Dobbs v. Social Security Administration, Commissioner
MEMORANDUM OPINION as more fully set out therein.Signed by Magistrate Judge Herman N Johnson, Jr on 9/14/18. (BJL)
2018 Sep-14 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JOSEPH WILLIAM DOBBS, SR.,
COMMISSIONER, SOCIAL SECURITY
) Case No. 2:17-cv-00765-HNJ
Plaintiff Joseph William Dobbs, Sr., seeks judicial review pursuant to 42 U.S.C.
§ 405(g) of an adverse, final decision of the Commissioner of the Social Security
Administration (“Commissioner” or “Secretary”), regarding his claim for Supplemental
Security Income (SSI) and Disability Insurance Benefits (DIB). The undersigned has
carefully considered the record, and for the reasons stated below, AFFIRMS the
LAW AND STANDARD OF REVIEW
To qualify for disability benefits and establish entitlement for a period of
disability, the claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.
The Regulations 1 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 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 of 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.
In determining whether a claimant suffers a disability, the Commissioner,
through an Administrative Law Judge (ALJ), works through a five-step sequential
evaluation process. See 20 C.F.R. § 404.1520. The burden rests upon the claimant on
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts 400 to 499.
Although the Social Security Administration amended the regulations effective January 17, 2017, the
amendment applies only to Social Security applications filed after the effective date, March 27, 2017.
Watkins v. Berryhill, No. 7:16-CV-242-FL, 2017 WL 3574450, at *4 (E.D.N.C. Aug. 1, 2017), report and
recommendation adopted, No. 7:16-CV-242-FL, 2017 WL 3568406 (E.D.N.C. Aug. 17, 2017); Jordan v.
Commissioner of Social Security, 2017 WL 3034386 (N.D. Ohio July 18, 2017) (applying version of Listing
12.05(C) in effect at time of ALJ’s decision, but finding error in ALJ analysis and remanding for new
hearing and analysis under new version). Accordingly, the undersigned relies upon the prior versions
in effect at the time of the ALJ’s decision.
the first four steps of this five-step process; the Commissioner sustains the burden at
step five, if the evaluation proceeds that far. Jones v. Apfel, 190 F.3d 1224, 1228 (11th
In the first step, the claimant cannot be currently engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove the impairment is
“severe” in that it “significantly limits his physical or mental ability to do basic work
activities . . . .” 20 C.F.R. § 404.1520(c).
At step three, the evaluator must conclude the claimant is disabled if the
impairments meet or are medically equivalent to one of the impairments listed at 20
C.F.R. Part 404, Subpart P, App. 1, §§ 1.00–114.02. 20 C.F.R. § 404.1520(d). If a
claimant’s impairment meets the applicable criteria at this step, that claimant’s
impairments would prevent any person from performing substantial gainful activity.
20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1525. That is, a claimant who satisfies steps one
and two qualifies automatically for disability benefits if they suffer from a listed
impairment. See Jones, 190 F.3d at 1228 (“If, at the third step, [the claimant] proves that
[an] impairment or combination of impairments meets or equals a listed impairment,
[the claimant] is automatically found disabled regardless of age, education, or work
experience.”) (citing 20 C.F.R. § 416.920).
If the claimant’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluation proceeds to the fourth step where
the claimant demonstrates an incapacity to meet the physical and mental demands of
past relevant work.
20 C.F.R. § 404.1520(e).
At this step, the evaluator must
determine whether the plaintiff has the residual functional capacity (“RFC”) to perform
the requirements of past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). If the
claimant’s impairment or combination of impairments does not prevent performance
of past relevant work, the evaluator will determine the claimant is not disabled. See id.
If the claimant is successful at the preceding step, the fifth step shifts the burden
to the Commissioner to prove, considering claimant’s RFC, age, education and past
work experience, whether the claimant is capable of performing other work. 20 C.F.R.
§ 404.1520(f)(1). If the claimant can perform other work, the evaluator will not find
the claimant disabled. See 20 C.F.R. § 404.1520(a)(4)(v); see also 20 C.F.R. § 404.1520(g).
If the claimant cannot perform other work, the evaluator will find the claimant disabled.
20 C.F.R. § 404.1520(a)(4)(v), (g).
The court reviews the ALJ’s “‛decision with deference to the factual findings and
close scrutiny of the legal conclusions.’” Parks ex rel. D.P. v. Comm’r, Social Sec. Admin.,
783 F.3d 847, 850 (11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th
Cir. 1991)). The court must determine whether substantial evidence supports the
Commissioner’s decision and whether the Commissioner applied the proper legal
standards. Winschel v. Comm’r of Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
Although the court must “scrutinize the record as a whole . . . to determine if the
decision reached is reasonable and supported by substantial evidence,” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted), the court “may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment” for that of the
ALJ. Winschel, 631 F.3d at 1178 (citations and internal quotation marks omitted).
“Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. (citations
omitted). Nonetheless, substantial evidence exists even if the evidence preponderates
against the Commissioner’s decision. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
FACTUAL AND PROCEDURAL HISTORY
Mr. Dobbs protectively filed an application for SSI and DIB on November 12,
2013, alleging disability beginning September 30, 2013. (Tr. 208). The Commissioner
denied his claims, and Dobbs timely filed a request for a hearing on February 24, 2014.
(Tr. 125-26). The Administrative Law Judge (“ALJ”) held a hearing on September 10,
2015. (Tr. 38-81). The ALJ issued an opinion denying Dobbs’s claim on December
28, 2015. (Tr. 17-32).
Applying the five-step sequential process, the ALJ found at step one that Mr.
Dobbs had not engaged in substantial gainful activity since September 30, 2013. (Tr.
22). At step two, the ALJ found the following severe impairments: asthma; mood
disorder; major depressive disorder, recurrent, severe, without psychotic features;
partial complex epilepsy; arthralgias in multiple joints; and history of alcohol
dependence. (Tr. 22). At step three, the ALJ found that Mr. Dobbs’s impairments, or
combination of impairments, did not meet or equal any impairment for presumptive
disability listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 23).
Next, the ALJ found that Mr. Dobbs exhibited the residual functional capacity
(“RFC”) to perform light work with the following non-exertional limitations: the
claimant would require a sit/stand option with the retained ability to stay on or at a
workstation in no less than 30 minute increments each without significant reduction of
remaining on task; the claimant is able to ambulate short distances up to 1 city block per
instance on flat, hard surfaces; the claimant is able to frequently use foot controls
bilaterally; the claimant can occasionally climb ramps and stairs but never climb ladders
or scaffolds; the claimant can frequently stoop and crawl; the claimant should work in
close proximity to coworkers or supervisors in order to be under observation to
monitor potential unplanned seizure activity; the claimant should never be exposed to
unprotected heights, dangerous machinery, dangerous tools, hazardous processes, or
operate commercial motor vehicles; the claimant should be exposed to no more than
moderate noise levels; the claimant could only remember short, simple instructions and
would be unable to deal with detailed or complex instructions; the claimant could do
simple, routine, repetitive tasks but would be unable to do detailed or complex tasks; the
claimant is limited to making simple work-related decisions; the claimant should have
no more than occasional interaction with the general public but could have frequent
interaction with coworkers and supervisors; the claimant would be able to accept
constructive, non-confrontational criticism, work in small group settings, and be able to
accept changes in the workplace setting if introduced gradually and infrequently; the
claimant would be unable to perform assembly-line work with production rate pace but
could perform other goal-oriented work; in addition to normal workday breaks, the
claimant would be off-task 5 percent of an 8-hour workday (non-consecutive minutes).
At step four, the ALJ determined that Dobbs cannot perform his past relevant
work as a forklift operator. (Tr. 30). At step five, based on the testimony of a
vocational expert, the ALJ determined that, considering Mr. Dobbs’s age, education,
work experience, and RFC, a significant number of other jobs exist in the national
economy that Mr. Dobbs could perform, including ticket marker and courier within a
building. (Tr. 31). Accordingly, the ALJ determined that Mr. Dobbs has not been
under a disability, as defined by the Social Security Act, since September 30, 2013. (Tr.
Mr. Dobbs timely requested review of the ALJ’s decision. (Tr. 16). On
March 10, 2017, the Appeals Council denied review, which deems the ALJ’s decision as
the Commissioner’s final decision. Mr. Dobbs filed his complaint with the court
seeking review of the ALJ’s decision. (Doc. 1).
In this appeal, Mr. Dobbs argues (1) the ALJ’s Step 3 determination lacks
support in substantial evidence because he failed to consider Listing 11.03; (2) the ALJ’s
Step 3 determination that Plaintiff does not meet Listing 12.04 lacks support in
substantial evidence because the ALJ improperly rejected Dr. Richard Diethelm’s
opinion; and (3) the ALJ’s Step 5 determination is not supported by substantial evidence
because the jobs identified by the Vocational Expert are inconsistent with the RFC.
The court finds Plaintiff’s assertions do not merit reversal.
The ALJ Did Not Err in the Consideration of Listing 11.03
Dobbs first claims the ALJ erred in failing to assess his seizure disorder under
Listing 11.03, despite finding partial complex epilepsy as a severe impairment. The
court finds the ALJ properly considered the requirements of Listing 11.03, without
specifically mentioning the listing, and his decision has support in substantial evidence.
Listing 11.00 reads, in pertinent part, as follows:
A. Epilepsy. In epilepsy, regardless of etiology, degree of impairment will
be determined according to type, frequency, duration, and sequelae of
seizures. At least one detailed description of a typical seizure is required.
