examinations.” 20 C.F.R. § 416.927(c)(2) (2012). The longer a treating
source has treated a plaintiff, and the more knowledge they have of the impairments,
the more weight will be given to the opinion. 20 C.F.R. § 404.1527(c) (2012). Nurse
practitioners are recognized as an “other source” and can only “show the severity of
[the] impairment(s) and how it affects [the] ability to work.”

20 C.F.R. §

404.1513(d)(1) (2013). However, if a nurse practitioner works closely, is supervised,
and has her diagnoses approved by a doctor, her diagnoses can be considered
acceptable medical evidence, rather than just “other evidence;” they may also be
considered a treating source due more weight. King v. Astrue, 493 F. Supp. 2d 1232,
1234 (S.D. Ala. 2007). Diagnoses from nurse practitioners acting alone do not
constitute substantial medical evidence, and cannot be considered to override the
medical opinion of a physician. See id. Also, specialists are generally entitled to
more weight than the opinion of a source who is not a specialist when the ALJ
11

balances conflicting medical testimony. King v. Barnhart, 320 F. Supp. 2d 1227,
1231-1232 (N.D. Ala. 2004).
The ALJ can disregard non-medical source opinions based on a claimant’s
report of his subjective symptoms when they conflict with acceptable medical sources
and records, which are entitled greater weight. See Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1160 (11th Cir. 2004). Additionally, the ALJ does not have to weigh
evidence from nurses if he finds it conclusory. See Corbitt v. Astrue, No. 3:07-CV518-J-HTS, 2008 WL 1776574, at *1–2 (M.D. Fla. Apr. 17, 2008).
First, the ALJ stated that the claimant had “severe impairments” of mood
disorder and history of ADHD based on Mr. Davis’s history and Dr. Markert’s report.
(Tr. 31). Dr. Markert, a psychologist, consulted with Mr. Davis once in December
of 2008. Id. Dr. Markert concluded that Mr. Davis’s prognosis would improve if he
met with a psychiatrist for a trial of ADHD medication and a therapist to learn coping
mechanisms. (Tr. 23, 31).
The ALJ then correctly discounted Birmingham Health Care’s report that the
claimant had been diagnosed by Ms. Garvey in April of 2010 with psychosis not
otherwise specified, depression not otherwise specialized, and rule out mood disorder,
because Ms. Garvey was a nurse practitioner, acting alone, without supervision or
approval of a doctor. (Tr. 28). Because Dr. Markert was a specialist in psychology,
12

the ALJ properly gave significant weight to Dr. Markert’s diagnosis as medical
evidence and appropriately discarded Ms. Garvey’s diagnoses as unacceptable
medical evidence.
Secondly, Ms. Garvey’s questionnaire was based entirely on subjective
complaints, was conclusory, and had no objective clinical evidence.

The

questionnaire simply asked several questions and Ms. Garvey gave no explanation or
follow up surrounding the report. (Tr. 249–50). As the ALJ stated in his decision,
it is odd that Ms. Garvey “diagnosed” the claimant with these serious and debilitating
mental illnesses but never referred him to a doctor. (Tr. 29). Also, the ALJ pointed
out that the claimant’s daily activities did not reflect the activities of someone
suffering from such severe mental disabilities. Id.
B. THE ALJ CORRECTLY ANALYZED
MR. DAVIS’S COMBINATION OF SEVERE IMPAIRMENTS
The ALJ correctly evaluated Mr. Davis’s various severe impairments separately
and also considered whether their combined impact rendered him disabled. In
determining whether a claimant is disabled under the Social Security Act, the ALJ
must make “specific and well-articulated findings” as to the combined effect of all
impairments that a claimant has. Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir.
1987) (citations omitted); see also Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir.

13

1986) (holding that ALJ must address the degree of impairment caused by the
“combination of physical and mental medical problems”) (citations omitted); Swindle
v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (finding that an ALJ did not give
adequate consideration to effect that combination of exertional and non-exertional
impairments had on claimant’s ability to work). Importantly, where there is more
than one impairment, the claimant may be found disabled even though none of the
individual impairments is disabling. Walker, 826 F.2d at 1001 (citation omitted).
The ALJ’s failure to consider properly a claimant’s condition requires remand. Vega
v. Comm’r of Soc. Sec., 265 F.3d 1214, 1220 (11th Cir. 2001).
The ALJ met this requirement when he discussed the combination of
impairments in determining that Mr. Davis’s severe impairments only limited him
moderately in a job context. (Tr. 26–27). Mr. Davis relied, once again, on Ms.
Garvey’s evaluation, as well as the emergency room physician of his August 17, 2008
visit, in an effort to show reversible error on the part of the Commissioner. (Tr. 219).
As previously discussed, the ALJ discarded the nurse practitioner’s diagnoses
correctly. The ALJ also correctly discounted the emergency room visit, stating that
although Mr. Davis had been diagnosed with anxiety disorder by the ER physician,
he had not been diagnosed with anxiety disorder again by any other medical
professional, including Ms. Garvey. (Tr. 25).
14

