Wright v. Social Security Administration, Commissioner

Filing 9

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 2/9/2015. (AVC)

FILED
2015 Feb-09 AM 11:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

HEATHER WRIGHT,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security
Administration,
Defendant.

Case No.: 4:13-cv-01425-RDP

MEMORANDUM OF DECISION
Plaintiff Heather Wright brings this action pursuant to Section 205(g) and Section
1631(c)(3) of the Social Security Act (the “Act”), seeking review of the decision of the
Commissioner of Social Security (the “Commissioner”) denying her claims for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).

42 U.S.C. §§ 405(g),

1383(c). Based upon the court’s review of the record and the briefs submitted by the parties, the
court finds that the decision of the Commissioner is due to be affirmed.
I.

Proceedings Below
This action arises from Plaintiff’s application for DIB and SSI on June 21, 2010, alleging

disability beginning on November 1, 2009.

(Tr. 160-67).

Plaintiff=s application was denied

both initially and also upon reconsideration. (Tr. 97-101, 103-07).

Plaintiff requested and

received a hearing before Administrative Law Judge Perry Martin (“ALJ”), on March 2, 2011, in
Montgomery, Alabama.

(Tr. 71).

In his decision, dated April 14, 2011, the ALJ determined

that Plaintiff was not disabled under the Act from the alleged onset date through the date of the
decision. (Tr. 58).

Over ten months after the ALJ issued his decision, Plaintiff received a psychological
evaluation from the Gadsden Psychological Services, LLC, dated February 28, 2012. (Tr.
36-41).

In a report connected to that assessment, David R. Wilson, Ph.D., diagnosed Plaintiff

with “Panic Disorder with Agoraphobia, Major Depressive Disorder, Recurrent (severe).” (Tr.
41). Although he was a nontreating physician, Dr. Wilson found, in relevant part,
[Plaintiff’s] [l]evel of functioning is so impaired that she does not appear to be
capable, at this time, of working at any type of job environment. Would have
great difficulty with the task demands and with interpersonal aspects of any job
setting. It is not likely that her status will improve significantly in the next 12
months.
(Tr. 41 (emphasis added)). Dr. Wilson’s opinion was based upon Plaintiff’s medical records,1
various clinical tests, and an interview with Plaintiff. (Tr. 36-41). Plaintiff submitted this
assessment to the Appeals Council to supplement her request for review of the ALJ’s decision.
(Tr. 36-41).
On May 31, 2013, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision (Tr. 13-19), rendering the ALJ’s decision final and, therefore, a proper subject of this
court’s appellate review.

See 20 C.F.R. §§ 404.981, 422.210(a).

On July 15, 2013, the

Appeals Council denied Plaintiff’s subsequent petition to reopen and change its earlier decision.
(Tr. 1).

In both instances, the Appeals Council acknowledged Dr. Wilson’s psychological

evaluation, but concluded that, because it post-dated the ALJ’s decision and provided an analysis
of Plaintiff’s condition at a later time, the records from the evaluation did not affect the ALJ’s
decision about whether the claimant was disabled on or before April 14, 2011. (Tr. 1, 14).

1

The record indicates that Dr. Wilson relied on the same records that were made available in this case to the
ALJ and Appeals Council.

2

At the time of Plaintiff’s ALJ hearing, Plaintiff was forty years old and had an eighth
grade education.

(Tr. 76-77).

manager, cook, and waitress.

Plaintiff has previously worked as a home care provider,

(Tr. 78, 89).

With regard to her domestic life, Plaintiff testified

that she had been living in a storage building on her boyfriend’s mother’s property for a little
over a year. (Tr. 77).
food stamps.

Plaintiff explained to the ALJ that the only income she receives is from

(Tr. 77).

Plaintiff complains that she suffers from severe panic disorder with agoraphobia,
depression, and anxiety disorder.

(See Tr. 60, 78, 196).

According to Plaintiff, she has panic

attacks three to four times a week, each lasting approximately eight to ten minutes. (Tr. 81).
Plaintiff believes these panic attacks are triggered by going outside and that they have limited her
ability to engage in substantial gainful activity since November 1, 2009. (Tr. 82, 160, 164,
196). Plaintiff claims to have lost ten jobs due to panic attacks, including her job as a manager
at Shoney’s which she held for thirteen-and-a-half years.

(Tr. 84-86).

Plaintiff testified that,

while at Shoney’s, she did not know how to control her panic attacks, and they sometimes
occurred six to ten times a day causing her to blackout.

(Tr. 85).

Since working at Shoney’s, Plaintiff has not been able to hold a job for more than six
months at a time. (Tr. 86).2

Plaintiff has consistently been noncompliant in maintaining her

medical treatments (Tr. 344, 398), and has never consistently taken prescribed medication. (Tr.
83-83). Plaintiff testified that even with appropriate medical treatment she still could not work
due to her panic attacks.

(Tr. 84).

At the time of the onset of her alleged disability, Plaintiff

2

The court notes that a complete and detailed account of Plaintiff’s employment history is absent from the
record. The record contains only Plaintiff’s testimony, ambiguous earnings records (Tr. 168-191), and a mostly
blank “Work History Report,” which Plaintiff was unable to complete. (Tr. 226).
What is clear from the record is that Plaintiff has been frequently employed, even after she began suffering
from panic attacks. Plaintiff’s hearing testimony, for example, suggests she held and lost (due to panic attacks) at
least ten jobs in the preceding ten years. (See Tr. 86).

3

was a cook at Huddle House. (Tr. 77-78). She had been working for about six months when
she testified she was terminated due to her panic attacks. (Tr. 77-78).
Prior to her alleged period of disability, Plaintiff received treatment at various institutions
for her health issues.

In June 2006, Plaintiff was seen at Polk Medical Center for a panic attack

that Plaintiff claimed was brought on by stress at home.

(Tr. 327). From July 12 to 17 of the

same year, Plaintiff was admitted to Cobb Douglas Community Service because of suicidal
ideations and depression.

(Tr. 267).

Upon her discharge, Plaintiff was prescribed Prozac and

Vistarl to be taken daily.

(Tr. 267-68).

On March 10, 2009, Plaintiff received treatment for a

urinary tract infection and acute abdominal and flank pains at Stringfellow Memorial Hospital.
(Tr. 301). She was discharged with medication management.

(Tr. 301-19). On May 17,

2009, Plaintiff returned to Stringfellow with an unremarkable laceration on her left leg. (Tr.
290).
During her alleged period of disability, Plaintiff was treated sporadically at Calhoun
Celburne Mental Health Clinic (“CCC”).

Although Plaintiff had first visited CCC in 2008,

Plaintiff was unable to receive medication for her panic attacks because she was unable to return
to the clinic on a regular basis due to transportation issues.

(Tr. 80).

In June 16, 2010,

Plaintiff returned to the CCC and was given a tentative diagnosis of panic disorder with
agoraphobia and depression.

(Tr. 333, 337).

On July 16, 2010, Plaintiff overslept and missed

a follow-up appointment with a CCC therapist, which was rescheduled.

(Tr. 344).

On

February 18, 2011, Plaintiff returned to CCC for a third time and received inpatient psychiatric
treatment. (Tr. 395).

At this intake, Plaintiff’s therapist, Bonne Evans, found Plaintiff to have

a poor history of compliance with treatment.

