Cameron v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION as more fully set out. Signed by Magistrate Judge Harwell G Davis, III on 03/30/16. (SPT )

FILED
2016 Mar-30 PM 12:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHARON DENISE CAMERON,
Plaintiff
vs.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant

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) Case No. 2:15-cv-00204-HGD
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MEMORANDUM OPINION
Plaintiff, Sharon Denise Cameron, protectively filed applications for
Supplemental Security Income (SSI), a period of disability, and disability benefits (DIB)
on February 17, 2012, alleging that she became disabled on November 1, 2010. The
Agency denied her applications. Plaintiff requested a hearing before an administrative law
judge (ALJ). A hearing was held in September 2013. (Tr. 31-81). The ALJ found
plaintiff to be not disabled by a decision rendered on September 27, 2013. (Tr. 11-23).
The Appeals Counsel denied plaintiff’s request for review on December 4, 2014.
Plaintiff appealed and his claim is now ripe for review pursuant to 42 U.S.C. §§405(g)
and 1383(c)(3).

I.

ALJ Decision
Disability under the Act is determined under a five-step test.

20 C.F.R.

§ 404.1520. First, the ALJ must determine whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). “Substantial work activity”
is work that involves doing significant physical or mental activities. 20 C.F.R. §
404.1572(a). “Gainful work activity” is work that is done for pay or profit. 20 C.F.R. §
404.1520(b). Second, the ALJ must determine whether the claimant has a medically
determinable impairment or a combination of medical impairments that significantly
limits the claimant’s ability to perform basic work activities.

20 C.F.R. §

404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability. Id.
Third, the ALJ must determine whether the claimant’s impairment meets or medically
equals the criteria listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§
404.1520(d), 404.1525 and 404.1526. If such criteria are met, the claimant is declared
disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled
under the third step, the ALJ may still find disability under the next two steps of the
analysis. The ALJ first must determine the claimant’s residual functional capacity (RFC),
which refers to the claimant’s ability to work despite his impairments. 20 C.F.R. §
404.1520(e). In the fourth step, the ALJ determines whether the claimant has the RFC
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to perform past relevant work, 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is
determined to be capable of performing past relevant work, then the claimant is deemed
not disabled. Id. If the ALJ finds that the claimant is unable to perform past relevant
work, then the analysis proceeds to the fifth and final step.

20 C.F.R. §

404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether the
claimant is able to perform any other work commensurate with his RFC, age, education
and work experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from
the claimant to the ALJ to prove the existence in significant numbers of jobs in the
national economy that the claimant can do given the RFC, age, education and work
experience. 20 C.F.R. §§ 404.1520(g) and 404.1560(c).
Following this five-step procedure, the ALJ found that plaintiff has the following
severe impairments: paranoid schizophrenia and bipolar disorder. However, the ALJ
found that these conditions did not preclude all work by plaintiff. (Tr. 16). The ALJ
further found that plaintiff’s condition did not meet or medically equal the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R.
§§ 404.1520(d), 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926.
(Tr. 17).
The ALJ determined that plaintiff had the RFC to perform a full range of all work
at all exertional levels but with the following non-exertional limitations: the plaintiff is
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able to perform simple routine, and repetitive tasks in a work environment free from fastpaced production requirements; involving only simple work-related decisions and routine
workplace changes; with no interaction with the public, and only occasional interaction
with co-workers; and no tandem tasks. (Tr. 18).
The plaintiff was 25 years old with no past relevant work experience at the time
of the ALJ’s decision. (Tr. 21-22). Based on the testimony of a vocational expert (VE),
the ALJ found that someone with plaintiff’s limitations would be able to perform the
requirements of the occupations of cleaner, food preparation worker, and kitchen worker,
all of which have available jobs in the local and national economy. (Tr. 22).
II.

Plaintiff’s Argument for Reversal
Plaintiff asserts that the Commissioner’s decision should be reversed because the

ALJ failed to consider key portions of the opinion of Dr. Robert Estock, a reviewing
physician. (Doc. 11, Plaintiff’s Brief, at 3). Dr. Estock opined that plaintiff could
perform unskilled work involving simple tasks, would miss one to two days per month,
and could benefit from a flexible schedule. (Tr. 21). The ALJ further stated that,
although this opinion was considered, he believed that the record as a whole suggests
greater difficulties with social interaction due to plaintiff’s mental health symptoms. (Tr.
21). Plaintiff asserts that the ALJ’s decision does not address the absenteeism issue as
it relates to plaintiff’s case, made significant by the fact that the VE testified that an
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employer would tolerate no more than one to one and a half days of unscheduled
absences per month. (Tr. 77; Doc. 11, Plaintiff’s Brief, at 4-5).
III.