Such description includes the presence or absence of aura, tongue bites,
sphincter control, injuries associated with the attack, and postictal
phenomena. The reporting physician should indicate the extent to which
description of seizures reflects his own observations and the source of
ancillary information. Testimony of persons other than the claimant is
essential for description of type and frequency of seizures if professional
observation is not available.
Under 11.02 and 11.03, the criteria can be applied only if the
impairment persists despite the fact that the individual is following
prescribed antiepileptic treatment. Adherence to prescribed antiepileptic
therapy can ordinarily be determined from objective clinical findings in
the report of the physician currently providing treatment for epilepsy.
Determination of blood levels of phenytoin sodium or other antiepileptic
drugs may serve to indicate whether the prescribed medication is being
taken. When seizures are occurring at the frequency stated in 11.02 or
11.03, evaluation of the severity of the impairment must include
consideration of the serum drug levels. Should serum drug levels appear
therapeutically inadequate, consideration should be given as to whether
this is caused by individual idiosyncrasy in absorption of metabolism of
the drug. Blood drug levels should be evaluated in conjunction with all
the other evidence to determine the extent of compliance. When the
reported blood drug levels are low, therefore, the information obtained
from the treating source should include the physician’s statement as to
why the levels are low and the results of any relevant diagnostic studies
concerning the blood levels. Where adequate seizure control is obtained
only with unusually large doses, the possibility of impairment resulting
from the side effects of this medication must be also assessed. Where
documentation shows that use of alcohol or drugs affects adherence to
prescribed therapy or may play a part in the precipitation of seizures, this
must also be considered in the overall assessment of impairment level.
20 C.F.R. Pt. 404, Subpt. P, App. 1, 11.00.2 Listing 11.03 reads:
Epilepsy—nonconvulsive epilepsy (petit mal, psychomotor, or focal),
documented by detailed description of a typical seizure pattern, including
all associated phenomena; occurring more frequently than once weekly in
spite of at least 3 months of prescribed treatment. With alteration of
awareness or loss of consciousness and transient postictal manifestations
of unconventional behavior or significant interference with activity during
While the ALJ did not specifically mention Listing 11.03, his opinion manifests
he indeed considered the listing and evaluated the evidence in accordance with the
He noted Dobbs experienced seizures accompanied by
right-sided weakness, loss of consciousness, incontinence, and slurred speech. (Tr. 29).
However, the ALJ specifically noted Dobbs responded to anti-seizure medication, such
that by the time of the hearing, Dobbs testified he had not had any seizures in the five
weeks preceding the hearing. (Tr. 29, 55). Thus, Dobbs’s seizures did not meet the
criteria because they were not occurring at least once per week during three months of
The ALJ also noted that a blood test showed less than
therapeutic levels of anti-seizure medication at the beginning of Dobbs’s January 2014
hospital stay. (Tr. 29).
The ALJ further cited normal diagnostic test results and the lack of any follow up
treatment records portraying further seizure-like episodes, suggesting medication
controls the complex partial epilepsy. (Tr. 29). Thus, the ALJ did not err by failing to
mention Listing 11.03 by name, when the opinion establishes he conducted the required
review. See Anteau v. Comm’r of Soc. Sec., 708 F. App’x 611, 614 (11th Cir. 2017) (even
though ALJ failed to mention a disorder and specific listing in his decision, the ALJ’s
determination that claimant’s diagnosis did not meet listing was implicit in the ALJ’s
determination that claimant had the RFC to perform past relevant work; ALJ would
only have reached that determination by first determining that claimant had no severe
impairment that met or equaled a listed impairment); Flemming v. Comm’r of the Soc. Sec.
Admin., 635 F. App’x 673, 676 (11th Cir. 2015) (ALJ’s failure to discuss listings at step
three does not necessarily show the ALJ did not consider those listings; Eleventh
Circuit does not require an ALJ to “mechanically recite” the evidence or listings
considered and the court may infer from the record that the ALJ implicitly considered
and found a claimant’s disability did not meet a listing); Hutchison v. Bowen, 787 F.2d
1461, 1463 (11th Cir. 1986) (“There may be an implied finding that a claimant does not
meet a listing” when the ALJ proceeds to the fourth and fifth steps of the disability
In addition, the ALJ’s determination that Dobbs fails to meet Listing 11.03 has
support in substantial evidence. Dobbs’s medical records reflect he first reported
seizure activity to medical care providers on October 18, 2013. (Tr. 275). Dobbs
related he left work due to dizziness and nausea and went to bed; his wife reported
when he awoke, he stared and his right hand and arm shook. (Tr. 275). Dobbs
averred he had experienced several similar, but not as severe, episodes in the previous
six months. (Tr. 276). By the time Dobbs sought treatment at Brookwood Medical
Center for the October 18 episode, his symptoms had resolved. A CT scan of his head
and a magnetic resonance angiogram of his neck yielded normal results. (Tr. 271, 275,
282, 283). An October 19, 2013, magnetic resonance angiogram of Dobbs’s head
displayed normal except for luminal irregularities in the cortical branches, suggestive of
small vessel disease. (Tr. 267, 282). A brain MRI performed the same day displayed
negative for acute infarction, hemorrhagic or calcified lesions, and parenchymal or
meningeal lesions; only a few, scattered, non-specific white matter lesions appeared on
the imaging, probably due to microvascular angiopathy. (Tr. 269).