(Tr. 398; see also 80-84, 87, 344, 398). Plaintiff

4

was not provided with medication management, and was told to attend individual therapy. (See
Tr. 80, 398).
On March 18, 2011, Plaintiff returned for a follow-up appointment with Evans and Dr.
Maurice Jeter at Jacksonville Mental Health Clinic. (Tr. 403-08).

Evans and Dr. Jeter found

Plaintiff to be active and cooperative, participating in developing an ongoing treatment plan.
(Tr. 408). Their plan involved no immediate medication, but in conformity with Evans’s prior
recommendations, anticipated future individual therapy sessions.

(See Tr. 80, 406-07).

After applying for benefits, Plaintiff was the subject of several mental health
examinations during the relevant period.

On August 27, 2010, Plaintiff attended a

psychological consultative examination conducted by Dana Davis, Ph.D. (Tr. 346-48). At
this appointment, Plaintiff reported that she had some periods of homelessness, but had friends
that let her stay with them.

(Tr. 346). Plaintiff reported that she was anxious and jittery and

continued to suffer from panic attacks.

(Tr. 347).

Dr. Davis performed a mental status

examination, and found that, although Plaintiff’s symptoms might fit generalized anxiety
disorder, her description of her panic attacks did not seem credible. (Tr. 347-48). Dr. Davis
believes that Plaintiff’s descriptions of her panic attacks were atypical, and her episodes “seemed
to be simply more behavioral acting-out.”

(Tr. 347).

On September 3, 2010, Plaintiff underwent a psychiatric review from Robert Estock,
M.D., a State Agency medical consultant. (See Tr. 363-75). Dr. Estock found that Plaintiff
had only a mild limitation in restriction on activities of daily living, difficulties in maintaining
social functioning, and difficulties in maintaining concentration, persistence, or pace.

(Tr. 373).

Furthermore, Dr. Estock found Plaintiff had no episodes of decompensation. (Tr. 373). He

5

concluded that, based on the Listing 12.04 for affective disorders and Listing 12.06 for
anxiety-related disorders, Plaintiff’s impairments were not severe.

(Tr. 375).

In addition to the medical expert’s evaluations, Plaintiff’s friend, Edith Feldser, submitted
a Third Party Function Report detailing her knowledge of Plaintiff’s situation. (Tr. 205-12).
This report largely confirmed that Plaintiff is mostly independent in activities of daily living.
(See Tr. 205-212). Feldser indicated that Plaintiff “fears going outside” and suffers from panic
attacks, but also that Plaintiff lives alone, sometimes prepares her own meals, and does her own
cleaning and laundry. (See Tr. 205-07, 212).
Based on Plaintiff’s RFC and vocational profile (age, education, and past work
experience), the ALJ elicited testimony from vocational expert Dr. William Green, indicating
that a hypothetical individual, who was similarly situated in the relevant respects could perform
Plaintiff’s past relevant work as a manager, a waitress, and a cook. (Tr. 65, 89-92). Based on
the vocational expert’s testimony, Plaintiff’s testimony, and the rest of the record at the time of the
hearing, the ALJ found that Plaintiff was not disabled under the Act.

II.

(Tr. 66).

ALJ Decision
Disability under the Act is determined under a five-step analysis. 20 C.F.R. ‘ 404.1520.

First, the ALJ must determine whether the claimant is engaging in substantial gainful activity. Id.
§ 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing significant
physical or mental activities. Id. § 404.1572(a). “Gainful work activity” is work that is done for pay
or profit. Id. § 404.1572(b). If the ALJ finds that the claimant engages in substantial gainful activity,
then the claimant cannot claim disability. Id. § 404.1520(b). Second, the ALJ must determine
whether the claimant has a medically determinable impairment or a combination of medical
impairments that significantly limits the claimant’s ability to perform basic work activities. Id. §
404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability. Id. Third, the

6

ALJ must determine whether the claimant’s impairment meets or medically equals the criteria of an
impairment listed in the federal regulations. See id. §§ 404.1520(d), 404.1525, 404.1526. If such
criteria are met, the claimant is declared disabled. Id. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under the
third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ must first
determine the claimant’s residual functional capacity (“RFC”), which refers to the claimant’s ability to
work despite her impairments. Id. § 404.1520(e). In the fourth step, the ALJ determines whether the
claimant has the RFC to perform past relevant work. Id. § 404.1520(a)(4)(iv). If the claimant is
determined to be capable of performing past relevant work, then the claimant is deemed not disabled.
Id. If the ALJ finds the claimant unable to perform past relevant work, then the analysis proceeds to
the fifth and final step. Id. § 404.1520(a)(4)(v). In the last part of the analysis, the ALJ must
determine whether the claimant is able to perform any other work commensurate with her RFC, age,
education, and work experience. Id. § 404.1520(g). Here, the burden of proof shifts from the
claimant to the ALJ to prove the existence, in significant numbers, of jobs in the national economy that
the claimant can do given her RFC, age, education, and work experience. Id. §§ 404.1520(g),
404.1560(c).
In the present case, after considering the record in its entirety as it existed at that time, the
ALJ determined that Plaintiff has not engaged in substantial gainful activity and has a combination of
severe impairments of depression and panic disorder. (Tr. 60). However, with regard to the third

prong, the ALJ determined that Plaintiff=s impairment neither met nor equaled Listing 12.04 or
Listing 12.06 under the Listings of Impairments, see 20 C.F.R. § 404.1520(a)(4)(iii). (Tr. 61).
The ALJ noted that “[n]o medical expert has concluded that the claimant’s impairments meet or
equal a listed impairment.”

(Tr. 61).

Next, the ALJ considered the requirements of

“Paragraph B” of each Listing, each of which require the mental impairments to result in at least

7

two of the following: marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration, persistence, or
pace; or repeated episodes of decompensation, each for extended duration.

See 20 C.F.R. Pt.

404, Subpt. P, App. 1. Because Plaintiff had no more than moderate restrictions or difficulties
in each of these categories, and no episodes of decompensation, the ALJ found the “Paragraph
B” criteria were not satisfied.

For many of these same reasons, the ALJ also found that Plaintiff

failed to present evidence establishing the presence of “Paragraph C” criteria, which requires
repeated episodes of decompensation, propensity toward decompensation, or the need for highly
supportive living arrangements.

See id.

Before proceeding to the fourth and fifth prongs of the sequential analysis, the ALJ
completed a RFC assessment. (Tr. 62-65).

In completing this assessment, the ALJ found that,

although Plaintiff’s medically determinable impairments could reasonably be expected to cause
her alleged symptoms, Plaintiff’s statements concerning the intensity, persistence, and limiting
effects of her symptoms were not wholly credible. The ALJ noted that CCC treated Plaintiff
for her alleged mental impairments, but did not provide the treatment one would expect for a
totally disabled individual. (Tr. 64). For example, Plaintiff was not provided with medication
management, and was told to attend individual therapy.

(Tr. 80, 394-98, 400-09).

Furthermore, Plaintiff has generally remained noncompliant with her treatment.
80-84, 87, 344, 398).

(See, e.g., Tr.

Based on Plaintiff’s testimony, the ALJ found that Plaintiff’s impairment

was “generally under control” because she had successfully tolerated her impairments without
medication since 2007.

(Tr. 64; see also Tr. 82).

The ALJ also gave significant weight to both Dr. Davis and Dr. Estock’s evaluations,
which found Plaintiff neither credible nor severely disabled. (Tr. 65, 348). The ALJ found

8

that was Dr. Davis’s testimony consistent with the records and reports of Plaintiff’s treating
physicians and the evidence as a whole, and that Dr. Davis’s opinion is entitled to more weight
because he was a specialist in Psychology and a Program medical expert. (Tr. 65).

