Washington v. Social Security Administation, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 8/12/2014. (PSM)

FILED
2014 Aug-12 PM 03:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
CORNELIUS WASHINGTON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 4:13-cv-01129-JEO

MEMORANDUM OPINION
Plaintiff Cornelius Washington 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 his applications for disability insurance benefits and supplemental security income.
(Doc. 1).1 The case has been assigned to the undersigned United States Magistrate Judge
pursuant to this court’s general order of reference dated January 14, 2013. The parties have
consented to the jurisdiction of this court for disposition of the matter. (Doc. 9). See 28 U.S.C. §
636(c), FED. R. CIV. P. 73(a). Upon review of the record and the relevant law, the undersigned
finds that the Commissioner’s decision is due to be affirmed.
I. PROCEDURAL HISTORY
The Plaintiff protectively filed applications for disability insurance benefits and
supplemental security income on February 10, 2010, alleging disability beginning December 31,

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.

1

2007. (R. 132-36).2 His claim was denied initially. (R. 68). He then requested a hearing before
an Administrative Law Judge (“ALJ”), which was held on December 6, 2011. (R. 36-67 ). The
Plaintiff was represented by counsel at the hearing. (R. 38). The ALJ concluded that the
Plaintiff was not disabled.3 (R. 32).
The Plaintiff requested the Appeals Council to review the ALJ’s decision and submitted
additional evidence regarding his disability. (R. 16, 214-54, 500-31). The Appeals Council
declined the Plaintiff’s request for review on April 17, 2013. (R. 1-7). On that date, the ALJ’s
decision became the final decision of the Commissioner. The Plaintiff then filed this action for
judicial review under 42 U.S.C. § 405(g), asserting that the findings of the Commissioner are not
based upon substantial evidence and that improper legal standards were applied. (Doc. 1).
II. STANDARD OF REVIEW4
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of the court is to determine whether the decision of the Commissioner is supported by

2

References to “R. __” are to the page number of the administrative record, which is encompassed within
Docs. 6-1 through 6-10.
3

At the hearing, the ALJ noted that the case involved concurrent claims for disabled adult/child disability
and for supplemental security income, both filed on February 10, 2010. (R. 38-39). In his written decision, however,
the ALJ erroneously stated that the claim for disability benefits was filed on September 21, 2006, and that the claim
for supplemental security income was filed on January 21, 2010. (R. 23). The ALJ also stated at the hearing and in
his written decision that the Plaintiff’s alleged disability onset date was March 31, 2008 (see R. 23, 39), although it
appears from the summaries of the Plaintiff’s disability and supplemental security income applications that the
Plaintiff alleged an onset date of December 31, 2007. (R. 132-33). The court would note that when the ALJ stated
at the hearing that the onset date was March 31, 2008, the Plaintiff’s attorney did not express any disagreement with
that date and later confirmed that there were no onset date issues in the case. (R. 39, 44). In any event, the
discrepancies in the dates are not material and the Plaintiff has not raised any issues arising out of the discrepancies.
4

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

2

substantial evidence and whether proper legal standards were applied. Richardson v. Perales,
402 U.S. 389, 390, 91 S. Ct. 1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th
Cir. 2002). This court must “scrutinize the record as a whole to determine if the decision reached
is reasonable and supported by substantial evidence.” 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 the proper
legal analysis has been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936
F.2d 1143, 1145-46 (11th Cir. 1991).
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a period of disability,
a claimant must be disabled as defined by the Social Security Act and the Regulations promulgated
thereunder.5 The Regulations define “disabled” as “the inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less than

5

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts 400 to 499,
revised as of April 1, 2007.

3

twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish 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.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner]6;
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R. section),
overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999); accord
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied steps
One and Two, she will automatically be found disabled if she suffers from a listed impairment. If
the claimant does not have a listed impairment but cannot perform her work, the burden shifts to the
[Commissioner] to show that the claimant can perform some other job.” Pope, 998 F.2d at 477;
accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further show
such work exists in the national economy in significant numbers. Id.

6
20 C.F.R. Pt. 404, Subpt. P, App. 1. This subpart is also referred to as the “Listing of Impairments” or
“the Listings.”

