Pleasant v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 8/15/16. (MRR, )
2016 Aug-15 AM 11:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JENNIFER LYNN PLEASANT,
CAROLYN W. COLVIN,
Commissioner of Social Security,
Case No. 3:15-cv-01355-TMP
The plaintiff, Jennifer Lynn Pleasant, appeals from the decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying
her application for a period of disability and Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”). Ms. Pleasant timely pursued and
exhausted her administrative remedies and the decision of the Commissioner is
ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Ms. Pleasant was forty years old on her alleged onset date, and she has the
equivalent of a high school education. (Tr. at 29). Her past work experience
includes employment as a chicken processing plant worker, salad bar attendant,
cook, and shift manager at a fast-food restaurant. (Tr. at 28). Ms. Pleasant claims
that she became disabled on April 19, 2011, due to fibromyalgia, scoliosis in her
upper back, diabetes, high blood pressure, acid reflux, anemia, high cholesterol,
fluid on her left knee, chostochonritis, and bursitis in her left shoulder. (Tr. at
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
she is, the claimant is not disabled and the evaluation stops. Id. If she is not, the
Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends on the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant’s impairments are not severe, the analysis stops.
It should be noted that the Claimant did not list depression or anxiety on her Adult Disability
Report among the list of medical conditions limiting her ability to work. (Tr. at 149).
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
Otherwise, the sequential analysis
continues to step three, which is a determination of whether the claimant’s
impairments meet or equal the severity of an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the claimant’s impairments fall within this category, she will be found disabled
without further consideration. Id. If they do not, a determination of the claimant’s
residual functional capacity will be made and the analysis proceeds to the fourth
20 C.F.R. §§ 404.1520(e), 416.920(e).
Residual functional capacity
(“RFC”) is an assessment, based on all relevant evidence, of a claimant’s
remaining ability to do work despite his or her impairments.
The fourth step requires a determination of whether the claimant’s
impairments prevent her from returning to past relevant work.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant’s RFC, as well as the
claimant’s age, education, and past work experience, in order to determine if she
can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the
claimant can do other work, the claimant is not disabled. Id. The burden is on the
Commissioner to demonstrate that other jobs exist which the claimant can
perform; and, once that burden is met, the claimant must prove her inability to
perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ determined that Ms.
Pleasant has not engaged in substantial gainful activity since the alleged onset of her
disability in 2011. (Tr. at 23). According to the ALJ, Plaintiff’s fibromyalgia with
chronic pain syndrome, coronary artery disease status post-stent placement,
hypertension, diabetes mellitus, and obesity are considered “severe” based on the
requirements set forth in the regulations. (Id.) The plaintiff also suffers from nonsevere impairments of mild scoliosis, gastroesophageal reflux disease (“GERD”),
hyperlipidemia, anemia, depression, and anxiety. (Tr. at 24). However, the ALJ
found that these impairments neither meet nor medically equal any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 25). Although
the ALJ found that her medical conditions were of the type that one could
reasonably expect to cause pain, he determined that Ms. Pleasant’s claims
regarding the intensity and limiting effects of her impairments were not fully
credible. (Tr. at 28). He determined that the plaintiff had the RFC to perform
“the full range of sedentary work, as defined in 20 CFR 404.1567(a) and
416.967(a).” (Tr. at 26).
According to the ALJ, Ms. Pleasant is unable to perform any of her past
relevant work. (Tr. at 28). The plaintiff is a younger individual, has the equivalent
of a high school education, and is able to communicate in English, as those terms
are defined by the regulations.
(Tr. at 29).
The ALJ determined that
transferability of job skills is not material to the determination of the plaintiff’s
case. (Id.) The ALJ determined that there are a significant number of jobs in the
national economy that the plaintiff is capable of performing and “considering the
claimant’s age, education, and work experience, a finding of ‘not disabled’ is
directed by Medical-Vocational Rule 201.28.” (Tr. at 29).
The ALJ concluded
his findings by stating that the plaintiff “has not been under a disability, as defined
in the Social Security Act, from April 19, 2011,” to January 2, 2014, the date of the
ALJ’s decision. (Tr. at 29-30).
Standard of Review
This court’s role in reviewing claims brought under the Social Security Act
is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not decide
facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id.
“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177,
1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Federal Mar.
Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this court finds that the
evidence preponderates against the Commissioner’s decision, the court must
affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400.