During his consultative examination (“CE”) with Dr. Markert, she found that
Mr. Davis was mildly irritable, but he was not hearing voices, having periods of
decomposition, or violent thoughts (suicidal or homicidal). (Tr. 28). During the ER
trip and the CE with Dr. Markert, Mr. Davis actually told both doctors that he thought
that medication and counseling would help him, and that it had helped him when he
was younger. Id. Also, this ER trip occurred in August of 2008, a month before Mr.
Davis claims to have become disabled; yet when he initially filed for benefits, he
listed ADD as his only severe impairment. (Tr. 28). Since Mr. Davis was unable to
provide any other supporting evidence to corroborate the ER physician’s diagnosis,
and because his symptoms were consistent with Dr. Markert’s report and the record
itself, the ALJ correctly found that Mr. Davis did not have a credibly documented
history of a psychotic or anxiety disorder. (Tr. 25). Therefore, the ALJ properly
excluded the ER physician’s diagnosis from Mr. Davis’s combination of severe
impairments. (Tr. 28).
C. THE ALJ FULLY DEVELOPED THE RECORD REGARDING SIDE
EFFECTS FOR A DETERMINATION OF DISABILITY
When a claimant attempts to establish disability through his own testimony of
subjective symptoms, the Eleventh Circuit has established a three-part test that
requires: “(1) evidence of an underlying medical condition and either (2) objective

15

medical evidence that confirms the severity of the alleged [symptom] arising from
that condition or (3) that the objectively determined medical condition is of such a
severity that it can be reasonably expected to give rise to the alleged [symptom].”
Carter v. Comm’r of Soc. Sec., 411 F. App’x. 295, 297 (11th Cir. 2011) (quoting Holt
v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). “If proof of a disability is based
upon subjective evidence and a credibility determination is, therefore, critical to the
decision, the ALJ must either explicitly discredit such testimony or the implication
must be so clear as to amount to a specific credibility finding.” Foote v. Chater, 67
F.3d 1553, 1562 (11th Cir. 1995).
Also, a claimant’s testimony about the nature of side effects must be credible
and supported by medical evidence. Daniels v. Astrue, No. 1:07cv838, 2008 WL
2074436, at *3 (M.D. Ala. May 14, 2008). The Eleventh Circuit has affirmed an
ALJ's decision that a claimant's testimony about the alleged levels of pain and
symptoms he experienced was not credible when the allegations were inconsistent
with activities of daily living, limited use of pain medication, and effectiveness of
treatment. See Wilson v. Barnhart, 284 F.3d, at 1226.
In this case, there was no documented medical evidence of disabling side
effects. (Tr. 74). Mr. Davis claimed that he heard giggles, but in Dr. Markert’s CE,
Mr. Davis explicitly denied hearing voices. (Tr. 28). With no psychotic diagnosis
16

from a psychologist or psychiatrist, and in light of Dr. Markert’s CE, the ALJ
correctly decided that the claimant’s subjective complaints were not credible or based
on any medical evidence. Id.
Also, Mr. Davis testified at the hearing that he did not leave his room for three
days a week on average. (Tr. 53). However, Mr. Davis stated that he engaged in
multiple activities around the house that require daily work, such as taking the dog
out and cleaning the house. Id. Mr. Davis testified that two alternative reasons that
he did not socialize more often were because he did not have a driver’s license and
he did not have any money, and not solely because of his severe mental impairments.
(Tr. 66). Furthermore, Ms. Garvey suggested that the only side effect of Mr. Davis’s
medication may be sedation, but no mention was ever made of a debilitating
drowsiness. (Tr. 29). Therefore, the ALJ rightfully decided that the subjective
complaint could not constitute a disabling side effect in the absence of any medical
or objective evidence.
D. THE ALJ PROPERLY DECIDED AGAINST ORDERING AN
ADDITIONAL CONSULTATIVE EXAMINATION
An ALJ can order a CE “when one is necessary to make an informed decision”
and is “one means by which an ALJ discharges his duty to fully develop the record.”
McCray v. Massanari, 175 F. Supp. 2d 1329, 1338 (M.D. Ala. 2001) (citing Reeves