According

to the ALJ, Dr. Estock’s opinion was due significant weight, in part, because it provided specific
reasons for his opinion and was well grounded in the evidence of record.

(Tr. 65).

Conversely, the ALJ found the opinions of Plaintiff’s treating physicians too incomplete to serve
as the basis of an RFC.

(Tr. 65).

For these reasons, the ALJ determined that, notwithstanding her impairments, the
objective evidence showed that Plaintiff had the RFC to:
perform work at all exertional levels, with moderate limitations in her ability to
understand, remember and carry out detailed tasks, maintain attention and
concentration for extended periods of approximately two-hour segments, perform
activities within a schedule, maintain regular attendance and be punctual within
customary tolerances, sustain an ordinary routine without special supervision,
work in coordination with or proximity to others without being unduly distracted
by them, make simple work-related decisions, complete a normal workday and
workweek without interruptions from psychologically based symptoms, respond
to customers or other members of the general public, ask simple questions or
request assistance, respond appropriately to supervision, respond appropriately to
co-workers, maintain socially appropriate behavior and to adhere to standards of
neatness and cleanliness, respond to changes in work setting, be aware of normal
hazards and take appropriate precautions, and travel to unfamiliar places to use
public transportation.
(Tr. 62). Accordingly, at the fourth step, the ALJ determined that Plaintiff’s RFC did not
preclude Plaintiff from performing her past relevant work as a waitress, manager, or cook.
65).

(Tr.

In making this determination, the ALJ relied on Dr. Green, a vocational expert who

testified that a hypothetical individual of Plaintiff’s same age, education, past relevant work
experience, and RFC would be able to perform her past relevant work.

(Tr. 89-91).

Therefore, the ALJ ruled that Plaintiff is not disabled as that term is defined in the Act and that

9

Plaintiff, therefore, is not entitled to benefits from November 1, 2009, to the date of his decision,
April 4, 2011. (Tr. 66).
III.

Plaintiff=s Argument for Remand or Reversal
Plaintiff seeks to have the ALJ=s decision, which became the final decision of the

Commissioner following the denial of review by the Appeals Council, reversed, or in the
alternative, remanded for further consideration.

(See Pl.’s Mem. 9-25).

Plaintiff presents

several arguments: (1) the Appeals Council failed to remand based on report of evaluation of
psychologist Dr. Wilson; (2) ALJ failed to apply proper legal standard; (3) the ALJ failed to state
adequate reasons for finding claimant not credible; (4) Plaintiff’s impairments met Listings 12.04
and 12.06; (5) the ALJ failed to consider all of Plaintiff’s severe impairments; and (6) the ALJ
improperly drew adverse inferences from a lack of medical treatment.
IV.

(Pl. Mem. 1-2).

Standard of Review
The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838
(11th Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847
F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Section
405(g) mandates that the Commissioner’s findings are conclusive if supported by “substantial
evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).

The district court may

not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the
Commissioner; instead, it must review the final decision as a whole and determine if the decision
is reasonable and supported by substantial evidence.

See id. (citing Bloodsworth v. Heckler,

703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of evidence;
“[i]t is such relevant evidence as a reasonable person would accept as adequate to support a

10

conclusion.” See id. (quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported
by substantial evidence, the Commissioner’s factual findings must be affirmed even if the evidence
preponderates against the Commissioner’s findings. See id. While the court acknowledges that
judicial review of the ALJ’s findings is limited in scope, the court also notes that review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.

V.

Discussion
In light of the legal standards that apply in this case, the court rejects Plaintiff’s

arguments for remand or reversal. For the reasons outlined below, the court finds that the ALJ
relied on substantial evidence and the proper legal standards were applied.
A.

The Appeals Council Properly Considered Dr. Wilson’s Evaluation and
Report.

Plaintiff’s first and primary argument asserts that the Appeals Council failed to consider
the evaluation and report of Dr. Wilson (the “new evidence”).

(Pl. Mem. 9-12). Plaintiff only

argues that the new evidence should have resulted in Appeals Council review. (Pl. Mem. 9).
Specifically, at issue is whether the Appeals Council is required to consider a retrospective
physician evaluation that occurred ten months after the ALJ rendered its decision.
Many times, when a claimant properly presents new evidence to the Appeals Council, the
reviewing court must consider whether that new evidence renders the denial of benefits
erroneous.

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007).

New evidence must be reviewed only if it is material and relates to the period on or before the
date of the ALJ’s hearing decision.

Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,

1066 (11th Cir. 1994); 20 C.F.R. § 404.970(b).3

3

If the Appeals Council determines that the

At issue here is only whether Dr. Wilson’s new retrospective evaluation and report are material and
chronologically relevant. The evidence is clearly “new” because it came into existence over ten months after the
ALJ’s decision. (Tr. 36).

11

evidence does not render the denial erroneous, the Appeals Council must show in its written
denial that it has adequately evaluated the evidence.

Flowers v. Comm’r of Soc. Sec., 441 F.

App’x 735, 745 (11th Cir. 2011) (citing Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980)).
For the reasons outlined below, the court concludes that the Appeals Council’s written denial
amply reflects that it adequately evaluated Plaintiff’s new evidence and determined that the new
evidence was immaterial because it did not relate to the relevant time period.
1.

Adequate Evaluation of New Evidence in Written Denial

The threshold issue here is whether the Appeals Council showed in its written denial that
it adequately evaluated the evidence at issue.

If the Appeals Council merely “perfunctorily

adheres” to the ALJ’s decision, the Commissioner’s findings are not supported by substantial
evidence and the decision must be remanded for a determination based on the whole record.
Flowers, 441 F. App’x at 745. On the other hand, as the Eleventh Circuit has explained,
“because 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 F. App’x 901, 903 (11th Cir. 2011) (noting the Appeals Council had considered
and incorporated the new evidence into the record and therefore was not required to explain its
denial). A brief comparison of the two cases helps reconcile the apparent incongruity between
Flowers’s stringent “perfunctory adherence” standard and Burgin’s less demanding “thorough
explanation.”
In Flowers, the Eleventh Circuit held that the Appeals Council erred by not remanding
the case to the ALJ in light of significant new evidence the claimant had offered. 441 F. App’x
745. The Flowers court noted that the Appeals Council merely acknowledged that the claimant
had submitted new evidence, but “made no further mention of it or attempt to evaluate it.” Id.

12

But the Flowers court’s remand was not based solely on the Appeals Council’s failure to explain
how it assessed the evidence. Rather, the remand was based upon the reality in that case that
the new evidence created a “reasonable possibility” that if the ALJ had considered the evidence,
she may have more fully credited the testimony of the claimant and one of his supporting
witnesses.

Id. at 747.

Thus, Flowers concluded that the plaintiff’s new proffered evidence was

material (i.e., there was a reasonable possibility that the new evidence could change the ALJ’s
decision). Id. (“Given the materiality of Flowers’s new evidence to the ALJ’s RFC finding, the
Appeals Council’s failure to evaluate it, alone, requires us to remand this case to the Appeals
Council for a disability determination based ‘on the total record.”) (quoting Epps, 624 F.2d at
1273) (emphasis added).4 Importantly, the Eleventh Circuit appeared skeptical that the Appeals
Council adequately reviewed the evidence because the ALJ placed an “unusual” amount of
reliance on a nontreating physician while completely rejected an examining physician’s findings.
Id. at 745.
In Burgin, the Eleventh Circuit clarified what it means to adequately evaluate new
evidence in a written denial.