Standard of Review
Judicial review is limited to whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982), and whether the correct legal standards were applied. See Lamb
v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Brown, 792 F.2d 129, 131
(11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates that the Commissioner’s findings
are conclusive if supported by “substantial evidence.” Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). The district court may not reconsider the facts, re-evaluate
the evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is reasonable and
supported by substantial evidence. See id. (citing Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of
evidence; “[i]t is such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at
1239) (other citations omitted).

If supported by substantial evidence, the

Commissioner’s factual findings must be affirmed even if the evidence preponderates
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against the Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court
acknowledges that judicial review of the ALJ’s findings is limited in scope, the court also
notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
IV.

Evidence
In his decision, the ALJ notes that plaintiff claims that she became unable to work

in November 2010 because her paranoia became worse and she thought someone was
trying to kill her. She was hospitalized in late November 2010 because she would not
leave her house. She acknowledged that she was not taking her medication prior to her
hospitalization. She further stated that, when she took her medication, it helped a lot.
She was discharged with medications, but did not immediately follow up. (Tr. 19).
Plaintiff did begin to be seen on a monthly basis by Dr. Rachel Julian, M.D., a
psychiatrist. Dr. Julian adjusted her medication due to side effects. Plaintiff reports that
her current medication does not cause side effects. However, she asserts that she
continues to see things on the wall, hear voices daily, and have panic attacks three to four
times per week despite medication. (Id.)
Plaintiff testified that she lives with her mother in an apartment, that her mother
performs all the household chores, and that she provides no assistance. She testified that
the day before her hearing before the ALJ, she got up, showered, ate breakfast, read a
magazine, and went outside and down the street to get the mail. She stated that she
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generally spends her days watching television and going to the store with the help of her
mother. (Id.).
The ALJ found that there is evidence that plaintiff suffers from medically
determinable impairments that could reasonably be expected to cause the alleged
symptoms, but that her statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible. (Id.).
According to the ALJ, the evidence as a whole shows that plaintiff is capable of
performing unskilled work with limited social interaction, as set forth in the RFC. He
noted that plaintiff was hospitalized in November 2010 for approximately one week with
command hallucinations. She was not taking her prescribed medication at that time.
However, her symptoms improved significantly with medication. (Id.).
She received no further mental health treatment until April 2011, when she began
seeing Dr. Julian. She reported symptoms of auditory hallucinations and depression had
increased without proper medication. Her symptoms improved with medication.
Treatment notes in May 2011 show that plaintiff was going to the store and doing
housework, despite her mental health symptoms. In August 2011, she was spending time
with her extended family. Contrary to her hearing testimony, plaintiff reported in
November 2011 that she was helping her mom around the house. She also stated that her
auditory hallucinations had decreased. In January 2012, she reported that she wanted to
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find employment. Dr. Julian offered to increase her medication due to reports of
incoherent mumbling; however, plaintiff declined. In April 2012, treatment notes
indicate that plaintiff’s goal was to be working within the next year. (Tr. 19-20).
Treatment notes from July 2012 reflect that plaintiff’s hallucinations were better.
September 2012 treatment notes indicate that she had stopped taking her medications and
was experiencing paranoid thoughts and auditory hallucinations. After restarting
medications, her condition improved. In December 2012, plaintiff reported that her
medications were working well. She reported the same in March 2013. In April 2013,
Dr. Julian noted only mild to moderate symptoms. However, plaintiff reported that she
was scared to go out of her house. In May 2013, Dr. Julian noted mild to moderate
symptoms. Dr. Julian noted mildly decreased memory and concentration, mild energy
problems and situational anxiety, and moderate problems with delusions and
hallucinations. Plaintiff reported that she was happy with her current medication. In
August 2013, Dr. Julian noted the same mild to moderate symptoms and that plaintiff
desired no medication changes. (Tr. 20).
According to the ALJ, in all, the treatment records show that plaintiff’s mental
health symptoms cause only mild to moderate functional limitations when plaintiff is
compliant with medication. (Id.). The ALJ noted that, despite this evidence in the
medical record, Dr. Julian provided medical source statements in May and September
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2013. In these statements, she opines that plaintiff’s mental health symptoms caused
mostly marked limitations in functioning, despite treatment notes suggesting, at most,
moderate functional limitations in 2013, as set out above. Accordingly, the ALJ gave
little weight to these statements because they contradicted her treatment notes. In
addition, there is also evidence in the record of malingering, as set out below. (Id.).
The ALJ also referenced the consultative examination of Dr. Dan Lowery, Ph.D.,
who examined plaintiff in July 2011. Dr. Lowery suspected malingering and noted that
the information provided by plaintiff was unreliable. He suspected malingering due to
her poor effort during the mental status examination, resulting in inconsistent responses.
For example, she was able to perform some simple arithmetic problems, while struggling
with others. She also mis-spelled the word “world.” The ALJ also made note of the fact
that plaintiff reported to Dr. Lowery that she prepared simple meals and did housework
as part of her daily activities although she testified that her mother performed all
household tasks including meal preparation. The ALJ gave this report significant weight
in assessing plaintiff’s credibility. (Id.).
Dr. Sylvia Colon, M.D., examined plaintiff in July 2012. Dr. Colon noted that
plaintiff was a poor historian, with difficulty recalling dates and events of her illness.
Contrary to her testimony, plaintiff again reported daily activities including household
chores, laundry, washing dishes, simple cooking, grocery shopping, visiting with
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neighbors, taking walks, and going to the mall. Dr. Colon noted that plaintiff may have
been exaggerating her responses to calculations. Contrary to her examination by Dr.
Lowery, plaintiff was able to correctly spell the word “world” forward and backwards
during her evaluation by Dr. Colon. Plaintiff was able to do three-step commands, but
was unable to give responses to abstract thinking questioning. Dr. Colon could not give
a functional assessment, but gave plaintiff a poor prognosis based on her history of noncompliance with medication. The ALJ gave great weight to Dr. Colon’s report in
assessing plaintiff’s credibility. (Tr. 21).
The ALJ found that the consultative reports lessened the credibility of plaintiff’s
allegations. She gave poor effort, exaggerated responses, and inconsistent responses
during the examinations. Further, her reported daily activities contradicted her hearing
testimony wherein she testified that she performs no household activities and goes
shopping only with family. (Id.).
In July 2011, Steven Dobbs, Ph.D., the state agency consultant, concluded that
there was insufficient evidence to assess plaintiff’s functioning due to possible
malingering and poor effort. In July 2012, Dr. Robert Estock, M.D., concluded that there
was insufficient evidence prior to plaintiff’s last insured date to assess her functioning
as it related to her Title II claim for benefits. However, the ALJ found that evidence
submitted at the hearing level established the existence of plaintiff’s severe impairments
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prior to her date last insured. Regarding her Title XVI claim for benefits, Dr. Estock
opined that plaintiff could perform unskilled work involving simple tasks, would miss
one to two days of work per month, and could benefit from a flexible schedule. The ALJ
stated that, although considered, the evidence of record as a whole suggests “greater
difficulties with social interaction” as a result of plaintiff’s mental health symptoms. (Tr.
21).
V.

