Jemison v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 8/22/2018. (KAM)

FILED
2018 Aug-22 PM 03:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MISTY ANN JEMISON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Civil Action No. 3:17-cv-01545-JEO

MEMORANDUM OPINION
Plaintiff Misty Ann Jemison brings this action pursuant to 42 U.S.C. §
405(g), seeking review of the final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying her disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) benefits. (Doc. 1). 1 The case has been
assigned to the undersigned United States Magistrate Judge pursuant to this court’s
general order of reference. The parties have consented to the jurisdiction of this
court for disposition of the matter. See 28 U.S.C. § 636(c), FED. R. CIV. P. 73(a).
(Doc. 9). Upon review of the record and the relevant law, the undersigned finds
that the Commissioner’s decision is due to be affirmed.

1

References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of
the Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.

I. PROCEDURAL HISTORY
Plaintiff first filed for DIB on July 30, 2009, alleging disability since June
15, 2009. She also filed for SSI on August 17, 2009. In a decision dated
December 21, 2010, an administrative law judge (“ALJ”) found Plaintiff not
disabled. (R. 1155).2 The Appeals Council (“AC”) reviewed this decision and
found that the ALJ failed to adequately address certain opinion evidence and
Plaintiff’s mental residual functional capacity and vacated and remanded the
decision on May 31, 2011. (Id.). On September 14, 2012, the previous ALJ found
again that Plaintiff was not disabled. (Id.). The AC denied Plaintiff’s request for
review on May 20, 2014. (Id.). Plaintiff appealed to the United States District
Court for the Middle District of Alabama, Northern Division and on February 10,
2015, that Court found that the ALJ failed to fully develop the record regarding
Plaintiff’s impairments, failed to consider Plaintiff’s inability to afford medical
treatment, and failed to adequately resolve conflicting reports of the physicians
regarding the need for medications. (R. 1155-56). The Court reversed the hearing
decision and remanded the case to the Commissioner. (Id.). On May 31, 2017,
another ALJ decided for a third time that Plaintiff is not disabled. (R. 1198). The

2

References herein to “R. __” are to the administrative record found at Docs. 7-1 through
7-29 in the court’s record.
2

AC denied Plaintiff’s request for review on July 31, 2017. (Doc. 1 at 1).
II. FACTS
Plaintiff was 41 years old at the time of the ALJ’s decision that is under
review. (R. 1163). She has completed high school and she has taken three or four
college courses. (Id.) She previously worked as a clerk and bookkeeper. (R.
1196). She alleges disability due to various medical issues including neck and
back pain, headaches, bipolar disorder, anxiety, and depression. (R. 354).
Following Plaintiff’s administrative hearing, the ALJ found that she had the
medically determinable severe impairments of mild osteoarthritis with disc bulge
of the cervical spine; mild multi-level degenerative disc disease of the lumbar
spine; chronic obstructive pulmonary disease; obesity; bipolar disorder; personality
disorder; and anxiety/panic disorder/obsessive compulsive disorder. (R. 1158).
She also found that Plaintiff did not have an impairment or combination of
impairments that met or equaled the severity of a listed impairment. (R. 1159).
She further found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work with limitations. (R. 1162). She determined that Plaintiff
could not perform her past relevant work but could perform the requirements of
representative occupations such as a garment sorter, folder, or small parts
assembler. (R. 1197). The ALJ ultimately concluded that Plaintiff was not
3

disabled. (Id.).
III. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the
Commissioner’s decision is supported by substantial evidence and whether proper
legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct.
1420, 1422 (1971); Mitchell v. Comm’r Soc. Sec., 771 F.3d 780, 782 (11th Cir.
2015); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). 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). Substantial evidence is “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. It is
“more than a scintilla, but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If
the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
4