17

v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984)). Federal regulations may require
a CE when a conflict or inconsistency arises in the record, or the evidence is not
sufficient to support a finding. 20 C.F.R. § 404.1519a(b). However, an ALJ may also
order a CE at his discretion when: “There is an indication of a change in [the
claimant’s] condition that is like to affect [the claimant’s] ability to work, but the
current severity of [the] impairment is not established.” 20 C.F.R. § 404.1519a(b)(5).
It is reversible error for an ALJ to refuse to order a CE when “such an evaluation is
necessary for him to make an informed decision.” Reeves, 734 F.2d at 522 n.1.
However, the Eleventh Circuit has stated that when there is enough evidence in the
record to make a decision, the ALJ is not required to order a second CE, as long as
that evidence is consistent and “sufficient for the [ALJ] to make an informed
decision.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir.
2007).
Mr. Davis claimed that the ALJ committed reversible error when he did not
order an additional CE. (Pl.’s Br. 7). However, the ALJ already ordered a CE with
Dr. Markert in December of 2008, and the severity of Mr. Davis’s impairments,
including side effects, was fully established at the time of the ALJ hearing, as
discussed above. (Tr. 28–35). In fact, the record substantiates that the medication
would likely improve Mr. Davis’s moderate limitations, and the ALJ had no reason
18

to believe that Mr. Davis’s condition would deteriorate upon continuing his
medication and therapy sessions, especially considering Mr. Davis’s statement that
medication had helped him with ADHD as a child. (Tr. 23). In this case, the severity
of the impairment was established, and there was no indication in the record that there
was going to be a change in Mr. Davis’s condition that would alter his ability to work.
Therefore, the ALJ’s decision not to order an additional CE was supported by
substantial evidence, and the Commissioner did not commit reversible error.
IV. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S RESIDUAL
FUNCTIONAL CAPACITY DETERMINATION
If a claimant cannot return to their previous work, the ALJ must determine if
the claimant can make an adjustment to other work. 20 C.F.R. § 404.1520(g)(2). The
ALJ therefore must make a residual functional capacity (“RFC”) determination to
assess the claimant's remaining ability to do work despite his impairments, based on
all relevant evidence. 20 C.F.R. § 416.945(a) (2012). Factors that an ALJ uses to
determine RFC include age, education, and work experience. 20 C.F.R. 404.1520(a).
The focus of this assessment is on the doctors' evaluations of the claimant's
condition and the medical consequences thereof. Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir.1997). In evaluating a claimant's RFC, the ALJ is obliged to consider
all of the claimant's impairments. Id. The four functional areas summarized by

19

application of the Psychiatric Review Technique are broad categories to assist the
ALJ in determining at steps two and three which of the claimant's mental impairments
are severe, and then to determine the mental functional limitations on the claimant's
ability to perform basic work activities. See 20 C.F.R. § 416.920(a)(c); SSR 96–8p,
1996 WL 374184, *4 (S.S.A. Jul. 2, 1996).
Determination of the functional limitations is a “highly individualized” and fact
specific determination that complies with the “function by function assessment”
addressing the plaintiff's work related mental activities set forth in SSR 96–8p. Olsen
v. Astrue, 858 F. Supp. 2d 1306, 1318 (M.D. Fla. 2012). Work related mental
activities include the ability and aptitude to understand, carry out, and remember
instructions; use judgment in making work-related decisions; respond appropriately
to supervision, co-workers and work situations; and deal with changes in a routine
work setting. 20 C.F.R. § 416.921(b). The category of concentration, persistence or
pace refers to the “ability to sustain focused attention and concentration sufficiently
long to permit the timely and appropriate completion of tasks commonly found in
work settings.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00. While limitations in
this category may best be observed in work settings, limitations may also be assessed
through clinical examination or psychological testing that evaluates short-term
memory and/or the completion of tasks that must be finished within established time
20