By October 20,
2013, Dobbs improved and experienced no further episodes. Dr. Camilo Gomez
diagnosed partial complex seizures and anxiety. (Tr. 278).
Dobbs entered UAB on November 1, 2013, complaining of moderate right side
weakness for the previous two weeks, worsening, and slurred speech beginning that
morning. According to his wife, Dobbs’s episodes manifested with jerking of all
extremities for approximately two minutes, multiple times a day. (Tr. 323, 329). She
denied Dobbs exhibited incontinence or tongue biting. (Tr. 329). Upon examination,
he displayed as alert and oriented, yet confused as to the situation. (Tr. 324, 330). He
exhibited 4/5 strength and slurred speech upon admission, yet he had clear and
coherent speech later in the day. (Tr. 324, 330). A head CT scan exhibited no
intracranial hemorrhage or acute infarction, and an MRI displayed negative results.
(Tr. 324, 329, 335-36).
Dr. Camilo Gomez saw Dobbs on November 7, 2013, and Dobbs reported he
had experienced several additional seizure events resulting in loss of consciousness and
urinary incontinence. (Tr. 286). However, Dobbs exhibited no apparent distress, and
was awake, alert, and displayed a normal gait. Dobbs reported he felt good and he had
a normal physical examination.
(Tr. 287, 290, 291).
Dr. Gomez believed
psychotropic medication Dobbs received from another doctor had exacerbated his
problems, so he discontinued the medication. (Tr. 287, 344). However, during his
visit with Dr. Gomez, Dobbs experienced a seizure and Dr. Gomez sent him to the
hospital. (Tr. 293, 343). While in the hospital, Dobbs informed Dr. Mary Dodson of
almost daily seizures or syncope activity; however, he had a normal physical
examination. (Tr. 293).
Dobbs followed up with Dr. Gomez on December 3, 2013. He reported doing
better and going multiple days without seizures; however, he did experience one seizure
after getting upset. (Tr. 371). Dr. Gomez noted Dobbs tolerated his medications
well, displayed as awake and alert, and ambulated normally without instability. (Tr.
371-72). Dr. Gomez increased Dobbs’s anti-seizure medication (Depakote), opined
he could not return to work until the seizures were well-controlled, and scheduled a
follow-up appointment four weeks later. (Tr. 372).
On January 3, 2014, Dobbs presented to St. Vincent’s emergency room after
suffering a seizure lasting less than one minute with urinary incontinence. He hit his
forehead and his wife reported he suffered three more seizures after that event. He
displayed as lethargic, oriented, cooperative, and with no muscle weakness in his grip,
yet non-verbal. (Tr. 386-88). St. Vincent’s East Hospital admitted Dobbs from the
emergency room after he experienced another seizure in the emergency room; he also
had a seizure upon arrival for admission. (Tr. 402).
A head CT scan displayed
normal except for a sinus infection, and an MRI portrayed no acute disease. (Tr. 394,
401, 419, 424). Dobbs’s EEG exhibited normal results, with no focal lateralized or
epileptiform artifacts, yet the doctors could not rule out convulsive disorder. (Tr. 413).
Dr. Diethelm treated Dobbs during his hospital stay and increased his Depakote
further, after blood tests revealed Dobbs had less than a therapeutic dosage in his
system. (Tr. 403). The hospital discharged Dobbs in good condition. (Tr. 400-01).
Dobbs sought treatment at Brookwood Medical Center on June 21, 2014, for
chest pains after he discontinued Paxil on his own. At that time, his Depakote levels
tested low, but he was not having seizures. Dr. Rick Phillips treated him with Ativan
with good result.
By February 12, 2015, records reflect Dobbs’s
anti-seizure medications included Depakote, Klonopin, and Vimpat. (Tr. 451). The
record contains no further notations of treatment for seizures after January 2014, apart
from medication refills and Dr. Diethelm’s Seizure Residual Functional Capacity
Questionnaire, in which he stated Dobbs reported seizures on March 10, 11, and 12,
Dr. Diethelm completed a Seizure Residual Functional Capacity Questionnaire
on April 15, 2014. (Tr. 436-38). On April 24, 2014, Dr. Diethelm completed a
Residual Functional Capacity Questionnaire. (Tr. 441-42).
Dr. Diethelm reported Dobbs experienced complex partial seizures, without
warning, approximately 10 times per month, lasting one-and-a-half to three minutes
each, and had experienced seizures on March 10, 11, and 12, 2014. After each seizure,
Dobbs exhibited confusion and severe headaches for one to two hours. (Tr. 436). He
identified stress and emotional distress as triggers for seizures. Dr. Diethelm stated the
anti-seizure medication failed to improve Dobbs’s symptoms, despite Dobbs’s
compliance, and the medication could cause side effects of eye focus problems,
lethargy, coordination disturbance, and lack of alertness.