analysis has been conducted, it must reverse the ALJ’s decision. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). The court must affirm the
ALJ’s decision if substantial evidence supports it, even if other evidence
preponderates against the Commissioner’s findings. See Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990)).
IV. STATUTORY AND REGULATORY FRAMEWORK
To qualify for benefits a claimant must show the inability to engage in “any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 1382c(a)(3)(A). A physical or mental impairment is “an impairment that
results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 1382c(a)(3)(D).
Determination of disability under the Social Security Act requires a five step
analysis. 20 C.F.R. § 416.920(a)(4). Specifically, the Commissioner must
determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
5

activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014). 3 The
claimant bears the burden of proving that she was disabled within the meaning of
the Social Security Act. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005);
see also 20 C.F.R. §§ 404.1520(a), 416.920(a). The applicable “regulations place a
very heavy burden on the claimant to demonstrate both a qualifying disability and
an inability to perform past relevant work.” Id.
V. DISCUSSION
Plaintiff asserts that the ALJ erred in that she (1) failed to pose a complete
hypothetical question to the vocational expert (“VE”) and (2) failed to properly
credit (a) the side effects of Plaintiff’s prescribed medication upon her ability to
work and (b) Dr. Nicholas Pantaleone’s opinion regarding the same. (Doc. 10 at 45). More specifically, Plaintiff argues that the ALJ failed to include all of
Plaintiff’s limitations in the hypothetical question and did not provide adequate
rationale with respect to the effects and resulting limitations imposed by her
3

Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
6

medications. (Id. at 11, 13). The Commissioner argues that the ALJ properly
evaluated Plaintiff’s limitations when posing the hypothetical question, credited
the medication side effects, and found that substantial evidence supports the
conclusion that Plaintiff is not disabled. (Doc. 12 at 4).
A.

Incomplete Hypothetical

Plaintiff bears the burden of proving that she is disabled within the meaning
of the Social Security Act. See 20 C.F.R. § 419.912(a) & (c); Moore, 405 F.3d at
1211; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). Specifically,
Plaintiff must provide evidence of an underlying medical condition and either
objective medical evidence confirming the severity of the alleged symptoms or that
the medical condition could be reasonably expected to give rise to the alleged
symptoms. See 20 C.F.R. § 419.929; Dyer v. Barnhart, 359 F.3d 1206, 1210 (11th
Cir. 2005); Wilson, 284 F.3d at 1225-26; Edwards v. Sullivan, 937 F.2d 580, 584
(11th Cir. 1991). In analyzing the evidence, the focus is on how an impairment
affects Plaintiff’s ability to work, and not on the impairment itself. See 20 C.F.R. §
416.929(c)(1); McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)
(“severity of … a disability … must be measured in terms of its effect upon ability
to work, and not simply in terms of deviation from purely medical standards of
bodily perfection or normality”).
7

Plaintiff first argues that the VE’s testimony is flawed in that it was
premised upon an incomplete hypothetical question. (Doc. 10 at 11). Specifically,
Plaintiff argues that the hypothetical posed by the ALJ did not include Dr. Larry H.
Dennis and Dr. Arnold Mindingall’s full opinions. (Id. (citing R. 1162 & 123031)). The Commissioner responds that Plaintiff has failed to show that the medical
or opinion evidence warranted any greater restrictions than what the ALJ assessed
in her RFC finding. (Doc. 12 at 22). The court agrees.
“In order for a VE’s testimony to constitute substantial evidence, the ALJ
must pose a hypothetical question which comprises all of the claimant’s
impairments.” Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). “If the ALJ
presents the vocational expert with incomplete hypothetical questions, the
vocational expert’s testimony will not constitute substantial evidence.” Jacobs v.
Comm’r of Soc. Sec., 520 F. App’x 948, 950 (11th Cir. 2013) (citing Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1180-81 (11th Cir. 2011)).
The hypothetical posed to the VE by the ALJ in this case includes, in
pertinent part, refers to an individual who could perform light work except that the
person can only have occasional interaction with supervisors, coworkers and the
public and should have occasional changes in the routine work setting. (R. 1230).
Plaintiff asserts this hypothetical is inadequate because it did not include the
8