limits. Id. The category of social functioning refers to the “capacity to interact
independently, appropriately, effectively, and on a sustained basis with other
individuals.” Id. In a work setting, social functioning involves interactions with the
public, supervisors and co-workers. Id.
Dr. Robert Estock, M.D. evaluated Mr. Davis’s mental functioning on
December 12, 2008. (Tr. 245). In his report, he found that Mr. Davis had moderate
limitations in several categories. In the “Understanding and Memory” category, Dr.
Estock found that the claimant had moderate limitations in his ability to understand
and remember detailed instructions, but was not significantly limited otherwise. (Tr.
243). In the “Sustained Concentration and Persistence” category, Dr. Estock found
that the claimant had moderate limitations in his ability to carry out detailed
instructions, the ability to maintain attention and concentration for extended periods,
and the ability to complete a normal work day and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods, but was not otherwise significantly
limited. Id. In the “Social Interaction” category, Dr. Estock found that the claimant
had moderate limitations in his ability to interact appropriately with the general
public, the ability to accept instructions and respond appropriately to criticism from
supervisors, the ability to get along with coworkers or peers without distracting them
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or exhibiting behavioral extremes, and the ability to respond appropriately to changes
in the work setting, but was not otherwise significantly limited. Id.
Consistent with Dr. Estock’s evaluation, the ALJ found that Mr. Davis’s severe
impairments of mood disorder and history of ADHD were moderate limitations, and
that Mr. Davis had the RFC to perform medium, unskilled work with limited contact
with the public and occasional (one-third of the time) contact with coworkers and
supervisors. (Tr. 15).
In Mr. Davis’s case, the Court is satisfied that the ALJ made the function by
function assessment that addresses the claimant’s ability to perform work related
activities. The ALJ concluded that Mr. Davis had the residual functional capacity to
perform medium work with simple, repetitive, non-complex tasks. (Tr. 15). The ALJ
considered all of the evidence discussed above and credited each appropriately, using
them correctly to aid in his determination of RFC. (Tr. 29). The ALJ accounted for
Mr. Davis’s mood disorder by limiting Mr. Davis’s contact with others. Id. The ALJ
also accounted for Mr. Davis’s ADHD by stating that Mr. Davis could no longer work
at jobs that require a great deal of constant attention. Id. Then, the ALJ found that
Mr. Davis was young, had an occupational high school education, and had worked
at semi-skilled and unskilled jobs in the past. (Tr. 68–70). In fact, even though Mr.
Davis had an occupational high school degree, the ALJ decided to only credit him
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with “limited education.” (Tr. 69). The ALJ determined that he would most likely
not be able to return to his previous work because of his concentration and
socialization limitations. Id. Next, the ALJ discussed Mr. Davis’s impairments and
reasons for being unable to work in the past. Id. Mr. Davis engaged in short-term
employment as recently as February 2010, when he was fired as an auto technician
mostly due to concentration problems and the inability to get along with others. Id.
The ALJ decided that it is likely that Mr. Davis would be able to do simple work that
would not require constant full attention, and a job in which he had contact with
coworkers and supervisors only a third of the time, with limited or no public
interaction. (Tr. 70–75).
Courts have reversed and remanded claims in the past when the ALJ’s RFC
limitation did not address the whole of the claimant’s moderate difficulties in social
functioning or his moderate difficulties in concentration, persistence or pace. See
e.g., Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180–81 (11th Cir. 2011).
Also, “a restriction to unskilled work plainly does not cover a moderate limitation in
social functioning.” Millhouse v. Astrue, No. 8:08–CV–378–T–TGW, 2009 WL
763740, *3 (M.D. Fla. Mar. 23, 2009). Unskilled work has been found insufficient
to account for difficulties in concentration, persistence or pace, unless the medical
evidence clearly demonstrates otherwise. Id. In Winschel, the court found limitations
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to simple, routine tasks or to unskilled work would not, standing alone, typically be
sufficient to account for a plaintiff's moderate limitations in concentration, persistence
or pace. Winschel, 631 F.3d at 1180. Similarly, in Brunson v. Astrue, the court
found limiting the plaintiff to unskilled jobs without unusual stress did not address
the impact of the plaintiff's moderate limitations in concentration, persistence, or pace
on his ability to perform work-related activities. See, 850 F. Supp. 2d at 1300–04.
Evidence in the record suggests that Mr. Davis has had moderate difficulties
in relationships with others, including supervisors.

(See, e.g., Tr. 26).

The

Regulations clearly state that these relationships fall under the umbrella of social
functioning. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00. The record also
establishes that Mr. Davis had moderate difficulties in concentration. (Tr. 26). Thus,
the ALJ followed the Regulations and Eleventh Circuit binding authority in
discussing, and limiting, his RFC to potential jobs that were “medium work except
with the limitations that they be simple, repetitive, non-complex in nature . . .
primarily . . . around things and not the general public,” and have contact with
coworkers and supervisors only one-third of the time. (Tr. 70). Therefore, the ALJ’s
function by function analysis that the claimant was not disabled was based on
substantial evidence, and the Commissioner did not commit reversible error.

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CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner’s final decision
applies the proper legal standards and is supported by substantial evidence.
Accordingly, the decision is due to be AFFIRMED.
DONE and ORDERED this the 18th day of November, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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