(Tr. 437, 441). 3
Diethelm opined Dobbs’s seizures would disrupt co-workers and require supervision.
(Tr. 437). He also stated Dobbs’s symptoms of head pain, weakness, fatigue, memory
loss, and confusion would constantly interfere with his ability to perform simple,
work-related tasks. (Tr. 441). He limited Dobbs to lifting no more than 10 pounds
occasionally, walking one block at a time, sitting for one hour at a time for four hours in
a work day, and standing ten minutes at a time for less than two hours in a work day.
(Tr. 438, 441-42). He found no limitation in Dobbs’s ability to reach, handle, and
finger. (Tr. 441). Dr. Diethlem also opined Dobbs would need unscheduled breaks
every hour for 15 minutes and would miss work more than four times a month. (Tr.
The record reflects Dobbs denied medication side effects on August 3, 2015. (Tr. 487).
The other medical records, reviewed previously, do not comport with Dr.
Diethelm’s opinion, and furthermore Dr. Diethelm treated Dobbs for only a brief
period. Therefore, the ALJ correctly rejected Dr. Diethelm’s opinion in assessing
Dobbs’s seizure disorder and finding it not disabling for a period of at least 12 months.
Substantial evidence buttresses the ALJ’s decision finding medication sufficiently
controls Dobbs’s seizures such that he does not experience them more than once
The ALJ Correctly Weighed Dr. Diethelm’s Opinion in Finding Dobbs
Fails to Meet Listing 12.04
Dobbs contends the ALJ erred in giving little weight to his treating physician’s
opinion and thus erred in failing to find his mood disorder and major depressive
With regard to treating physicians, the ALJ must give “substantial or
considerable weight” to the opinion of a treating physician “unless ‘good cause’ is
shown.” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2003) (citing Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). Good cause exists when: (1) the
evidence did not bolster the treating physician’s opinion; (2) evidence supported a
contrary finding; or (3) a treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records. Id. An ALJ must clearly articulate the reasons
for affording less weight to a treating physician’s opinions. Id. An ALJ does not
commit reversible error when one, he articulates specific reasons for declining to give
the treating physician’s opinion controlling weight, and two, substantial evidence
supports these findings. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005) (per
To determine the weight given to a medical opinion, an ALJ must consider
several factors, including the examining relationship, the treatment relationship, the
evidence presented to support the opinion, the consistency of the opinion with other
evidence, and the specialization of the medical professional. 20 C.F.R. §404.1527(c); see
Davis v. Comm’r of Soc. Sec., 449 F. App’x 828, 832 (11th Cir. 2011) (stating that the ALJ
will give more weight to the medical opinions of a source who has examined the
plaintiff, and opinions supported by medical signs, findings, and consistency with the
overall “record as a whole”). The ALJ may reject the opinion of any physician when
the evidence supports a contrary conclusion. Hearn v. Comm’r of Soc. Sec., 619 F. App’x
892, 895 (11th Cir. 2015) (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir.
1983)). However, the ALJ must “state with at least some measure of clarity the
grounds for his decision.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir.
2011). This measure of clarity requires the ALJ to state the weight given to each
medical opinion and the reason therefor. Id.
To meet the requirements of a Listing, Dobbs must “have a medically
determinable impairment(s) that satisfies all of the criteria in the listing.” 20 C.F.R.
§ 404.1525(d). The Listings of Impairments in the Social Security Regulations identify
impairments so severe as to prevent a person from engaging in gainful activity. See 20
C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant claims an impairment that equals a
listed impairment, the claimant must present evidence that describes how the
impairment possesses such an equivalency. Armstrong v. Comm’r of Soc. Sec., 546 F. App’x
891, 894 (11th Cir. 2013) (citing Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662
(11th Cir. 1987)). If Dobbs meets a listed impairment or otherwise establishes an
equivalence, the regulations conclusively presume a disability.
See 20 C.F.R.
§ 416.920(d). If an impairment manifests only some of the criteria, then it does not
qualify, no matter how severe the impairment. Nichols v. Comm’r of Soc. Sec., 679 F.
App’x 792, 795 (11th Cir. 2017) (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).
At step three, the ALJ concluded that Dobbs’s impairments do not meet the
criteria for Listing 12.04.
Listing 12.04 establishes the criteria for
affective disorders, 20 C.F.R. § Pt. 404, Subpt. P, App’x 1, §12.04. In relevant part,
Listing 12.04 states:
Affective Disorders. Characterized by a disturbance of
mood, accompanied by a full or partial manic or depressive
syndrome. Mood refers to a prolonged emotion that colors
the whole psychic life; it generally involves either depression
The required level of severity for these disorders is met when
the requirements in both A and B are satisfied, or when the
requirements in C are satisfied.