complete opinions of Drs. Dennis and Mindingall regarding Plaintiff’s moderate
limitations with respect to completing a normal work-day without interruptions;
interacting with others, including supervisors; and sustaining concentration and
persistence. (Doc. 10 at 9). Additionally, she argues that as a result of her
moderate deficiencies in these areas she would miss one to two days of work per
month due to exacerbation of her psychiatric symptoms. (Id.). The Commissioner
responds that while the ALJ did not adapt the exact limitations in the opinions of
Drs. Dennis and Mindingall, she did use the opinions along with other evidence in
the record to pose a hypothetical that incorporated Plaintiff’s acknowledged
limitations. (Doc. 12 at 7).
First, the evidence shows that Dr. Dennis opined in November 2009 that
Plaintiff’s medically severe mental impairments would cause her to be moderately
limited in her ability to (1) understand, remember, and carry out detailed
instructions; (2) maintain attention and concentration for extended periods; (3)
perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; (4) work in coordination with or proximity to others
without being distracted by them; (5) complete a normal work-day and workweek
without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number of lengthy rest periods; (6)
9

interact appropriately with the public; (7) accept instructions and respond
appropriately to criticism from supervisors; (8) get along with coworkers or peers
without distracting them or exhibiting behavioral extremes; (9) respond to changes
in the work setting; and (10) set realistic goals or make plans independently of
others. (R. 848-49). In expressing Plaintiff’s specific work-related limitations Dr.
Dennis stated that Plaintiff “could understand and remember simple instructions,
but not detailed ones,” “could carry out simple instructions and sustain attention to
simple and familiar tasks for extended periods, “could tolerate ordinary work
pressures, but should avoid excessive workloads, quick decision making, rapid
changes and multiple demands,” “could adapt to infrequent, well explained
changes,” and could “set ordinary daily work goals, but may need assistance with
complex goals and planning.” (R. 850). Dr. Dennis also noted that Plaintiff would
benefit from a flexible schedule and would be expected to miss 1-2 days of work
per month due to bipolar, depression and possible substance abuse.” (Id.). Finally,
he noted that Plaintiff “would function best with her own work area/station without
close proximity to others.” (Id.).
Dr. Mindingall similarly noted the same moderate limitations concerning
Plaintiff in March 2011. (R. 1071-72). He also stated that Plaintiff would be able
to handle simple instructions and simple tasks, would be expected to miss one to
10

two days of work each month due to psychiatric symptoms, should have only
casual interaction with others and supportive, nonthreatening feedback, could
handle gradual and infrequent work setting changes, and would need help with
goal setting and planning. (R. 1073).
The ALJ gave significant weight to the opinions of Drs. Dennis and
Mindingall regarding Plaintiff’s mental functioning abilities because she found
they are generally consistent with her overall mental status exams/ER
examinations and the progress notes of Plaintiff’s treating psychiatrist. (R. 1194).
The ALJ stated:
These mental health professionals generally agree that claimant has
no more than moderate limitations in her ability to perform the
mental demands of basic work activities. They agree that claimant
can perform simple tasks with some limited contact with the public,
coworkers and/or supervisors and that changes in the work setting or
routine should be presented infrequently to give time for adjustment.
(Id.). The ALJ then stated in her RFC findings that Plaintiff should be restricted to
simple tasks; occasional interaction with supervisors, coworkers, and the public;
and only occasional changes in a routine work setting. (R. 1162). While these
restrictions generally encompass some of Drs. Dennis and Mindingall’s limitations,
they do not include any specific reference to their assessments that Plaintiff had a
moderate limitation in her “ability to complete a normal workday and workweek