420 F. App’x at 903.

The Eleventh Circuit rejected the

claimant’s argument that the Appeals Council failed to adequately explain its denial of review
and refusal to remand.

Id.

In doing so, the court explained that:

[t]he [Appeals Council] must consider new, material, and chronologically relevant
evidence and must review the case if the ALJ’s decision is contrary to the weight
of the record evidence. When a claimant properly presents new evidence to the
[Appeals Council] and it denies review, we essentially consider the claimant’s
evidence anew to determine whether “that new evidence renders the denial of
benefits erroneous.” Thus, because a reviewing court must evaluate the
claimant’s evidence anew, the [Appeals Council] is not required to provide a
thorough explanation when denying review.

4

Thus, the Flowers analysis does not affect cases where the claimant presents new but immaterial evidence
to the Appeals Council, who perfunctorily adheres to the ALJ decision.

13

Id. (emphasis added) (internal citations omitted).

The key is this: The Burgin court, like the

Flowers court, found materiality to be of the utmost import.

See id. (noting remand was not

required because new evidence’s probative value was “slight and did not render denial of
benefits erroneous”).
Applying the teachings of Burgin and Flowers here, this court concludes that the Appeals
Council more than adequately demonstrated in its written denial that it adequately evaluated Dr.
Wilson’s report and evaluation.

Thus, this is not an instance where the Appeals Council

perfunctorily adhered to the ALJ’s decision.

Indeed, contrary to Plaintiff’s contention, the

Appeals Council twice articulated reasons why Dr. Wilson’s reports and evaluations did not
provide a basis for overturning the ALJ’s decision. This is evidenced by the Appeals Council’s
initial denial of Plaintiff’s request for review and its subsequent denial of Plaintiff’s request to
reopen. (Tr. 1, 14). According to the Appeals Council, in its initial denial of review on May
31, 2014:
We . . . looked at a psychological evaluation from David R. Wilson, PhD dated
February 28, 2012 and a Mental Health Source Statement from Dr. Wilson dated
February 29, 2012. The [ALJ] decided your case through April 14, 2011. This
new information is about a later time. Therefore, it does not affect the decision
about whether you were disabled beginning on or before April 14, 2011.
If you want us to consider whether you were disabled after April 14, 2011, you
need to apply again.
(Tr. 14). Although admittedly the Appeals Council did not provide a thorough analysis, it
provided more than a perfunctory adherence to the ALJ. Unlike the situation in Flowers, the
Appeals Council did not merely reference, without more, Dr. Wilson’s report and evaluation.
Instead, the Appeals Council stated that it found the new evidence was immaterial (i.e., the
evidence does not affect the disability decision because it did not address the relevant period —

14

the period before the date of the ALJ’s hearing decision).

(See Tr. 1, 14).

This distinguishes

the Appeals Council’s approach here from the incorrect approach taken in Flowers.
Therefore, based on the Appeals Council’s adequate evaluation in its written denial, the
court can conclude the Appeals Council provided more than a merely perfunctory adherence to
the ALJ’s decision. Accordingly, the Commissioner’s decision is due to be affirmed, as to the
new evidence, if Dr. Wilson’s report and evaluation were either irrelevant or immaterial.
2.

Materiality and Relevance

With respect to Plaintiff’s new evidence argument, two issues remain: relevancy and
materiality.

These are related but different standards.

New evidence is material “if there is a

reasonable possibility that the new evidence would change the administrative outcome.”
Flowers, 441 F. App’x at 745 (quoting Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987)).
New evidence is relevant if it relates to the period on or before the date of the ALJ’s hearing.
Keeton, 21 F.3d at 1066; 20 C.F.R. § 404.970(b).
In reality, at least in most cases, application of these standards and their analysis can be
inextricably tangled.
material.

If new evidence does not relate to the relevant time period, then it is not

Indeed, as demonstrated here, this is the basis upon which the Appeals Council twice

decided not to consider Dr. Wilson’s report and evaluation.

(Tr. 1, 14).5

The issue here is

whether it was reasonably possible for Dr. Wilson’s report and evaluation to change the ALJ’s
outcome. For the reasons discussed below, the court concludes there is simply not a reasonable
possibility that the evidence from Dr. Wilson would have altered the outcome. This conclusion
is indicated because, as the record facts noted below establish, his diagnosis was not relevant or
otherwise material.

5

Although it is not entirely possible, this Memorandum of Decision attempts to keep the analytical lines as
distinct as possible.

15

First, Dr. Wilson is a nontreating physician6 who conducted an evaluation on Plaintiff that
took place over ten months after the ALJ rendered its decision. Dr. Wilson expressly diagnosed
Plaintiff’s condition as of February 28, 2011, and did not attempt to assess her condition during the
relevant disability period. Moreover, the new evidence is not corroborated by -- and, in fact
contradicts -- the objective medical evidence gathered during the relevant disability period.
Finally, the new evidence is irrelevant to the state of Plaintiff’s impairment during the relevant
time frame because Dr. Wilson’s assessment is premised on entirely changed circumstances
related to Plaintiff. Taken together, these facts suggest that the probative value of the new
evidence is slight and does not render denial of benefits erroneous. See Burgin, 420 F. App’x at
903.
Second, evidence related to Dr. Wilson’s assessment is immaterial because it does not
relate to, or reflect on, the disability period. Keeton, 21 F.3d at 1066; 20 C.F.R. § 404.970(b).
The Eleventh Circuit has concluded that retrospective diagnoses are only entitled to deference
where corroborated by evidence contemporaneous with the relevant period. Mason v. Comm’r of
Soc. Sec., 430 F. App’x 830, 832 (11th Cir. 2011). Specifically, the Mason court discredited
retrospective diagnoses that did not state that it pertained to the disability period and that conflicted
with the medical evidence from the relevant period. Id. at 832-833. Likewise, other opinions
indicate that even a treating physician’s retrospective opinion may be rejected if it is conclusory or
inconsistent with other evidence on the record. See, e.g., Wheeler v. Heckler, 784 F.2d 1073,

6

As a nontreating physician (see Tr. 36), Dr. Wilson’s opinions, unlike those of treating physicians, are not
entitled to any special deference. See Flowers, 441 F. App’x at 740 (“[T]he opinions of treating physicians are given
more weight than non-treating physicians . . . .”); 20 C.F.R. § 404.1527(c)(2); see also Boyd v. Heckler, 704 F.2d
1207, 1211 (11th Cir. 1983) (noting that with respect to retrospective diagnoses, the Eleventh Circuit has held that a
treating physician is entitled to significant weight, even though he did not treat the claimant until after the relevant
determination date), superseded on other grounds by 42 U.S.C. § 423(d)(5).