No decision is automatic, however, for “despite this deferential standard [for
review of claims] it is imperative that the Court scrutinize the record in its entirety
to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815
F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal
standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.”
20 C.F.R. §§ 404.1527(e), 416.927(d).
plaintiff meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
disagree with the ALJ about the significance of certain facts, the court has no power
to reverse that finding as long as there is substantial evidence in the record
The Claimant asserts two grounds for reversal of the ALJ’s decision. Ms.
Pleasant argues that the ALJ’s decision should be reversed and remanded because
the ALJ erred in not determining that the plaintiff’s anxiety and depression were
“severe” impairments at step two of the sequential analysis. She also argues that
the ALJ had a duty to expand the record if he had any questions regarding the
plaintiff’s anxiety and depression.
A. Severe Impairments
In addition to the other medical conditions identified by her, the plaintiff
claims that she suffers from anxiety and depression, which have been treated with
medication in the past, and that these impairments should have been designated
“severe” by the ALJ. The ALJ addressed the plaintiff’s claims of anxiety and
depression as follows:
The undersigned recognizes that there is some evidence of mental
health problems in the record (Exhibits 14F and 15F). It appears that
the claimant has been treated for depression and anxiety by her
primary care provider with Valium and Ambien. The claimant is
prescribed Cymbalta for fibromyaligia symptoms as opposed to mental
health symptoms. There is no evidence of psychiatric hospitalization.
In July 2013, the claimant contacted Lakeview Center complaining of
symptoms of depression and anxiety. On August 1, 2013, she had an
assessment screening by Donna Englehart, MS, LMHC (Licensed
Mental Health Counselor), who is not an acceptable medical source
under our regulations. Based entirely upon the claimant’s subject [sic]
account of her symptoms during an interview and mental status
examination, Ms. Englehart assessed the claimant with bipolar
disorder, most recent episode depressed, severe, with psychotic
features. She found a Global Assessment of Functioning of 48,
meaning moderately severe symptoms and impairments. The
claimant was encourage [sic] to have counseling, but declined to do so.
Ms. Englehart’s findings are not consistent with or supported by the
record as a whole, which includes no other evidence of mental health
treatment other than routine and conservative treatment by the
claimant’s primary care provider and no diagnosis of bipolar disorder
by an acceptable medical source. The claimant submitted an
October 13, 2012 Function Report, which indicated no limitations
related to mental health symptoms (Exhibit 4E). Giving the claimant
the benefit of doubt, the undersigned has considered depression and
anxiety as non-severe impairments. These impairments have not
caused more than minimal limitation in the claimant’s ability to
perform basic mental work activities. In making this finding, the
undersigned has considered the four broad functional areas set out in
the disability regulations for evaluating mental disorders and in section
12.00C of the Listing of Impairments (20 CFR, Part 404, Subpart P,
Appendix 1). These four broad functional areas are known as the
“paragraph B” criteria. The first functional area is activities of daily
living. In this area, the claimant has no limitation. The next
functional area is social functioning. In this area, the claimant has no
limitation. The third functional area is concentration, persistence, or
pace. In this area, the claimant has no limitation. The fourth
functional area is episodes of decompensation. In this area, the
claimant has experienced no episodes of decompensation which have
been of extended duration.
Because the claimant’s medically determinable mental impairments
cause no more than “mild” limitation in any of the first three
functional areas and “no” episodes of decompensation which have
been of extended duration in the fourth area, they are non-severe (20
CFR 404.1520a(d)(1) and 416.920a(d)(1)). The limitations identified
in the “paragraph B” criteria are not a residual functional capacity
assessment but are used to rate the severity of mental impairments at
steps 2 and 3 of the sequential evaluation process. The mental
residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the
Listing of Impairments (SSR 96-8p). Therefore, the following residual
functional capacity assessment reflects the degree of limitation the
undersigned has found in the “paragraph B” mental function analysis.
(Tr. at 24-25).
The treatment of the plaintiff for depression and anxiety is addressed
intermittently throughout her medical records. However, when applying for DIB
and SSI, the plaintiff did not allege that anxiety or depression impaired her ability
to work. (Tr. at 62). The disability report, which specifically directed the plaintiff
to “[l]ist all of the physical or mental conditions (including emotional or learning
problems) that limit your ability to work,” failed to list any mental impairments.
(Tr. at 148-49). When the plaintiff completed her list of medications, she stated
that she was prescribed Valium “to help sleep,” and that she was prescribed
Cymbalta to treat her fibromyalgia, not for the treatment or depression or anxiety.