A. Medically documented persistence, either continuous or
intermittent, of one of the following:
1. Depressive syndrome, characterized by at least
four of the following:
a. Anhedonia or pervasive loss of interest
in almost all activities; or
b. Appetite disturbance with change in
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of
Thus, the paragraph B criteria require a claimant to have at least two of the
following: marked restrictions in activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended
duration. Id. § 12.04(B). “Marked” means “more than moderate but less than extreme;”
marked restriction occurs when the degree of limitation seriously interferes with a
claimant’s ability to function “independently, appropriately, effectively, and on a
sustained basis.” Id. § 12.00(C); see also 20 C.F.R. § 416.920a(c)(4) (describing a
five-point scale used to rate the degree of limitation: none, mild, moderate, marked, and
extreme). “Episodes of decompensation” reflect “exacerbations or temporary increases
in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by
difficulties in performing activities of daily living, maintaining social relationships, or
maintaining concentration, persistence, or pace.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.00(C)(4). To meet the criterion of “repeated” episodes of “extended duration,” a
claimant must have three episodes within one year, or an average of once every four
months, each lasting for at least two weeks. Id.
As regards the paragraph 12.04(C) criteria, the listing requires a medically
documented history of the alleged mental disorder “of at least 2 years’ duration that has
caused more than a minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or psychosocial support,” as well
as one of the following: (1) repeated episodes of decompensation, each of extended
duration; (2) a residual disease process resulting in “such marginal adjustment” that it is
predicted that “even a minimal increase in mental demands or change in the
environment” would cause decompensation; or (3) a current history of at least one
year’s “inability to function outside a highly supportive living arrangement,” with an
indication that this arrangement needs to continue. Id. § 12.04(C).
Dr. Diethelm, a neurologist, treated Dobbs from January 3 to 5, 2014. There is
some indication in the record he saw Dobbs at a six-week follow up appointment (Tr.
436, 511); however, no treatment notes from a later date appear in the record. In a
Mental Capacity Assessment completed April 15, 2014, Dr. Diethelm opined that as a
result of epilepsy and attendant concentration and memory loss, irritability, and
depression, Dobbs displayed extreme limitations in the ability to complete a normal
workday or workweek without interruptions from psychologically based symptoms, as
well as in the ability to interact appropriately with the general public. (Tr. 446).
Dr. Diethelm rated Dobbs with marked limitations in the ability to remember
locations and work-like procedures; understand and remember detailed instructions;
maintain attention and concentration for extended periods; perform activities within a
schedule; maintain regular attendance; be punctual within customary tolerances; sustain
an ordinary routine without special supervision; work in coordination with or in
proximity to others without distraction; make simple, work-related decisions; perform
at a consistent pace; ask simple questions or request assistance; accept instruction and
respond appropriately to supervisors’ criticism; and get along with co-workers or peers
without distracting them or exhibiting behavioral extremes. (Tr. 445-46).
Dr. Diethelm ascribed moderate limitations in Dobbs’s ability to understand and
remember short and simple instructions; carry out detailed instructions; maintain
socially appropriate behavior and adhere to basic standards of neatness and cleanliness;
respond appropriately to changes in the work setting; and be aware of normal hazards
and take appropriate precautions. (Tr. 445-47).
Finally, Dr. Diethelm opined Dobbs portrayed slight limitations in the ability to
carry out short and simple instructions; travel to unfamiliar places or use public
transportation; and set realistic goals or make plans independently of others. (Tr. 445,
447). Dr. Diethelm also expressed Dobbs possessed the capability to manage benefits.
The ALJ gave Dr. Diethelm’s opinion little weight. (Tr. 30). As grounds, he
cited the brief period during which Dr. Diethelm treated Dobbs, as well as
inconsistency between the doctor’s opinion and the other record evidence.
Specifically, the ALJ found his opinions lacked support in corroborating treatment
records and lacked consistency with records demonstrating Dobbs did not experience
further seizure-like activity after his discharge from the hospital on January 5, 2014.
(Tr. 30). In fact, the ALJ noted Dobbs failed to follow up with Dr. Diethelm after his
discharge, and no medical records document additional seizures after January 5, 2014,
This opinion stands in sharp contrast to the opinions of Dobbs and Dobbs’s wife, both of whom
stated in function reports that Dobbs cannot pay bills or handle a checkbook or savings account due to
forgetfulness. (Tr. 219, 227).
leading the ALJ to conclude medication controls his complex partial epilepsy.5 (Tr.
29). The ALJ rejected Dr. Diethelm’s Mental Capacity Assessment as inconsistent
with treating source records reflecting only moderate symptoms, and, moreover,
Dobbs’s mental RFC assessment did not fall within his specialty (neurology). (Tr. 30).
The ALJ found Dobbs exhibits mild restriction in activities of daily living. (Tr.