4

IV. DISCUSSION
A.

The Facts
At the time of the ALJ’s decision, the Plaintiff was twenty years old with a limited

education, having left school during grade twelve without receiving a diploma. (R. 44, 49).
Prior to his alleged disability onset date, he worked for a few months at a car wash and three fast
food restaurants. (R. 146). His application for disability benefits lists his conditions as bipolar
disorder-type 2, impulsive control disorder, and asthma. (R. 144). He alleges in his application
that he stopped working because of these conditions. (Id.)
In 2006, at age 16, the Plaintiff was admitted to Mountain View Hospital after engaging
in threatening behavior at school. (R. 255). He was diagnosed with “bipolar II disorder” and
impulse control disorder. (R. 256). He was prescribed Risperdal, an antipsychotic medication.
(Id.) He was discharged after a short stay, with his treating physician assessing his prognosis as
“[g]ood with continued treatment on an out-patient basis, medication compliance and positive
family support.” (Id.)
The Plaintiff was examined by psychologist June Nichols on April 15, 2010. (R. 336-39).
Dr. Nichols assessed the Plaintiff as suffering from impulse control disorder and attention
deficit/hyperactivity disorder (“ADHD”). (R. 339). She assigned the Plaintiff a Global
Assessment of Functioning (“GAF”) score of 657 and concluded that the Plaintiff’s “ability to
relate interpersonally and withstand the pressures of everyday work is mildly compromised” and

7

A GAF Score of between 61 and 70 indicates “[s]ome mild symptoms (e.g., depressed mood and mild
insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft
within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.
See http://gafscore.com (last visited August 12, 2014) (bold in original).

5

that he does not have “deficits which would interfere with his ability to remember, understand
and carry out simple work related instructions.” (R. 338-39).
Dr. Robert Estock, a non-examining psychiatrist, reviewed the Plaintiff’s treatment
records in May 2010. (R. 341-54). He found that the Plaintiff’s impulse control disorder and
ADHD are not severe impairments and that the Plaintiff has mild restrictions in his activities of
daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining
concentration, persistence, and pace, and no episodes of decompensation. (R. 341-51).
Since June 2010, the Plaintiff has received mental health treatment from CED Mental
Health Center (“CED”), where he sees a counselor and a doctor once a month. (R. 46, 443-61,
497-99). He has been diagnosed as suffering from bipolar disorder- type I. (R. 445-61). CED
has assigned him GAF scores ranging from 45 to 50.8 (R. 445-52, 497-99). He has been
prescribed antidepressants to treat his depression. (R. 43).
At the hearing, the Plaintiff testified that he is not able to hold down a job and work
regularly because “I just don’t like being around a lot of people ... [and if] authority tells me to do
something, I just might snap for no reason.” (R. 48). He stated that the medication he has been
prescribed at CED helps his condition, explaining that it “calms me down” and that “I don’t stay
stressed out as much.” (R. 53-54). He also stated, however, that the medication does not help
him to the point where he thinks he could function in a job. (R. 54). He testified that he
experiences manic/depressive cycles and that his medication reduces his cycles from three or four

8

A GAF Score between 41 and 50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job).” See http://gafscore.com (last visited August 12, 2014) (bold in
original).

6

a day to about one a day. (R. 55-56). When questioned by the ALJ, he conceded that he has
never experienced any manic episodes. (R. 58-59).
B.

Findings of the ALJ
After consideration of the entire record before him and application of the sequential

evaluation process, the ALJ made the following findings:
The ALJ found that the Plaintiff met the insured status requirements of the Social
Security Act through February 6, 2012, and that he had not engaged in substantial gainful activity
since March 31, 2008, the alleged onset date of his disability.9 (R. 25).
The ALJ found that the Plaintiff has the severe impairment of bipolar disorder, but that he
does not have an impairment or combination of impairments that meets or medically equals one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 25-26).
The ALJ determined that the Plaintiff has the residual functioning capacity (“RFC”) to
perform a full range of work at all exertional levels, subject to the following nonexertional
limitations: he can understand, remember, and carry out simple instructions, but not complex or
detailed instructions; and he should do no work involving contact with the general public, close
proximity to co-workers, or frequent direct supervision.10 (R. 27-30). The ALJ further
determined that the Plaintiff can handle routine changes in a work setting and make basic
judgments about safety. (Id.)
The ALJ found that the Plaintiff has no past relevant work. (R. 30). Based on the

9

See footnote 3.