Discussion
Plaintiff contends that the ALJ should have included in his RFC finding the State

agency psychological consultant’s opinion that plaintiff would miss one to two days of
work monthly which, based on the VE’s testimony, would preclude work.
While the ALJ’s RFC finding does not include a limitation that plaintiff may miss
one to two days of work per month, the RFC is supported by the record as a whole. As
noted above, the ALJ considered treatment records from November 2010, when plaitiff
was hospitalized for hallucination after she stopped taking her medication. Her condition
improved markedly when she was put back on her medication. She went five months
before seeking psychiatric treatment again, supposedly due to financial difficulties. At
that time, she reported that she had been off her medication for two months and was
experiencing depression, paranoia and daily auditory hallucinations. Once placed back
on medication, her condition again improved to the point that she reported doing

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housework and going to the store. She also stated that her goal was to be working in the
next year. In August 2011, her symptoms were “very manageable” and rated no more than
“mild” in severity. In November 2011, her symptoms were again rated as no more than
mild, and plaintiff reported that her auditory hallucinations had decreased and that she
was helping with housework. Dr. Julian indicated that plaintiff’s condition was
improving.
Although plaintiff reported some hallucinations in January 2012, she declined Dr.
Julian’s offer to increase her medication dosage. Her symptoms were assessed as noneto-mild in severity. In April 2012, two months after applying for disability benefits,
plaintiff again stated that she hoped to secure employment in the next year.
In July 2012, her hallucinations had decreased and her symptoms were assessed
as none-to-moderate in severity. Plaintiff stopped taking her medication in September
2012, and reported hallucinations again. Dr. Julian restarted her on her medications and
by December 2012, her hallucinations were rated as mild, her mood was stable, and she
reported that she felt that her medication was effective. In March 2013, plaintiff again
reported that she was feeling better on her medication, and Dr. Julian assessed her with
only mild symptoms. In August 2013, Dr. Julian indicated that plaintiff was doing well,
with a much-improved mood, no side effects, and auditory hallucinations that she was
able to ignore.