24). He based this finding on Dobbs’s testimony that he lives alone, has no problems
with personal care and hygiene, prepares simple meals, drives to the store, and shops for
medicine and food once or twice a week.
The ALJ ascribed moderate restriction in social functioning. (Tr. 24-25). He
noted Dobbs spends time with others and sees his wife or son on their daily visits. He
frequently spends time visiting with his grandchildren and attends church three times a
week. Dobbs testified he experiences difficulty getting along with family, friends,
neighbors, authority figures, and others because he feels they watch the way he speaks
or walks; however, he also testified he loves to talk with other people and gets along well
The ALJ determined Dobbs exhibits mild difficulties with concentration,
persistence, or pace. (Tr. 25). Dobbs testified he can pay attention for only short
periods of time and does not finish things he starts. He also reported inability to
Dr. Diethelm wrote in his Seizure Residual Functional Capacity Questionnaire that Dobbs reported
additional seizures on March 10, 11, and 12, 2014; however, the record contains no records reflecting
treatment for seizures after January 2014, apart from medication.
follow written instructions and difficulty with spoken instructions, as well as
impediments in handling stress and changes in routine. Yet, treating source psychiatric
records reflect Dobbs exhibits a “satisfactory” attention span and intact memory,
attention, and concentration. (Tr. 364).
The ALJ also found Dobbs experienced no episodes of decompensation of
extended duration. (Tr. 25). He also has no diagnosis of any residual disease process
which would cause decompensation with only minimal increases in mental demands.
The ALJ noted Dobbs did not require a highly supportive living environment and has
not displayed an inability to function outside of his home. (Tr. 25).
The ALJ cited the opinion of treating psychiatrist Dr. Dieter Bartschat, who
diagnosed Dobbs with mood disorder secondary to a medical condition. (Tr. 27, 364).
Dr. Bartschat observed Dobbs behaved in a friendly and engageable manner; dressed
appropriately; denied delusions, hallucinations, or suicidal or homicidal ideation; and
displayed full orientation and appropriate and congruent affect, despite reporting
depression and anveity. (Tr. 364). He assessed Dobbs with a GAF of 55, indicating
moderate symptoms or difficulty in social or occupational functioning. 6 (Tr. 364).
Dobbs received treatment at Brookwood Medical Center commencing June 10,
2014, for a possible overdose after family members reported Dobbs ingested an
A Global Assessment of Functionality (GAF) score is a subjective determination that represents “the
clinician’s judgment of the individual’s overall level of functioning.” Am. Psychiatric Ass’n, Diagnostic
and Statistical Manual of Mental Disorders 32 (4th ed. Text Revision 2000). A GAF score of 51–60
indicates moderate impairments. Id. at 34.
unknown amount of Klonopin; Dobbs remarked he only drank a large amount of
alcohol. Toxicological testing exhibited no evidence Dobbs ingested Klonopin or
other such medication, despite his report he took his medicine as prescribed. (Tr. 522).
Dobbs conveyed at that time his sleep, appetite, and energy were good, and he denied
feeling suicidal, hopeless, helpless, or worthless.
Dr. Misty Ary
diagnosed depressive disorder and alcohol dependence. (Tr. 521). By the time of his
discharge on June 17, 2014, Dobbs exhibited a euthymic mood and congruent affect,
with no activity restrictions imposed. (Tr. 521, 526).
After discharge, Dobbs sought mental health treatment at Chilton Shelby Mental
Health Center starting June 23, 2014. (Tr. 501-09). He received diagnoses of major
depressive disorder, recurrent, severe, without psychotic features, and alcohol abuse.
(Tr. 508). On September 8, 2014, Dobbs exhibited appropriate grooming, good eye
contact, no orientation or remote memory deficits, sad mood, blunted affect, and poor
insight and judgment. (Tr. 498-99). By October 20, 2014, he reported doing relatively
well, other than occasional difficulty with sleep.
He displayed no deficits in
orientation, recent memory, or remote memory, a euthymic mood, and fair insight and
judgment. (Tr. 495). Dobbs’s next visit on March 23, 2015, reflected no deficits in
orientation, recent memory, or remote memory, yet a depressed affect and poor insight
and judgment. (Tr. 492-93). By June 22, 2015, his orientation, recent memory, and
remote memory remained intact, yet he displayed a depressed mood, and fair insight
and judgment after extreme relationship difficulties and increased alcohol consumption.
(Tr. 489-90). Additional treatment records portray Dobbs’s depression relatively
well-controlled with medication. (19F, 20F).
After a visit to Quality of Life Health Services on February 12, 2015, Dr. Stacy
Moore’s notes reflect Dobbs denied difficulty concentrating, excessive worry,
hopelessness, impaired judgment, or anhedonia. Therefore, medication sufficiently
controlled Dobbs’s depression. (Tr. 453, 455). Dobbs’s depression had worsened by
June 22, 2015, due to relationship difficulties, manifesting as anger with increased
alcohol consumption. (Tr. 489). He nonetheless displayed appropriate attention,
goal-directed and appropriate thought content, and fair insight and judgment. (Tr.