10

Residual functioning capacity is the most a claimant can do despite his impairment(s). See 20 C.F.R. §
404.1545(a)(1).

7

testimony of a vocational expert, the ALJ concluded that, considering the Plaintiff’s age,
education, work experience, and RFC, there are a significant number of jobs in the national
economy that the Plaintiff can perform. (R. 31, 62-64). The ALJ thus concluded that the
Plaintiff is not disabled. (R. 32).
C.

Analysis
The Plaintiff urges the court to reverse or remand the Commissioner’s decision to deny

him benefits on five grounds: (1) the ALJ failed to develop the record; (2) the Appeals Council
inadequately reviewed the Plaintiff’s new evidence of disability and failed to remand the case
based on the new evidence; (3) the ALJ’s hypothetical question to the vocational expert did not
fully state the Plaintiff’s impairments and limitations; (4) the ALJ failed to state adequate reasons
for finding the Plaintiff not credible; and (5) the ALJ improperly concluded that the Plaintiff’s
impairment did not meet Listing 12.04. (Doc. 1 at 11-27). The court will address each argument
in turn.
1.

The ALJ Fully Developed the Record

The Plaintiff asserts that the ALJ failed to fully develop the record because he failed to
obtain “important relevant records” that were in existence prior to December 6, 2011, the date of
the hearing. (Doc. 10 at 11-12). Specifically, the Plaintiff contends that the ALJ failed to obtain
five treatment records from CED dated April 10, 2010; June 1, 2010; July 22, 2010; October 19,
2011; and November 2, 2011. (Id.) The Plaintiff included these records in his post-hearing
submission to the Appeals Council.11 (R. 502-12, 524, 527).

11

The treatment record that the Plaintiff contends is dated April 10, 2010, is actually dated August 10, 2010.
(R. 512). This is confirmed by the fact that the Plaintiff was not referred to CED until June 1, 2010. (See R. 454457).

8

The Plaintiff’s argument is not well taken. First, the three CED records from 2010 were,
in fact, obtained prior to the hearing and were part of the record before the ALJ. (See R. 451461). Second, although the CED records from October and November 2011 were not obtained
prior to the hearing, the Plaintiff has not shown–or even attempted to show– how the absence of
those two records resulted in prejudice or unfairness to him. See Brown v. Shalala, 44 F.3d 931,
935 (11th Cir. 1995) (“in evaluating the necessity for a remand, we are guided by whether the
record reveals evidentiary gaps which result in unfairness or clear prejudice.”) (internal
quotations omitted). Indeed, the record before the ALJ included records reflecting the Plaintiff’s
treatment at CED from June 2010 through September 2011. (R. 443-61, 497-99). Those records
contain ample discussion of the Plaintiff’s symptoms, clinical diagnoses, and treatment at CED.
The absence of two additional CED records from October and November 2011–records that
merely reflect a continuation of the Plaintiff’s ongoing treatment at CED–does not warrant a
remand for failure to develop the record. The ALJ developed a full and fair record.
2.

The Appeals Council Adequately Considered the Plaintiff’s Additional
Evidence

After the ALJ rendered his decision that the Plaintiff was not disabled, the Plaintiff
requested review by the Appeals Council and provided the Appeals Council with additional
evidence consisting of treatment records from Riverview Regional Medical Center dated
February 23-24, 2012 (R. 226-40); a “Social Security Disability Questionnaire” completed by
Dr. Marin Tulao on March 1, 201212 (R. 214-15); a report of a psychological evaluation
performed by Dr. David Wilson on July 25, 2012 (R. 219-23); a “Mental Health Source

12

The Social Security Disability Questionnaire is not dated, but the Plaintiff’s attorney stated in her letter
brief to the Appeals Council that the questionnaire was completed by Dr. Tulao on March 1, 2012. (See R. 190).