16

1075 (11th Cir. 1986); Broz v. Astrue, Case No. 3:07-cv-00204-RV-EMT, 2008 WL 1995084
(N.D. Fla. May 5, 2008).7
Similarly here, Dr. Wilson’s evaluation of Plaintiff occurred over ten months after the
ALJ’s decision finding Plaintiff not disabled. (Tr. 36). As in Mason, the new evidence does not
state that it pertains to the relevant period. See id. 832-33. Instead, Dr. Wilson’s report and
evaluation indicates only a belated analysis of Plaintiff’s impairment (i.e., one outside the relevant
disability period). As explained by the Appeals Council, Plaintiff’s impairment at the end of
February 2012, is not relevant to the Appeals Council’s review of her impairment between
November 2009 and April 2011. (See Tr. 14 (“If you want us to consider whether you were
disabled after April 14, 2011, you need to apply again.”)).
Third, the new evidence also conflicts with the medical evidence from the relevant
disability period.8 Dr. Wilson’s report directly contradicts the evaluations from both Dr. Estock
and Dr. Davis, who evaluated Plaintiff during the relevant period and found that she was not
credible and her impairments were not severe. (Tr. 346-48, 363-76). Importantly, the ALJ
found the evaluations by Drs. Estock and Davis to conform to the record as a whole, and it is that
record that reflects Plaintiff’s status during the relevant disability period. (Tr. 65). Thus, while
Drs. Estock and Davis found Plaintiff to have only moderate restrictions (Tr. 373), Dr. Wilson
found Plaintiff had much more severe limitations. (Tr. 34). Specifically, Dr. Wilson found

7

Boyd, Mason, Wheeler, and Broz are cases where retrospective diagnoses were considered by an ALJ, not
the Appeals Council. These decisions involve claims where the insured status expired prior to the ALJ’s decision.
This placed the ALJ in a position to consider at hearing retrospective evidence (i.e., evidence coming about after the
relevant time period, which would otherwise typically end on the date of the ALJ’s decision).
8

Although Dr. Wilson’s evaluation and report might be construed to corroborate part of Plaintiff’s
subjective pain assessment, it is otherwise entirely unsupported by the record, including the objective medical
evidence.

17

Plaintiff to have “extreme”9 limitations regarding Plaintiff’s ability to: understand, remember, and
carry out detailed instructions; maintain attention and concentration for extended periods; perform
activities within a schedule, maintain regular attendance, and be punctual with customary
tolerances; sustain an ordinary routine; work I coordination or proximity to others without being
distracted; complete a normal workday; and get along with coworkers without distracting them or
exhibiting behavioral extremes. (Tr. 34-35). Dr. Wilson similarly concluded that Plaintiff had
numerous “marked” limitations. (Tr. 34-35). Accordingly, the new evidence conflicts in almost
every material respect with the findings made by medical professionals during -- and even more
specifically the objective medical evidence from -- the relevant period.10
For the reasons outlined above, to the extent that the new evidence could be said to relate to
a relevant time period at all,11 the evidence was immaterial and entitled to so little weight it was
appropriately disregarded by the Appeals Council. Therefore, with regard to the consideration of
the new evidence, the Appeals Council is due to be affirmed.

9

An “extreme” limitation is one that is more limiting than “mild,” “moderate,” or “marked” limitations.
(See Tr. 34).
10

The court is mindful that in some instances, it may be possible for a retrospective diagnosis to shed light on
a Plaintiff’s earlier state of disability. See, e.g., Watkins v. Astrue, 925 F. Supp. 2d 1257, 1262-65 (N.D. Ala. 2013)
(holding evidence new, material, and relevant even though pertinent report described event occurring four months
after the ALJ’s decision because the medical evaluation described symptoms that “due to their nature and severity,
could bear on [t]he claimant’s condition during the relevant period”). As presented here, however, Dr. Wilson’s
evaluation of Plaintiff’s conditions during the relevant period differs so dramatically from the assessments actually
made during that time period that it simply cannot be said that he has provided an accurate view of her earlier
condition. Just by way of example, at the time of Dr. Wilson’s evaluation, Plaintiff complained of significant back
pains, which she claims made it hard to even walk. (Tr. 36-37). Plaintiff was also on medication to help her sleep
(Tr. 37). Of course, the ALJ found Plaintiff’s prolonged absence of medication relevant. (Tr. 64). Plaintiff’s
personal life had changed significantly, as she reported to Dr. Wilson that she was single and now living in an
abandoned house without power. (Compare Tr. 37-38, with Tr. 80). Additionally, even Plaintiff’s description of
her background varied in some ways from her earlier evidence. For instance, Plaintiff’s education level escalated
from a relatively consistent eighth grade level during the earlier proceedings to tenth grade level for Dr. Wilson.
(Compare Tr. 38, with Tr. 77).
11

To be clear, some of the medical records and evidence that Dr. Wilson relied on were before the ALJ at
the time of his decision. (See Tr. 36).

18

B.

The ALJ Applied Proper Legal Standard for Determining Whether Plaintiff
Could Perform Past Work.

Plaintiff’s second argument is that the ALJ failed to apply the proper legal standard for
determining whether Plaintiff can perform past work and that the ALJ’s finding was not
supported by substantial evidence.

(Pl. Mem. 12-15). Plaintiff does not specify which legal

standard the ALJ failed to apply in making this assessment, but regardless, the record is clear that
the ALJ properly analyzed Plaintiff’s ability to perform past work.
The ALJ correctly evaluated Plaintiff’s application using the Commissioner’s five-step
sequential evaluation process. (Tr. 11-12).

At step four, the ALJ must determine whether the

claimant could perform her past relevant work.

See 20 C.F.R. § 404.1520(a)(4)(iv).

At this

step, the claimant bears the burden of proving she cannot perform her past relevant work.

See

Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990); see also Jackson v. Bowen, 801 F.2d
1291, 1293-94 (11th Cir. 1986) (claimant must show inability to do previous type of work, not
merely specific job held). To determine if the claimant can perform her past relevant work, an
ALJ must assess the claimant’s RFC. 20 C.F.R. § 404.1520(e). A claimant’s RFC is an
assessment of what a claimant can do despite her limitations and is based on an evaluation of the
relevant evidence in the record. 20 C.F.R. §§ 404.1545(a)(1). At a hearing, the ALJ has the
responsibility of assessing the claimant’s RFC. 20 C.F.R. § 404.1546(c); Cooper v. Astrue, 373
F. App’x 961, 962 (11th Cir. 2010) (“The task of determining a claimant’s ability to work is within
the province of the ALJ, not a doctor.”). Based on a claimant’s RFC, the ALJ weighs the
evidence and decides whether it supports a finding that the claimant could perform past work.
This court will not disturb the ALJ’s decision if, in light of the record as a whole, it appears
to be supported by substantial evidence. Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir.
1997). Substantial evidence is less than a preponderance, and is only such relevant evidence that

19

a reasonable person would accept as adequate to support a conclusion. Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005). Here, the court must not reweigh the evidence; rather, it is
limited to determining whether the record as a whole contains sufficient evidence to permit a
reasonable mind to conclude that the claimant is not disabled. For the following reasons, this
court finds that the ALJ applied proper legal standards and that his determinations regarding
Plaintiff’s limitations are supported by substantial evidence.
Before proceeding to the fourth prong of his sequential analysis, the ALJ completed the
RFC assessment by looking to the entire record — including Plaintiff’s own testimony and her
medical records. (Tr. 64-65). Plaintiff does not appear to directly challenge this assessment.
The ALJ questioned Dr. Green, a vocational expert, regarding a hypothetical individual with
Plaintiff’s same age, education, past relevant work experience, and RFC.

(Tr. 89-91). Dr.

Green testified that a similar claimant would not be precluded from performing Plaintiff’s past
work experience.