11

without interruptions for psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods.” (R.
849, 1072). Thus, the relevant question is whether the absence of this information
in the hypothetical that was posed to the VE warrants a remand of this matter for
further consideration. The court finds that it does not.
The record, including opinions from multiple doctors, supports the
conclusion that the hypothetical question posed to the VE covered the range of
Plaintiff’s limitations at the relevant time. The ALJ recognized that Plaintiff has a
long history of psychological challenges. She was psychiatrically hospitalized at
Baptist Medical Center South in August 2009 for one day. (R. 695, 1178). During
her stay, she tested positive for marijuana, opioids, and benzodiazepine. (Id.). At
the time of her discharge, she had a euthymic mood, full affect, and was alert and
oriented to time, place and person. (Id.). She refused detoxification rehabilitation.
(Id.). Plaintiff went to Montgomery Area Mental Health Authority (“MAMHA”)
starting in January 2010 where the staff recommended therapy one to two times per
month for the year. (R. 1040). The record reveals that Plaintiff did not comply
with this recommended treatment program. (R. 1023-41).
In March 2011, MAMHA noted that Plaintiff had still not been compliant
with counseling and, after a mental health examination, noted she had a dysphoric
12

mood but was otherwise appropriately groomed, had appropriate affect, calm
motor activity, normal speech, normal orientation, normal thoughts, and no
perceptual disturbances. (R. 1468). Dr. Sreelekha Banerjee at MAMHA saw
Plaintiff in May 2013 and observed that she was calm and cooperative during the
interview; had speech within normal limits; was alert and oriented times three; had
good eye contact; had a mildly anxious mood and affect; had logical thought
process; had no psychomotor agitation or retardation; and had fair judgement and
insight.4 (R. 1185). He also saw her on September 3, 2013. During that session,
Plaintiff stated that she was “doing well on her psychotropic medicines.” (R.
1464). She was somewhat anxious that day, Dr. Banerjee noted that she was out of
medication. (R. 1466). Dr. Banerjee further noted that she was doing well while
on her medicine. (R. 1464).
Plaintiff also sought mental health treatment at Florence Family Health Care
Clinic (“FHCC”) twice in 2015 and once in July 2016 (R. 1187, 1189, 1567-68,
1571-75, 1633-34). In May 2015, Plaintiff reported to an examining nurse
practitioner at FHCC multiple mental symptoms, but upon examination, had

4

The court notes that the medical notes for Plaintiff at MAMHA vary. At times she
reports or is assessed as being dysphoric, depressed, tired, or anxious. At other times, the notes
reflect she is doing well. (See e.g. R. 1028, 1030-37, 1044-48, 1101-05, 1110-15, 1436-40,
1444-49, 1458-60, 1462, 1464-67).
13

normal psychological findings and received no specific treatment for her mental
symptoms (R. 1187, 1567-69, 1573-74). Plaintiff returned in July 2015,
complaining of anxiety. She did not undergo a mental status examination. She
received a prescription for Buspirone. (R. 1572-73). Plaintiff last visited FHCC in
July 2016. She did not report any specific mental symptoms, but requested a
referral to Riverbend Center for Mental Health (“RCMH”). (R. 1633). Plaintiff
again had normal psychological exam findings and received the referral. (R. 163334).
Plaintiff attended an appointment at RCMH on July 25, 2016, during which
she reported a twenty-year history of medication management for “bipolar
depression” and anxiety. (R. 1637-38). She underwent a psychiatric evaluation at
RCMH in August 2016 with Dr. Warren Scott, which showed Plaintiff had a
dysthymic mood but was alert and oriented with normal thought content and
process, fair judgment and insight, and normal speech. (R. 1649). Dr. Scott
prescribed Cymbalta and Latuda, referred Plaintiff for individual therapy, and
advised Plaintiff to follow up with a nurse in one month and with him in three
months or as needed and to seek medication assistance. (R. 1645, 1649). Plaintiff
attended one therapy session at RCMH in September 2016. She reported that she
was sleeping well after starting the Latuda, but she had not stared the Cymbalta
14