(Tr. at 152). When the plaintiff completed the disability report for her appeal, she
listed “problems with my sciatica causing numbness in left leg” as the only change
in her illnesses or conditions. (Tr. at 168). The plaintiff did not include Valium on
her appeals medication list, and again stated that she was on Cymbalta as treatment
for fibromyalgia. (Tr. at 170).
The plaintiff’s medical records from Shoals Hospital on October 31, 2010,
note her past medical history as diabetes, hypertension, previous Caesarian
Section, cholecystectomy, and ventral hernia repair. (Tr. at 223). The medications
reported do not include anxiety or depression medications. (Id.) Later, records
from Rheumatology Associates of North Alabama, P.C. note that she had been
diagnosed with fibromyalgia and that she was prescribed Cymbalta for treatment of
fibromyalgia. (Tr. at 259). The plaintiff’s Baptist Hospital triage sheet from
September 26, 2011, does not note anxiety or depression on her medical history,
and her records from Baptist Hospital on October 10, 2011,2 listed depression, but
not anxiety as part of the plaintiff’s medical history. (Tr. at 275, 279, 280).
Medical records from Escambia Community Clinics dated September 12,
2011, state that the plaintiff was prescribed Cymbalta, but not Valium. (Tr. at 315).
Records from The Cardiovascular Institute of the Shoals dated May 31, 2011,
indicate that the plaintiff was negative for anxiety, depression, memory change, and
bipolar disorder. (Tr. at 324-25). Her medications included Cymbalta, but not
Valium. (Tr. at 325). The plaintiff’s emergency room records from North Baldwin
Hospital dated February 23, 2012, indicate that the plaintiff had a normal mood and
affect and that she was negative for anxiety and depression. (Tr. at 343). The
notations regarding depression, anxiety, and mood were the same in the plaintiff’s
North Baldwin Records from December 12, 2011; July 7, 2012; August 31, 2012;
October 15, 2012; November 7, 2012; and December 8, 2012. (Tr. at 340, 345, 356,
The date is only partially legible.
386, 398, 442). Finally, the plaintiff’s North Baldwin Hospital emergency room
records from December 17, 2012, appear to indicate a history of anxiety, but also
note that the plaintiff’s mood and affect were normal at the time of treatment. (Tr.
The plaintiff’s discharge summary from Thomas Hospital on August 1, 2011,
makes no mention of depression or anxiety.
(Tr. at 475-77).
medication list” from the same date does not list Cymbalta, Valium, or similar
medications. (Tr. at 503). The plaintiff’s December 20, 2012, medical records
from Thomas Hospital indicate that the plaintiff was not currently, nor had she
ever been, treated for an emotional or behavioral disorder. (Tr. at 617). The
records noted that the plaintiff did not have a complaint or diagnosis relating to
emotional or behavioral disorders, had not ever had thoughts of harming herself,
and did not currently have thoughts of harming herself.
(Tr. at 618).
medications list from that date includes Cymbalta, but not Valium or other
depression or anxiety medications. (Tr. at 624-26).
The plaintiff’s records from Franklin Primary Health Center dated
December 31, 2012, state that the plaintiff suffers from chronic depression. (Tr. at
629, 631). Later, however, the records state that the plaintiff is positive for anxiety
but negative for depression. (Tr. at 630). The plaintiff was admitted to West
Florida Healthcare on April 27, 2013. (Tr. at 719). Her medical history included
anxiety with depression. (Tr. at 720). The plaintiff’s April 29, 2013, discharge
report does not list depression or anxiety as a diagnosis, but does list Zoloft as one
of the plaintiff’s medications. (Tr. at 648-49). The plaintiff’s June 20, 2013,
records from Escambia Community Clinics note that the plaintiff suffers with
anxiety and has been taking Valium to treat it. (Tr. at 655).
The plaintiff was assessed by Donna Englehart, MS, LMHC, at Lakeview
Center Baptist Health Care on July 17, 2013. (Tr. at 668). The plaintiff arrived at
the office complaining of depression, anxiety, and agitation. (Id.) The records
further state that she was suffering from mood and psychotic disorders, and her key
symptoms were anhedonia, hopelessness, anxiety, and panic, and that the plaintiff
had a history of suicide attempts. 3 (Tr. at 669). The plaintiff was not experiencing
current suicidal ideation, and her risk level was determined to be low. (Tr. at 670).