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Based on this evidence in the medical record, the finding by the ALJ, that plaintiff
had only mild to moderate limitations when she was compliant with her medication, is
well supported. Furthermore, Dr. Julian did not suggest in any of her reports that
plaintiff’s condition would cause her to miss any work.
Likewise, the report of consultative examiner Dan Lowery, Ph.D., indicated that
plaintiff was suspected of malingering during the mental status examination and did not
indicate that her condition would cause her to miss any work.
Dr. Sylvia Colon also conducted a consultative examination and similarly opined
that plaintiff may have exaggerated the severity of her mental impairment. She also did
not indicate that plaintiff’s condition would cause her to miss one to two days monthly.
Only State agency psychological consultant Charles Estock, M.D., opined that
plaintiff may miss one to two days a month due to psychological symptoms. The ALJ
stated that he considered Dr. Estock’s opinion but found the evidence of record as a
whole supported greater difficulties in social functioning than that found by Dr. Estock.
Accordingly, the ALJ limited plaintiff to occupations where she had no interaction with
the public and only occasional interaction with co-workers. A greater difficulty in social
functioning does not suggest that plaintiff may miss more days of work than those
suggested by Dr. Estock. Furthermore, Dr. Estock only opined that plaintiff may miss
work one to two days a month due to her psychological symptoms. The ALJ considered

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plaintiff’s reported daily activities (which contrast greatly with her testimony at the
hearing) wherein she admitted to shopping, doing laundry, cooking simple meals, visiting
neighbors, and going to the mall. Accordingly, the ALJ found that her subjective
complaints were not entirely credible, and his stated RFC is an implicit rejection of the
conclusion that she would, in fact, miss two days of work a month. The objective
medical evidence and the other evidence considered by the ALJ, taken as a whole, do not
indicate that plaintiff’s condition caused limitations beyond those set forth in the ALJ’s
RFC findings. The ALJ adequately explained his reasons for making these findings.
Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002) (noting that the “ALJ made
a reasonable decision to reject [the claimant’s] subjective testimony, articulating, in
detail, the contrary evidence as his reasons for doing so”). There is simply no evidence
in the record to conclude that plaintiff would miss one to two days of work a month.
Although the VE testified that employers would normally tolerate only one to one and
a half missed days a month, remand is not necessary because, as noted above, Dr.
Estock’s opinion that plaintiff “may” miss one to two days per month was equivocal and
unsupported.
Plaintiff also complains that because the ALJ did not assign controlling weight to
the opinion of Dr. Julian, he should have, but failed, to indicate the weight that he gave
to Dr. Estock’s opinion. Plaintiff does not challenge the ALJ’s failure to give Dr.

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Julian’s opinion controlling weight. While the ALJ did not explicitly state the weight
that he gave Dr. Estock’s opinion, he discussed this opinion but stated that he found
plaintiff to be more limited regarding social functioning. Thus, it is clear that he gave
some weight to the opinion of Dr. Estock because the RFC finding is consistent with Dr.
Estock’s opinion that plaintiff could perform simple, routine and repetitive tasks.
Thus, even assuming that the ALJ should have explicitly stated the weight he gave
to Dr. Estock’s opinion, the incorrect application of the regulations results in harmless
error because the correct application would not contradict the ALJ’s ultimate findings.
See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983). It is clear from the ALJ’s
decision that he properly evaluated all of the evidence in finding plaintiff not disabled.
Therefore, any failure to explicitly give the weight which he attributed to Dr. Estock’s
opinion was harmless.
VI.

Conclusion
Because the court has determined that the hypothetical question contained all of

plaintiff’s credible limitations, as supported by the record, the ALJ properly relied on the
VE’s testimony to determine the work plaintiff could perform. Because the ALJ’s
decision is supported by substantial evidence, the decision of the Commissioner is due
to be AFFIRMED. A separate order will be entered.

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DONE this 30th day of March, 2016.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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