9

Statement” completed by Dr. Wilson on July 30, 2012 (R. 224-25); and various CED treatment
records from June 2010 through June 2012. (R. 216-18, 241-54, 500-31). The Plaintiff argues
that the case should be remanded because the Appeals Council inadequately reviewed this
additional evidence. (Doc. 10 at 12-17).
The Eleventh Circuit has addressed the issue of judicial review of new evidence
submitted to the Appeals Council as follows:
The Appeals Council has discretion not to review the ALJ’s denial of benefits;
however, if the claimant submits new noncumulative and material evidence to the
Appeals Council after the ALJ’s decision, it must consider such evidence where it
relates to the period on or before the date of the ALJ’s hearing decision. 20 C.F.R.
§ 404.970(b); see also Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994). The Appeals Council must adequately evaluate the new
evidence. Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980). Where the
Appeals Council does not adequately evaluate new evidence, but instead
perfunctorily adheres to the ALJ’s decision, the Commissioner’s findings are not
supported by substantial evidence. Bowen v. Heckler, 748 F.2d 629, 634 (11th Cir.
1984).
.... When new evidence is submitted to and accepted by the Appeals Council and
it denies review, the district court conducts a new review of the evidence
independently of the Appeals Council. [Ingram v. Comm’r of Soc. Sec., 496 F.3d
1253, 1266 (11th Cir. 2007)]. The district curt must consider the new evidence
submitted to the Appeals Council and determine whether the Commissioner’s
decision is contrary to the weight of the evidence currently of record. 20 C.F.R. §
404.970(b); Id. “[B]ecause a reviewing court must evaluate the claimant’s
evidence anew, the [Appeals Council] is not required to provide a thorough
explanation when denying review.” Burgin v. Comm’r of Soc. Sec., 420 Fed.
Appx. 901, 903 (11th Cir. 2011) (per curiam) (citing Ingram, 496 F.3d at 1262).
Caces v. Comm’r, Soc. Sec. Admin., 560 F. App’x 936, 941 (11th Cir. 2014).
Here, the treatment records from Riverview Regional are not material and do not relate to
the period on or before the date of the ALJ’s decision. They concern treatment the Plaintiff
received when he injured his right hand in February 2012, two months after the ALJ rendered his

10

decision on December 19, 2011. The records are not relevant or probative to the issue of whether
the Plaintiff was disabled on or before that date due to a psychological impairment.
Dr. Tulao’s Social Security Disability Questionnaire was completed on March 1, 2012,
more than two months after the ALJ issued his decision. Dr. Tulao expressed the opinion that
the Plaintiff is “disabled” and that the disability began on an “undetermined” date. (R. 214). Dr.
Tulao listed the following causes of the Plaintiff’s disability: “fatigue, diminished ability to think
or concentrate, flight of ideas or subjective experience that thoughts are racing, and attention too
easily drawn to unimportant or irrelevant external stimuli.” (Id.)
Although Dr. Tulao’s opinion was expressed after the date of the ALJ’s decision, Dr
Tulao was one of the Plaintiffs’s treating doctors and his opinion was based on his examination
of the Plaintiff five times between September and December 2011. (Id.) Therefore, the opinion
could bear on the Plaintiff’s condition on or before December 19, 2011. The court concludes,
however, that the opinion expressed by Dr. Tulao in the Social Security Disability Questionnaire
is not material. The opinion does not reference any specific medical findings or diagnoses, and
the symptoms Dr. Tulao identifies were already documented in the medical records before the
ALJ. (See, e.g., R. 448). Moreover, Dr. Tulao’s opinion that the Plaintiff is “disabled” is a
determination reserved for the Commissioner and is, by rule, given no special weight. See 20
C.F.R. § 404.1527(d)(1) (“[T]he Commissioner] [is] responsible for making the determination or
decision about whether [the claimant] meet[s] the statutory definition of disability.... A
statement by a medical source that [the claimant] [is] ‘disabled’ or ‘unable to work’ does not
mean that [the Commissioner] will determine that [the claimant] [is] disabled.”); see Denomme
v. Comm’r, Soc. Sec. Admin., 518 F. App’x 875, 878 (11th Cir. 2013) (“While [the examining
11