due to financial limitations. (R. 1645). Plaintiff was encouraged to engage in
additional activities to help her cope, such as walking her dog. The therapist at
RCMH contacted the medication assistance nurse to help Plaintiff with her need
for assistance in obtaining her medication. Plaintiff was scheduled for another
appointment in five weeks, to avoid a conflict with an anticipated family vacation.
(R. 1645-46).
The record also reflects that the ALJ examined the opinions of other doctors
who examined Plaintiff. For instance, she gave some weight to the opinion of Dr.
W.G. Brantley who examined Plaintiff in October 2009 and August 2014. (R. 841,
1194, 1559). In sum, Dr. Brantley opined following both evaluations that that
Plaintiff was cognitively stable and would have no difficulty with coworkers,
supervisors, and the public. (Id.). He further found in August 2014 that Plaintiff
could return to work immediately. (R. 1559).
Dr. Alan Babb conducted consultative physical examinations of Plaintiff in
November 2009 and March 2011. In 2009, he found Plaintiff’s main issue was
chronic back pain. He did note that she “appears to be sedated somewhat….
Clearly no one is going to hire her taking all of that medication.” (R. 846). He
also noted that he did not believe that she needed all “these chronic powerful pain
medications” and “[s]he clearly appears to be depressed and [her] effort and
15

motivation appear to be very limited.” (Id.). He completed another examination in
March 2011 wherein he noted Plaintiff’s history of bipolar disorder, chronic
depression and agoraphobia. He observed that she had a very flat, robotic affect
and very flat, monotone speech. (R. 1078). He was concerned that she was being
overmedicated on antidepressants and narcotics without a documented need for
them. (R. 1079). He did observe that she had good intellectual skills, good
communication skills, good eye contact, normal cerebellar function, no
abnormalities of speech or content, and she did not appear anxious. (R. 1078).
The ALJ gave “some partial weight” to the opinion of Dr. Daniel Clark. Dr.
Clark examined Plaintiff in March 2011. He found during cognitive testing that
she was alert and oriented, her intellectual abilities likely fell within the low
average range, she exhibited some insight, and her judgment and decision-making
abilities were impaired due to impulsivity. (R. 1054, 1183). He further found she
was moderately impaired in her ability to understand and remember instructions,
and she was severely impaired in her ability to respond appropriately to
supervision, coworkers, and work pressures. (Id.). The ALJ agreed with his
opinion that Plaintiff would have moderate limitations in her ability to understand
and remember instructions, she did not agree with his opinion that Plaintiff would
have severe impairments in carrying out instructions. The ALJ noted that Plaintiff
16

may have difficulty in carrying out difficult instructions but would not have much
difficulty carrying out simple instructions. (R. 1195). The ALJ concluded that
“[w]hile [Plaintiff] does suffer from limitations in [social interaction and ability to
deal with work pressures], they do not preclude work activity within the
parameters of the residual functional capacity assessment.” (Id.).
The ALJ also gave great weight to the opinion of Dr. James Lindsey. Dr.
Lindsey performed a consultative psychological evaluation of Plaintiff in April
2016 and noted that Plaintiff arrived 35 minutes early, was alone, and filled out her
paperwork without apparent difficulty. (R. 1188, 1594-97). He stated Plaintiff’s
relationships with peers and adults at school were good and she quit her job as a
bookkeeper in 2009 because of a “nervous breakdown.” (Id.). Dr. Lindsey also
noted that when working, Plaintiff had no difficulty relating with coworkers or
supervisors and she denied a history of being fired. (Id.). Dr. Lindsey’s overall
prognosis was that Plaintiff appears to be capable of understanding, remembering,
and carrying out instructions; does not appear to have relational issues that would
interfere with her ability to maintain employment; her current mental health
symptoms appear to be posing mild impairment to the claimant in terms of her
employability; and her reported symptom history suggests periods of possible

17

moderate impairment. 5 (R. 1189, 1597).
The record also indicates that Plaintiff has no more than moderate
limitations regarding her interaction with others and her concertation, persistence,
and maintenance of pace. Plaintiff had no behavior problems in school and her
relationships with peers and adults at school were good. (R. 802, 1162). When
working, she had no difficulty with regard to her relationships with coworkers or
supervisors and had never been fired from a job. (R. 1161, 1595-98). Immediately
before or during the adjudicative period, Plaintiff had been dating her boyfriend,
and they later married. (Id.). She has maintained family relationships in person
5

The full text of his opinion provides:

The results of the current evaluation suggest the claimant’s current mental
health complaints appear to be most consistent with bipolar I disorder. It is
possible the claimant’s mental health condition could improve in the next 6 to 12
months if she engages in outpatient mental health treatment and possibly
medications targeting her mental health symptoms. At the time of the current
evaluation, the claimant’s concentration and attention appear to be average.
Memory is intact. Fund of information is average. Abstraction is average to
below average. Thought process is normal. Thought content is normal.
Judgment is average. Insight is limited. There appears to be no significant
intel1ectual impairment. She can perform some of her activities of daily living
without assistance but does not appear capable of independent living. If awarded
benefits, it is advisable to assign a payee. She appears to be capable of
understanding, remembering, and carrying out instructions. She does not appear
to have relational issues that would interfere with her ability to maintain
employment. Based on the claimant’s performance on tasks during this
evaluation, current mental health symptoms appear to be posing mild impairment
for the claimant in terms of her employability. Her reported symptom history
suggests periods of possible moderate impairment.
(R. 1597).
18

and using Facebook, and has raised a teenage son. (R. 1161, 841, 1595-98). As to
concentration, persistence, or maintaining pace, the mental status examinations
done during the adjudicative period have generally shown Plaintiff to be alert and
fully oriented and to have good eye contact, normal thought process, and good
intellectual skills. (R. 1054, 1078, 1161, 1558-59, 1596). No marked problems
with attention and concentration were noted. (Id.).
To the extent Plaintiff argues that the ALJ improperly failed to include Drs.
Dennis and Mindingall’s opinions that she would miss one to two days of work per
month due to exacerbation of her psychiatric symptoms into her RFC finding (Doc.
10 at 9 (citing R. 849-50 & 1072-73)), the court is not impressed for two reasons.
First, the opinions are not supported by any other specific evidence in the record.
As recognized above, the ALJ extensively discussed the evidence and properly
limited Plaintiff’s RFC. Second, the VE testified that that employers would allow
up to two days of absences per month, demonstrating that this limitation would not
amount to an additional, greater limitation that should have been included in
Plaintiff’s RFC. (R. 1233). Thus, this aspect of Plaintiff’s claim is without merit.
Placing the opinions of Drs. Dennis and Mindingall in context, particularly
in view of more recent, relevant parts of the record, the court concludes that the
ALJ posed a complete hypothetical to the VE. The ALJ noted that Plaintiff can
19

only do light work, should be limited to simple tasks with occasional interaction
with supervisors, coworkers and the public, and should get occasional changes in
the routine work setting. This covers the moderate limitations in the areas of
interacting with others and concentrating, persisting, or maintaining pace and is
supported by the previously discussed evidence from the record. Therefore,
Plaintiff’s claim that the hypothetical question was incomplete is without merit.
B.

Proper Credit to Side Effects

Plaintiff next argues that the ALJ failed to properly credit the side effects of
her prescribed medications upon her ability to work and Dr. Pantaleone’s opinion
regarding the same. (Doc. 10 at 11). In determining whether a claimant’s
impairments limit her ability to work, the ALJ considers the claimant’s subjective
symptoms, which includes the effectiveness and side effects of any medications
taken for those symptoms. Walker v. Commr of Soc. Sec., 404 F. App’x 362, 366
(11th Cir. 2010) (citing 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv)).
However, the ALJ’s obligation to develop the record does not relieve the claimant
of the burden of proving she is disabled. Ellison v. Barnhart, 355 F.3d 1272, 1276
(11th Cir. 2003). Thus, Plaintiff must introduce evidence supporting her claim that
her symptoms (including any medication side effects) make her unable to work.
Id.
20