Englehart diagnosed the plaintiff with bipolar disorder along with severe depression
with psychotic feature and anxiety disorder.
Although the plaintiff, relying heavily on Englehart’s diagnosis, contends
that the plaintiff’s anxiety and depression causes “more than a minimal limitation
of the claimant’s ability to perform basic mental work activities” (doc. 6), the
It was clarified that the plaintiff “tried overdosing as a teenager but no hospitalizations are
reported.” (Tr. at 672).
argument is not consistent with the record as a whole. The plaintiff did not allege
that her anxiety or depression are reasons that she is unable to work, and, she did
not testify to such at the ALJ’s hearing. Except for the evaluation by Englehart, the
plaintiff’s medical records do not indicate that the plaintiff complained to her
doctors that her anxiety or depression were unmanageable or had a significant
impact on her ability to perform work or life activities.
The weight to be afforded a medical opinion regarding the nature and
severity of a claimant’s impairments depends, among other things, upon the
examining and treating relationship the medical source had with the claimant, the
evidence the medical source presents to support the opinion, how consistent the
opinion is with the record as a whole, and the specialty of the medical source. See
20 C.F.R. §§ 404.1527(d), 416.927(d). Furthermore, “good cause” exists for an
ALJ not to give a treating physician’s opinion substantial weight when the: “(1)
treating physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d
1232, 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also Edwards v.
Sullivan, 937 F.2d 580, 583-84 (11th Cir. 2004) (holding that “good cause” existed
where the opinion was contradicted by other notations in the physician’s own
Any medical source’s opinion can be rejected where the evidence
supports a contrary conclusion. See, e.g., McCloud v. Barnhart, 166 Fed. App’x 410,
418-19 (11th Cir. 2008).
The ALJ clearly addressed his reasoning for not giving
greater weight to Englehart’s opinion. The court is of the opinion that the ALJ had
good cause to disregard Englehart’s assessment of the plaintiff, and to find that the
plaintiff’s depression and anxiety were non-severe impairments. See Phillips, 357
F.3d at 1240-41. 4
B. Duty to Expand the Record
The plaintiff argues that, “[a]t the very least, the ALJ had a duty to fully
develop the record, which in this case would include ordering a psychological
consultative examination.” (Doc. 10, p. 8). The ALJ’s duty to develop the record
is not triggered when the record contains sufficient evidence to make an informed
decision. Ingram v. Commissioner of Social Security, 496 F.3d 1253, 1269 (11th Cir.
2007). The Eleventh Circuit has determined that a consultative examination must
be ordered if one is needed to make an informed decision regarding the claimant’s
disability. Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984), citing Ford v.
Secretary of Health and Human Servs., 659 F.2d 66, 69 (5th Cir. 1981) (Unit B). An
To the extent that the plaintiff argues that the ALJ erred at step two of the sequential analysis,
it is clear that he found that she suffered from severe impairments (if not including anxiety and
depression) and the analysis proceeded to the next step. The finding of a severe impairment,
allowing the sequential analysis to proceed to step three, moots any concern about the
assessment of the severity or non-severity of impairments at that stage of the analysis.
ALJ may request a consultative examination “to secure needed medical evidence,
such as clinical findings, laboratory tests, a diagnosis, or prognosis” if the record
indicates “a change in [the claimant’s] condition that is likely to affect [the
claimant’s] ability to work, but the current severity of [the claimant’s] impairment
is not established.” 20 C.F.R. § 404.1519a(b)(4).
However, if the record is sufficiently developed for the ALJ to make a
determination, it is not necessary for the ALJ to order an additional consultative
examination or to expand the record. Good v. Astrue, 240 Fed. Appx. 399, 403-404
(11th Cir. 2007). In the instant case, the ALJ had available to him years of the
plaintiff’s medical records as well as disability reports completed by the plaintiff
and the plaintiff’s own testimony. The record was sufficiently developed to allow
the ALJ to determine which of the plaintiff’s impairments are severe without
seeking an additional consultative examination or further information from
The ALJ’s determination is supported by substantial evidence and was both
comprehensive and consistent with the applicable SSA rulings. Upon review of the
administrative record, and considering all of Ms. Pleasant’s arguments, the
Commissioner’s decision is due to be and hereby is AFFIRMED and the action is
DISMISSED WITH PREJUDICE.
DONE this 15th day of August, 2016.
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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