physician] generally opined that if untreated, [the claimant’s] condition would likely prevent her
from maintaining gainful employment, this was not a medical assessment, but simply an opinion
on an issue reserved to the Commissioner’s discretion.”). As the Eleventh Circuit has stated, “we
are concerned here with the doctors’ evaluations of [the claimant’s] condition and the medical
consequences thereof, not their opinions of the legal consequences of his condition. Our focus is
on the objective medical findings made by each doctor and their analysis based on those medical
findings.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Because Dr. Tulao’s
opinion does not reference any new medical findings or diagnoses and simply provides his
opinion of the legal consequences of the Plaintiff’s condition, the court finds that his opinion
does not create a reasonable possibility of changing the ALJ’s decision and therefore is not
material. See Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987) (New evidence is material “if it
is relevant and probative so that there is a reasonable possibility that it would change the
administrative result.”) (citations omitted).
Unlike Dr. Tulao, Dr. Wilson was not one the Plaintiff’s treating doctors. His
psychological examination report and mental health statement are based solely on an examination
he performed in July 2012, seven months after the date of the ALJ’s decision. They reflect
nothing more than his assessment of the Plaintiff’s mental health as of July 2012 and do not
relate to the period on or before the date of the ALJ’s decision. See Smith v. Soc. Sec. Admin.,
272 F. App’x 789, 801-02 (11th Cir. 2008) (noting that three reports submitted by the claimant to
the Appeals Council “came after [the date of] the ALJ’s decision and, therefore, the AC does not
consider them in determining whether to review the ALJ’s decision”).
The bulk of the additional evidence the Plaintiff submitted to the Appeals Council
12

consists of CED treatment records from June 2010 through December 20011 and a single record
from June 2012. The Appeals Council considered this evidence, but concluded that it did not
render the ALJ’s decision contrary to the weight of the evidence and did not provide a basis for
changing the decision. (R. 2). The court agrees. As previously noted, the CED treatment
records from June 2010 through September 2011 were not new and were already in the record
before the ALJ. (See R. 443-61, 497-99). The CED treatment records from October through
December 2011 and from June 2012, while new, are not material and do not create a “reasonable
possibility” of changing the ALJ’s decision.13 The ALJ found that the Plaintiff has the severe
impairment of bipolar disorder. (R. 25). In making this finding, the ALJ reviewed medical
records from multiple sources, including the full array of CED records from June 2010 through
September 2011. The additional CED records from October through December 2011 and June
2012 simply reflect the ongoing treatment the Plaintiff was receiving at CED. They do not
reflect any change in his condition or any new or different assessment of his condition.
In sum, the Appeals Council did not err by failing to provide a “thorough explanation” of
its decision to deny review.14 15 The additional evidence the Plaintiff submitted to the Appeals

13

In addition, the record from June 2012 does not relate to the period on or before the date of the ALJ’s

decision.
14

The court would note that the Appeals Council did address the Plaintiff’s additional evidence in its notice
of denial. The Appeals Council stated that the additional CED records “[did] not provide a basis for changing the
[ALJ’s] decision” and that the Plaintiff’s other evidence “was about a later time” and “did not affect the decision
about whether [the Plaintiff was] disabled beginning on or before December 19, 2011,” the date of the ALJ’s
decision. (R. 2).
15

The Commissioner argues that the Appeals Council’s notice of denial complies with the guidelines in
Hearings Appeals and Litigation Law Manual (HALLEX) I-3-5-20 for reviewing additional evidence. (Doc. 11 at 67). The court agrees that the Appeals Council appears to have followed the HALLEX guidelines. However, the
Eleventh Circuit has stated that it would be a “very big assumption” to assume that the HALLEX carries the force of
law, George v. Astrue, 338 F. App’x 803, 805 (11th Cir. 2009), and a number of other circuit courts have expressly
held that the HALLEX does not carry the force of law. See, e.g., Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir.