(Tr. 90). Finally, the ALJ concluded that given (1) Plaintiff’s RFC, (2) the

demands of her past work as a waitress, cook, and manager, and (3) the testimony of Plaintiff’s
vocational expert, Plaintiff could perform her past relevant work experience. (Tr. 65).
This finding was supported by substantial record evidence. The ALJ placed significant
weight on the evaluations completed by Drs. Davis and Estock. (Tr. 64-65). Dr. Davis provided
a consultative examination of Plaintiff on August 27, 2010, and concluded that Plaintiff’s
descriptions were not particularly credible. (Tr. 348). Instead, Dr. Davis found Plaintiff to be
merely acting out behaviorally. (Tr. 347). The ALJ found this opinion was due to be given
significant weight for two reasons. First, Dr. Davis’s testimony was consistent with the medical
records and reports of Plaintiff’s treating physicians and the evidence as a whole. Second, Dr.
Davis was a specialist in Psychology and a Program medical expert. (Tr. 65).

20

Similarly, the ALJ gave significant weight to Dr. Estock, the State Agency medical
consultant who provided assessments at the initial level and found Plaintiff was not disabled.
(Tr. 363-76).

According to the ALJ, Dr. Estock’s opinion showed that Plaintiff was only

moderately limited in key areas and that Plaintiff had no episodes of deterioration.

(See Tr.

373). This diagnosis served as the basis of the ALJ’s hypothetical questions to the vocational
expert at the hearing.

(See Tr. 90).

As discussed above, the court relied on Dr. Green’s

testimony as a vocational expert, which supported the ALJ’s finding that Plaintiff could perform
her past relevant work experience. (Tr. 90).
Ultimately, it was Plaintiff who failed to carry her burden of proving that she could not
perform past relevant work. The ALJ applied the proper legal standards, and his findings were
supported by substantial evidence.
C.

The ALJ Stated Adequate Reasons for Finding Plaintiff Not Credible.

Plaintiff’s third argument is that the ALJ failed to state adequate reasons for finding
claimant not credible.

(Pl. Mem. 15-17).

This argument addresses the ALJ’s findings

regarding Plaintiff’s subjective complaints of pain.

The Eleventh Circuit has established a

three-part pain standard that applies whenever a claimant asserts disability through testimony of
pain or other subjective symptoms. A claimant must show (1) evidence of an underlying
medical condition and either (2) objective medical evidence confirming the severity of the
alleged symptoms or (3) that the medical condition could be reasonably expected to give rise to
the alleged symptoms. See 20 C.F.R. § 404.1529; Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir. 2005); Wilson v. Barnhart, 284 F.3d 1219, 1225-26 (11th Cir. 2002); Edwards v. Sullivan,
937 F.2d 580, 584 (11th Cir. 1991).

If the objective medical evidence does not confirm the

severity of the alleged symptoms but the claimant establishes that her impairment could
reasonably be expected to produce her alleged symptoms, then the ALJ must evaluate the
21

intensity and persistence of her alleged symptoms and their effect on her ability to work. See 20
C.F.R. § 404.1529(c)(1); Wilson, 284 F.3d at 1225-26.

Here, the ALJ found that Plaintiff met

this pain standard, and then continued in the analysis and evaluated Plaintiff’s credibility.

(Tr.

62-65).
Of course, even when a claimant meets the pain standard, that alone does not require an
ALJ to accept a claimant’s complaints of pain. The Eleventh Circuit has made clear that
meeting the judicial pain standard is only a threshold inquiry and that the ALJ may still reject the
complaints by offering specific reasons. See Foote v. Chater, 67 F.3d 1553, 1560-61 (11th Cir.
1995). Even though the ALJ found Plaintiff established a medical condition which could
reasonably be expected to cause her alleged pain, that does not mean that the ALJ cannot
discredit her testimony regarding the level of severity of the alleged pain and whether it actually
caused the limitations alleged.

See id.

Therefore, the ALJ was still required to undertake a

credibility analysis; he did so, and the issue now becomes whether his credibility findings were
proper.
The reasons given for discrediting pain testimony must be based on substantial evidence.
Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992).

The Eleventh Circuit has held that

this requires an “explicit articulation of the reasons justifying a decision to discredit a claimant’s
subjective pain testimony.”

Moore, 405 F.3d at 1212 n.4.

A clearly articulated credibility

finding supported by substantial evidence in the record will not be disturbed by a reviewing
court. MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986).
In this case, the ALJ’s decision reveals that he correctly applied these standards and
clearly articulated numerous reasons for discrediting Plaintiff’s subjective pain testimony based
on the entirety of the record as it existed at the time of his decision.

22

(See Tr. 62-65). First, the

ALJ noted that Plaintiff cared for her personal needs independently, prepared her own meals, and
occasionally interacted with others socially.

(Tr. 63; see Tr. 229-36).

Second, the ALJ

considered Plaintiff’s friend’s report on behalf of Plaintiff, which largely confirmed Plaintiff’s
testimony that she lived alone, prepared some of her own meals, and could do housework
depending on her state of mind. (Tr. 63; see Tr. 205-12).

Plaintiff counters that her ability to

participate in daily activities of short duration is not dispositive.

(Pl. Mem. 16-17 (citing Lewis,

125 F.3d at 1441); Flynn v. Heckler, 768 F.2d 1273, 1275 (11th Cir. 1985); Venette v. Apfel, 14 F.
Supp. 2d 1307, 1314 (S.D. Fla. 1998)). To be considered disabled, Plaintiff argues, a claimant
need not be bedridden or unable to perform any household chores. Id. (citing Bennett v. Barnhart,
288 F. Supp. 2d 1246, 1252 (N.D. Ala. 2003)). However, as the ALJ made clear, his decision was
not based solely on Plaintiff’s ability to perform daily activities. (See Tr. 63-65).

The ALJ also completed a thorough review of Plaintiff’s medical records. (See Tr.
63-64).

In his decision, he articulated each incident of Plaintiff’s treatment or hospitalization

during the relevant period (and, in addition, some prior to that). Among the medical evidence
considered were the evaluations by medical experts, Drs. Davis and Estock. (See Tr. 345-48,
363-76).

In relevant part, Dr. Davis report concluded that, although Plaintiff’s description of

symptoms might fit a generalized anxiety disorder, Plaintiff’s descriptions of panic attacks were
not particularly credible.

(Tr. 348).

The ALJ correctly noted that Dr. Davis’s evaluation is

due to be given relatively greater weight because he is a specialist. (Tr. 65); see 20 C.F.R. §§
404.1527(d)(5); 416.927(d)(5).

Similarly, Dr. Estock found that Plaintiff had only “moderate”

limitations with no episodes of decompensation, and further concluded that Plaintiff’s
impairments were not severe based on Listing 12.04 for affective disorders and Listing 12.06 for
anxiety-related disorders.

(Tr. 373).

The ALJ deemed the remainder of Plaintiff’s medical

history to be consistent with the findings of both Dr. Davis and Dr. Estock.
23

(Tr. 65).

Finally, the ALJ concluded that Plaintiff was “generally under control.”

(Tr. 64). The

ALJ made this finding, in part, because Plaintiff reported there were time periods when she did
not consistently take medication for her alleged impairments.

(See Tr. 82). To this end, the

ALJ found it relevant that the record evidence showed Plaintiff was noncompliant with her
treatment and that the type of treatment prescribed was not what one would expect from a totally
disabled individual.
this conclusion.

(Tr. 64).

Certainly, the record evidence provides a substantial basis for

On February 18, 2011, when Plaintiff returned to CCC for a third time,

Plaintiff’s therapist, Bonne Evans, found Plaintiff to have a poor history of compliance with
treatment.