At her second administrative hearing, Plaintiff’s former counsel brought
attention to numerous comments throughout the record about Plaintiff appearing
sedated, which is a side effect of her prescription medications for her chronic pain
and psychological conditions. (Doc. 10 at 11-12 (citing R. 53)). Plaintiff also
testified at that hearing that she was taking Lortab, Percocet and Soma. (Id. (citing
R. 58)). In her third administrative hearing, Plaintiff testified again to the side
effects of her medication, stating that “[i]t’s caused me to be dizzy. It’s caused me
to not be able to function, I mean not even be able to move to get out of bed. They
caused nausea, constipation, it’s just a long list.” (R. 1224). Dr. Pantaleone
expressed in a September 2010 deposition that side effects from prescribed
medications made “it harder to work. Because if you’re taking a lot of medicine,
you can become somnolent and sleepy, and then you can’t concentrate, things like
that. I have tried her on a stimulant at one time… Adderall… and it exacerbated
her anxiety, so I had to wean her off that.” (R. 895-96).
Plaintiff asserts that the ALJ failed to provide adequate rationale with
respect to the effects and resulting limitations imposed by her medications or
include any concentration-related limitations caused by medication side effects into
her RFC finding. (Doc. 10 at 13). The court disagrees. The ALJ addressed the
medication side effects multiple times in her opinion, first by noting that Plaintiff
21

testified that they made her “unable to function and [caused her] to experience
dizziness, nausea, constipation, and difficulty with concentrating and focusing.”
(R. 1163). The ALJ also noted that while receiving treatment at MAMHA,
Plaintiff generally denied having or reported no side effects from medications. (R.
1184-85, 1430-39, 1444-46, 1448, 1464, 1466, 1468). However, on January 31,
2013, Plaintiff reported that taking Trazodone made her sluggish in the morning.
In May 2013, she reported it made her experience nightmares. Accordingly, the
medication was discontinued at that time by her psychiatrist, Dr. Bannerjee. (R.
1444, 1468).
The ALJ noted that examining consultants mentioned some sedation effects
in Plaintiff’s presentation. For instance, the ALJ discussed Dr. Alan M. Babb’s
November 2009 report that Plaintiff looked “somewhat” sedated and that he was
concerned that she was taking more medication than needed.6 (R. 846, 1192).
However, the ALJ also noted that Dr. Babb opined in the same examination that
Plaintiff had briskly reactive pupils, normal cerebellar function, and normal
peripheral reflexes. (R. 845-46, 1192). The ALJ further noted Plaintiff’s initial
August 2009 disability report and her December 2009 disability report on appeal,
6

Dr. Babb also noted this concern in his March 2011 evaluation of Plaintiff. (See
R.1079). The ALJ considered all of Dr. Babb’s information along with all of the other evidence
concerning medication side effects. (See R. 1165, 1181, 1184).
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where she was requested to list side effects from any prescribed medications. In
her first report, she did not list anything in the side effect blanks, and in her report
on appeal she explicitly listed “none” by each medication. (R. 361, 414). The ALJ
also gave little weight to the opinion of Dr. Pantaleone because the two functional
assessments he performed in August 2011 and February 2014 were inconsistent
with one another and in most instances, Dr. Pantaleone’s progress notes only
contained Plaintiff’s complaints and refills of medications. (R. 520-59, 80637,1193, 1481-1549).7 They did not indicate difficulties with side effects of
concerning her medication. Plaintiff has not shown that the ALJ’s assessment of
the foregoing evidence is incorrect.
In summary, the ALJ considered Plaintiff’s complaints of medication side
effects coupled with the other evidence in the record and decided it was
appropriate to restrict Plaintiff to only simple tasks, occasional interaction with
supervisors, coworkers, and the public, and a routine work setting involving
occasional changes. (R. 1162). The court finds that while Plaintiff’s testimony
highlights complaints of medication side effects, the record supports the ALJ’s
finding that Plaintiff is not as limited as she alleges and the correctness of her RFC
7

Plaintiff did complain one time – October 2007 – that she was having difficult focusing.
However, there is no indication that this issue related to a specific medication she was taking.
(R. 523, 829, 1511).
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determination that Plaintiff can perform light work with various limitations.
Plaintiff’s challenges do not adequately refute the ALJ’s determination that she is
not disabled.
VI. CONCLUSION
For the reasons set forth above, the undersigned concludes that the decision
of the Commissioner is due to be affirmed. An appropriate order will be entered
separately.
DONE, this the 22nd day of August, 2018.

______________________________
JOHN E. OTT
Chief United States Magistrate Judge

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