13

Council was neither noncumulative nor material, and much of it was not new. Even considering
the additional evidence submitted by the Plaintiff, the Commissioner’s decision is not contrary to
the weight of the evidence.
3.

The ALJ Properly Included Plaintiff’s Limitations in the Hypothetical
Question Posed to the Vocational Expert

“In order for a [vocational expert’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). The Plaintiff argues here that the vocational
expert’s testimony regarding his ability to work did not constitute substantial evidence because
the ALJ’s hypothetical question did not include all of his limitations. (Doc. 10 at 18-19).
The ALJ questioned the vocational expert as follows:
Q.

Dr. Crunk, I want you to assume that we have an individual, ranging from 19 to
21 years of age during the period in question, or perhaps 18 – let’s go all the way
to 18. He had a limited education. Although he went to school for 12 years, he
did not earn credits, did not get a high school diploma.
He has no past relevant work for our purposes. The work that he’s done in the
past was not – wasn’t done long enough, and he has not earned enough money for
it to be relevant for our purposes.
I want you to assume, for purposes of this question, that there are no impairmentcaused limitations on the Claimant’s exertional abilities. He can sit, stand, walk,
lift, carry, push, and pull without impairment-caused limitations.
He has no limitations on his other, non-exertional physical abilities, such as
climbing, balancing, stooping, reaching, etc. He has no limitations in vision, or
hearing, or smell, or taste.

2003) (HALLEX “does not prescribe substantive rules and therefore does not carry the force and effect of law’);
Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000) (“[H]ALLEX does not carry the authority of law”). This court is
unwilling to assume that the HALLEX has the force and effect of law and, therefore, does not find the Appeals
Council’s apparent compliance with the HALLEX guidelines to be controlling.

14

He has no environmental limitations. For the purpose of this question, I want you
to assume that he would be able to understand, remember, and carry out simple
instruction but not complex or detailed instructions.
He would be able to work in a setting where he did not deal with the general
public, was not in a particularly close proximity to co-workers, and received
minimal supervision once the job was explained.
If we took that set of assumptions, could such an individual perform any full-time
work which exists in the national economy?
A.

Yes, your honor.

(R. 62-63).
In his Memorandum in Support of Disability, the Plaintiff appears to argue that the above
question ignored his bipolar disorder. (See Doc. 10 at 19). Although the ALJ may not have used
the words “bipolar disorder” in his question, the ALJ adequately accounted for the Plaintiff’s
psychological limitations when he told the vocational expert to assume that the Plaintiff could
not follow complex or detailed instructions and needed to work in a setting where he did not deal
with the general public, was not in close proximity to his co-workers, and received only minimal
supervision. These were the very factors the Plaintiff testified to as having impacted his past
employment. (See R. 48-49). The ALJ properly included these conditions in the hypothetical
question he posed to the VE.
The Plaintiff also contends that the ALJ’s hypothetical question improperly assumed that
he could work. (Doc. 10 at 18). This is an argument of semantics. It is the ALJ’s duty to
question the vocational expert as to what, if any, jobs a claimant can perform given the
claimant’s limitations. In order to do so the ALJ must ask the vocational expert to consider the
claimant in terms of his ability to function in a workplace. There was nothing improper about

15

that aspect of the ALJ’s question.
The ALJ found that the Plaintiff had the RFC to perform a full range of work subject to
several nonexertional limitations, all of which he included in his hypothetical question to the
ALJ. (R. 27). Substantial evidence supports this finding. Accordingly, the ALJ’s hypothetical
question to the vocational expert was proper.
4.