Grandview Medical Center admitted Dobbs for inpatient psychiatric treatment
on December 17, 2015. Upon discharge the following day, Dr. Davis Harvey noted
Dobbs displayed as “much improved.” (Tr. 598). Dr. Harvey recommended Dobbs
follow up with his local mental health care provider; however, the record contains no
further notes of treatment.
The ALJ accorded substantial weight to the opinions of consulting psychologist
Dr. Steven Dobbs and consulting physician Dr. Krishna Reddy. (Tr. 29, 30). Dr.
Reddy opined Dobbs’s affective disorder would cause mild restrictions in activities of
daily living, moderate difficulties in social functioning, and mild difficulties with
maintaining concentration, persistence, and pace. She discerned no repeated episodes
of decompensation for extended duration.
She cited medical records
establishing Dobbs exhibited logical thoughts, satisfactory attention, and undisturbed
memory. (Tr. 91). Dr. Reddy also determined Dobbs’s seizures would improve over
time with continued medical care and compliance. (Tr. 94).
Dr. Dobbs opined Dobbs displays no understanding and memory limitations,
and no sustained concentration and persistence limitations. (Tr. 95). He assessed
Dobbs with moderate limitations on his ability to interact appropriately with the general
public, accept instructions and respond appropriately to criticism from supervisors, and
get along with coworkers without distracting them or exhibiting behavioral extremes.
(Tr. 95). Dr. Dobbs found no significant limitations on Dobbs’s ability to ask simple
questions or request assistance, or maintain socially appropriate behavior and hygiene.
The ALJ relied in part on the inconsistency between Dr. Diethelm’s opinion that
Dobbs exhibited severe or marked limitations and the records from other treating
sources finding he exhibited, at most, moderate limitations.
He also cited Dr.
Diethelm’s lack of specialization in psychiatry as a reason for according little weight to
his opinion. See 20 C.F.R. § 404.1527(d)(5) (“We generally give more weight to the
opinion of a specialist about medical issues related to his or her area of specialty than to
the opinion of a source who is not a medical specialist.”); Brown v. Comm’r of Soc. Sec., 425
F. App’x 813, 818-19 (11th Cir. 2011) (psychologist’s opinion that claimant was unable
to work due to physical problems properly given little weight). Having given specific
and well-supported reasoning for giving Dr. Diethelm’s opinion little weight, the ALJ’s
opinion rests upon substantial evidence.
The ALJ Did Not Err in Accepting the VE’s Testimony
Dobbs contends his assigned RFC does not correspond to the job descriptions
for the jobs identified by the VE: ticket marker and courier within a building. The
ALJ included within non-exertional limitations that Dobbs should work in close
proximity to coworkers and supervisors so they could monitor him for potential
unplanned seizure activity. Nonetheless, Dobbs avers the job descriptions in the
Dictionary of Occupational Titles (DOT) reflect one performs these jobs in relative
At Step Five, the burden shifts to the Commissioner “to show the existence of
other jobs in the national economy which, given the claimant’s impairments, the
claimant can perform.” See 20 C.F.R. § 404.1520(a)(4)(v); Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987).
For a vocational expert’s (VE) testimony to constitute
substantial evidence, the ALJ must present a hypothetical question that “comprises all
of the claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002).
The claimant must refute the Commissioner’s findings that the claimant can perform
other work by proving he or she cannot perform the suggested jobs. Williams v.
Barnhart, 140 F. App’x 932, 937 (11th Cir. 2005); Long v. Shalala, 902 F. Supp. 1544, 1546
(M.D. Fla. 1995) (citing Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)).
“If the ALJ consults a VE, the VE’s testimony will constitute substantial
evidence if the ALJ ‘pose[s] a hypothetical question which comprises all of the
claimant’s impairments.’” Jones v. Comm’r of Soc. Sec., 423 F. App’x 936, 938 (11th Cir.
2011) (quoting Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)). In addition, “when
the VE’s testimony conflicts with the DOT, the VE’s testimony ‘trumps’ the DOT.”
Jones v. Comm’r of Soc. Sec., 423 F. App’x at 938 (citing Jones v. Apfel, 190 F.3d at 1229–30).
In this case, the ALJ posed a hypothetical to the VE comprising all of Dobbs’s
impairments and non-exertional limitations which he included in Dobbs’s RFC in his
Because the VE used that hypothetical in describing jobs Dobbs can
perform, with positions available in the local and national economies, the ALJ’s opinion
has support in substantial evidence.
Based on the foregoing analysis, the court AFFIRMS the Commissioner’s
decision. The court will enter a separate order in conformity with this Memorandum
DONE this 14th day of September, 2018.
HERMAN N. JOHNSON, JR.
UNITED STATES MAGISTRATE JUDGE
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