(Tr. 398; see also 80-84, 87, 344, 398). Plaintiff was not provided with medication

management, but rather was told to attend individual therapy. (Tr. 80, 394-98, 400-09).

Later,

on March 18, 2011, Plaintiff returned to Jackson Mental Health Clinic for a follow-up
appointment with Evans and Dr. Jeter for individual therapy (Tr. 403).

At this appointment,

Plaintiff was found to be active and cooperative in developing a treatment plan, which again did
not immediately anticipate medication management, only individual therapy. (Tr. 80, 408).
After considering the above-referenced evidence, the ALJ found 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 [RFC]
assessment.” (Tr. 64).

Because the ALJ based his opinion of Plaintiff’s credibility on the

entire record, including Plaintiff’s relevant medical history and physician reports, Plaintiff’s own
reports of her functionality, and third-party reports of her condition, the court concludes that the
ALJ’s reasons given for discrediting pain testimony are based on substantial evidence.

24

Accordingly, this clearly articulated credibility finding with substantial supporting evidence in
the record will not be disturbed by this reviewing court.
D.

Plaintiff Does Not Meet the Requirements Under Listings 12.04 and 12.06.

As part of her fourth argument, Plaintiff contends that her impairments met or equaled
Listing 12.04, for affective disorders, and 12.06, for anxiety related disorders.12
17-23). The court disagrees.

(Pl. Mem.

Plaintiff has not pointed to any specific evidence to support this

conclusion; rather, she has attempted to submit, wholesale, several of her medical records
through her briefing.

(Pl. Mem. 17-23). Although Plaintiff was diagnosed with an affective

disorder (depression) and an anxiety-related disorder (panic disorder), these diagnoses alone are
insufficient to satisfy the criteria of a listed impairment. See Carnes v. Sullivan, 936 F.2d 1215,
1218 (11th Cir. 1991) (“Diagnosis of a listed impairment is not alone sufficient; the record must
contain corroborative medical evidence supported by clinical and laboratory findings.” (citing 20
C.F.R. §§ 404.1525, 416.925, 404.1526, 416.926)).

A complete review of the record makes

clear that Plaintiff has failed to meet or equal all the requirements of Listing 12.04 and Listing
12.06.
At step three of the sequential evaluation, the ALJ was required to determine whether
Plaintiff’s impairments met or equaled an impairment listed in the regulations Listing of
Impairments (i.e., a “Listing”).

See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see

also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (providing that a claimant may
establish disability if she proves her impairments meet or equal a Listing).

To “meet” a Listing,

a claimant must have a diagnosis included in the listings and provide medical reports
documenting that the conditions meet the specific criteria of the listings.
12

See Wilson, 284 F.3d

Although Plaintiff does not identify under which subsection she intends to proceed, the court concludes, as
the Commissioner has concluded (Def. Mem. 17) that the only plausible challenge is under subsection “B” of each
listing.

25

at 1221. For a claimant to show that his impairment matches a Listing, she must establish that
it meets all of the specified medical criteria.
U.S. 521, 530 (1990).

20 C.F.R. §§ 404.1525; Sullivan v. Zebley, 493

To “equal” a Listing, by contrast, the medical findings must be at least

equal in severity and duration to the listed findings.

See Wilson, 284 F.3d at 1224.

A claimant

cannot qualify under an “equivalence” theory by showing that the overall impact of his unlisted
impairment, or combination of impairments, is as severe as that of a listed impairment. See
Sullivan, 493 U.S. at 531.
Listing 12.04(B) and Listing 12.06(B) both provide that a claimant should be found
disabled by way of affective disorder or anxiety-related disorder which results in at least two of the
following: marked restriction of activities of daily living; marked difficulties in maintaining social
functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated
episodes of decompensation, each of extended duration. A “marked” limitation means more than
moderate but less than extreme.
The Eleventh Circuit explained the listing of impairments in Wilson v. Barnhart:
To “meet” a Listing, a claimant must have a diagnosis included in the Listings and
must provide medical reports documenting that the conditions meet the specific
criteria of the Listings and the duration requirement. To “equal” a Listing, the
medical findings must be “at least equal in severity and duration to the listed
findings.” If a claimant has more than one impairment, and none meets or equals a
listed impairment, the Commissioner reviews the impairments’ symptoms, signs,
and laboratory findings to determine whether the combination is medically equal to
any listed impairment.
284 F.3d at 1224 (internal citations omitted). Additionally, “[f]or a claimant to show that his
impairment matches a listing, it must meet all of the specified medical criteria.” Sullivan, 493
U.S. at 530. “An impairment that manifests only some of those criteria, no matter how severely,
does not qualify.” Id.

26

Substantial evidence supports the ALJ’s conclusion that Plaintiff has failed to meet her
burden of proving her impairments met or equaled either of these Listings.

First, the ALJ gave

significant weight to Dr. Estock’s evaluation Plaintiff during the relevant period, which found
that Plaintiff did not have a serious mental impairment.

(See Tr. 61, Tr. 363-75). Dr. Estock

found only moderate, and not marked, limitations and restrictions in the relevant categories
under both Listing 12.04 and Listing 12.06.

(Tr. 373).

Dr. Estock further found that Plaintiff

had suffered no episodes of decompensation. (Tr. 373). Plaintiff has not presented substantial
evidence from the relevant time period that contradicts Dr. Estock’s evaluation.
Specifically, with respect to her activities of daily living, the ALJ found Plaintiff had a
moderate restriction because Plaintiff reported she could physically take care of herself unless
she has a panic attack.

(See Tr. 231).

In addition, the ALJ found it relevant that Plaintiff

reported that she could sometimes prepare meals and do household chores. (See Tr. 231, 375).
Plaintiff’s friend, Edith Feldser, provided a third-party report to the ALJ, which largely
confirmed that Plaintiff is independent in activities of daily living.

(See Tr. 205-212).

Although Feldser reported Plaintiff “fear[ed] going outside” and suffered from panic attacks,
Feldser also suggested that Plaintiff lived alone,13 sometimes prepared her own meals, and did
her own cleaning and laundry.

(See Tr. 205-07, 212).

With regard to Plaintiff’s social

functioning, the ALJ found that Plaintiff only had moderate difficulties because she reported
spending time with other people and now has two or three friends.

(See Tr. 234). With regard

to concentration, persistence, or pace, the ALJ found that Plaintiff had only moderate difficulties
because Plaintiff had a history of maintaining employment, which required her to focus her
attention long enough to perform tasks. Finally, again, Plaintiff has provided no evidence of
decompensation.
13

The record demonstrates that from time to time Plaintiff lived with friends. (Tr. 29).

27

Therefore, based on this and other substantial evidence, the ALJ concluded that the
requirements of Listings 12.04 and Listing 12.06 were not satisfied.

Plaintiff has failed to

present any evidence suggesting that she had “marked” restrictions or any episodes of daily
living during the relevant time period.

Indeed, at the time of her hearing, Plaintiff had not

presented any medical expert who had concluded Plaintiff’s impairments met or equaled any
Listing.

(See Tr. 61).

Because the record shows that the ALJ’s decision was based on

substantial evidence, the court finds the ALJ’s decision that Plaintiff’s impairments, considered
singly and in combination, did not meet or equal the Listings of 12.04 or 12.06 is due to be
affirmed.
E.

The ALJ Properly Considered All of Plaintiff’s Impairments.