The ALJ Properly Considered Plaintiff’s Credibility

The Plaintiff next argues that the ALJ failed to state adequate reasons for finding him not
totally credible. (Doc. 10 at 19-20). “If the ALJ discredits subjective testimony, he must
articulate explicit and adequate reasons for doing so.” Wilson v. Barnhart, 284 F.3d 1219, 1225
(11th Cir. 2002); see 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4) (“we will evaluate your
statements in relation to the objective medical evidence and other evidence in reaching a
conclusion as to whether you are disabled. We will consider whether there are any
inconsistencies in the evidence....”).
Here, the ALJ articulated the reasons behind his credibility determination:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual functional capacity
assessment. He has maintained a three-year relationship with his girlfriend and
testified that his application for disability benefits keeps him from having to make
child support payments to his two-year old son’s mother. This would appear to be
at least a part of the claimant’s motivation for his application for benefits. His
description of daily activities is not very limited and he can function socially with
his girlfriend. He has regular custodial visitation every other weekend ... with his
son. The injury to his finger is because he was working on a four-wheeler for
someone.
(R. 30). These reasons provide a sufficient basis for the ALJ’s finding that the Plaintiff’s
16

testimony concerning his disability was not totally credible.
5.

The ALJ Properly Concluded that the Plaintiff’s Impairment Did Not Meet
Listing 12.04 A3 (Bipolar Syndrome)

The Plaintiff’s final argument is that his impairment meets the requirements of Listing
12.04, specifically Listing 12.04 A3 (bipolar syndrome). (Doc. 10 at 20). To be found disabled
under the listings, a claimant must show that he is incapable of performing any gainful activity,
not just “substantial gainful activity.” See 20 C.F.R. §§ 404.1525(a), 416.925(a) (the listings
describe impairments “severe enough to prevent a person from doing any gainful activity”).
“The reason for this difference between the listings’ level of severity and the statutory standard is
that, for adults, the listings were designed to operate as a presumption of disability that makes
further inquiry unnecessary.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see Bowen v.
Yuckert, 482 U.S. 137, 153 (1987) (the purpose of the listings is to identify “those claimants
whose medical impairments are so severe that it is likely they would be found disabled regardless
of their vocational background”).
To satisfy the criteria of a listing a claimant must demonstrate not only a symptom
requirement but also a severity requirement. See Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th
Cir. 2002). In addition, “[f]or a claimant to show that his impairment matches a listing, it must
meet all of the specified medical criteria. An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.” Zebley, 493 U.S. at 530.
To meet the severity requirement under Listing 12.04, a claimant must satisfy the
“paragraph B” criteria by showing that his impairment has resulted in at least two of the
following limitations: marked restriction of activities of daily living; marked difficulties in

17

maintaining social functioning; marked difficulties in maintaining concentration, persistence, or
pace; or repeated episodes of decompensation of extended duration. 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.04 B. “Marked” as a standard for measuring the degree of limitation means more
than moderate but less than extreme. 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). Here, the
ALJ concluded that the Plaintiff demonstrated only mild restrictions in activities of daily living,
moderate difficulties in social functioning, and moderate difficulties in concentration, persistence
or pace. (R. 26-27). The ALJ also noted that the medical record did not reflect any episodes of
decompensation of extended duration. (R. 27). He thus found that the Plaintiff’s mental
disorder did not meet or medically equal the criteria of Listing 12.04. (R. 26).
As support for his argument that he meets Listing 12.04 A3, the Plaintiff merely
summarizes the CED treatment records and the submissions from Dr. Tulao and Dr. Wilson
without explaining how any of this evidence demonstrates that two of the required “paragraph B”
criteria were satisfied. (Doc. 10 at 22-27). He seems to imply that Dr. Wilson’s mental health
statement, which reflects Dr. Wilson’s opinion that the Plaintiff has “extreme” limitations in a
number of functional areas, establishes the “paragraph B” criteria. As previously discussed,
however, Dr. Wilson’s mental health statement (as well as his psychological examination report)
is based on an examination Dr. Wilson performed in July 2012, seven months after the ALJ
issued his decision on December 19, 2011. Therefore, the mental health statement cannot be
relied upon as evidence of the severity of the Plaintiff’s functional limitations during the period
on or before that date.
The ALJ found that the Plaintiff’s functional limitations during the relevant period were
either mild or moderate and that the Plaintiff did not meet the requirements of Listing 12.04. The
18

Plaintiff has failed to establish that these findings, which are supported substantial evidence,
were erroneous.
V. CONCLUSION
For the reasons set forth above, the undersigned finds that the decision of the
Commissioner is due to be AFFIRMED. An appropriate order will be entered separately.
DONE, this the 12th day of August, 2014.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

19