Inexplicably, Plaintiff argues that the ALJ failed to consider all of Plaintiff’s severe
impairments, because the ALJ “did not consider [Plaintiff’s] panic attacks.” (Pl. Mem. 23).
However, as Plaintiff admits immediately after making this argument, the ALJ considered
Plaintiff’s depression NOS and panic disorder as severe impairments.

(Id. at 23; see also Tr.

60). The court concludes that, based on Plaintiff’s own admission and the ALJ’s numerous
references to Plaintiff’s panic attacks, the ALJ did not fail to consider these events.
F.

The ALJ Properly Considered Plaintiff’s Lack of Medical Treatment.

Finally, Plaintiff argues that the ALJ improperly drew adverse inferences from the lack of
medical treatment she received. (Pl. Mem. 25-27). Plaintiff alleges that the ALJ erred by not
asking any follow-up questions and failed to otherwise develop the record on the issue. For the
reasons outlined below, the court concludes that the ALJ did not improperly draw adverse
inferences from Plaintiff’s lack of medical treatment.
As an initial matter, the Eleventh Circuit has recognized that a claimant’s failure to seek
treatment for a period of time is a factor which may be considered against a claimant. See, e.g.,
28

Dyer, 395 F.3d at 1211; Watson v. Heckler, 738 F.2d 1169, 1173 (11th Cir. 1984). For example,
in Dyer v. Barnhart, the ALJ discredited the claimant’s subjective complaints of pain testimony by
explaining that the alleged pain had not required routine or consistent treatment, and the claimant
often went for months or years without complaining to his physicians of this pain. 395 F.3d at
1211. In that case, the Eleventh Circuit reversed the district court’s opinion to the contrary, and
concluded that the ALJ’s findings and denial of benefits were correct. Id. at 1212. Similarly, in
Watson v. Heckler, the court implicitly sanctioned the ALJ’s consideration of the of the claimant’s
“failure to seek treatment after June 1981 (until after the denial of benefits by the administrative
law judge).” 738 F.2d at 1173. The Watson court ultimately concluded that the claimant’s lack
of medical treatment along with other evidence properly supported the ALJ’s decision to discredit
the claimant’s pain testimony. Id. at 1173. Plaintiff offers no case law contradicting these
controlling precedents.
On the other hand, a claimant who cannot afford prescribed medical treatment and can find
no way to obtain it, may be excused from noncompliance. See Dawkins v. Bowen, 848 F.2d 1211,
1213 (11th Cir. 1988). When compliance with a prescribed source of treatment is at issue, the
ALJ has a duty to fully investigate possible reasons for the alleged noncompliance. See Lucas, 918
F.2d at 1574. In her briefs, Plaintiff cites a case from the Third Circuit which states:
The [ALJ] must not draw any inference about an individual’s symptoms and their
functional effects from a failure to seek or pursue regular medical treatment without
first considering any explanations that the individual may provide, or other
information in the case record, that may explain infrequent or irregular medical
visits or failure to seek medical treatment.
Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 547 (3d Cir. 2003) (citation omitted) (emphasis
added). 14 In this case, for the reasons outlined below, the court concludes that the ALJ’s

14

Even if the rule indicated by the Third Circuit would be a valid statement of law in the Eleventh Circuit,
that does not help Plaintiff here. As noted below, the ALJ did not act inconsistently with the Newell holding.

29

consideration of Plaintiff’s lack of medical treatment does not serve as a basis for remand.
Contrary to Plaintiff’s assertions, the ALJ did not rely on negative inferences from
Plaintiff’s lack of treatment without considering any explanation from Plaintiff. Cf. Newell, 347
F.3d at 547. Instead, the ALJ repeatedly asked Plaintiff to explain and justify her lack of medical
treatment. (See Tr. 80, 83). In her responses, Plaintiff blamed her lack of treatment on her
inability afford medication (Tr. 83), her lack of transportation (Tr. 80), and her fear of going
outside (Tr. 80). Taking into account her various excuses, the ALJ properly performed his duty to
weigh and resolve the conflicting evidence. The ALJ’s reasoned findings easily satisfy Plaintiff’s
argument that an ALJ must first consider a claimant’s proffered explanations before relying on
negative inferences based upon a lack of treatment.
Moreover, the ALJ only inferred from Plaintiff’s lack of medical treatment that Plaintiff’s
disability was “generally under control.” (Tr. 64). First, the court notes this is different than the
circumstance in which the Commissioner infers from a claimant’s noncompliance that, if claimant
were medicated, she would not to be disabled. Second, and more importantly, the ALJ observed
that Plaintiff had been off her regular medication since 2007. (See Tr. 82, 405-08). As of
Plaintiff’s March 2011 appointment at CCC, even though Plaintiff’s only treatment had been
infrequent clinical intakes, Dr. Jeter, her treating physician, found Plaintiff to be generally active
and cooperative. (Tr. 405-08). Dr. Jeter and Plaintiff’s therapist concluded that Plaintiff was not
in immediate need of medication management (Tr. 80-81), but only advised Plaintiff to continue
attending individual therapy. (Tr. 405-406). From this substantial evidence, the ALJ concluded
that this conservative treatment at clinical intakes “is not the type of treatment one would expect
from a totally disabled individual.” (Tr. 64). Consequently, the ALJ found that Plaintiff’s lack
of medical treatment and her history of noncompliance undermined her argument that she was

30

disabled. (Tr. 63-64).
Nor is this a case where poverty might excuse noncompliance. Plaintiff does not contend
that she had an inability to afford treatment during the relevant period. Instead, Plaintiff argues
only that prior to the relevant period in 2007, she was unable to afford medication because she was
then unemployed and homeless. (Tr. 83). But after Plaintiff eventually found work, she asserts
that her noncompliance during the relevant period was due to her lack of transportation and fear of
going outside. (Tr. 80).
Nevertheless, even without the evidence of Plaintiff’s lack of medical treatment, the ALJ’s
decision is supported by substantial evidence. The record simply does not reflect that the ALJ
based his decision entirely, or significantly, on Plaintiff’s noncompliance alone. (Tr. 64-65).
Thus, this case is unlike Lucas v. Sullivan, where the court remanded after the ALJ concluded that
the claimant’s intermittent noncompliance is “a primary cause of [her] seizures.” See 918 F.2d at
1572. As detailed above, the ALJ’s decision rested on a voluminous amount of evidence in the
record. Plaintiff’s noncompliance was merely one minor factor referenced in the ALJ’s decision.
The other relevant evidence, included but was not limited to, Plaintiff’s medical records (Tr.
265-344, 349-62, 377-409), medical expert mental evaluations (Tr. 345-48, 363, 376), evaluations
by Drs. Davis and Estock (Tr. 64-69), Plaintiff’s own testimony and reports (see Tr. 71-88, 92-94,
227-36), nonmedical third-party reports (Tr. 205-215), and testimony from vocational expert Dr.
Green (see 88-92). Taken together, these items alone provide substantial evidence supporting the
ALJ’s findings. Accordingly, to the extent the ALJ failed to consider Plaintiff’s ability to afford
medication, it is not a reversible error. See Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir.
2003) (concluding that when an ALJ does not significantly base his decision on a claimant’s
noncompliance, even the ALJ’s failure to consider the claimant’s ability to afford his seizure

31

medication is not a reversible error).
VI.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff is not disabled is

supported by substantial evidence and the proper legal standards were applied in reaching this
determination. The Commissioner’s final decision is therefore due to be affirmed.
order in accordance with this Memorandum of Decision will be entered.
DONE and ORDERED this February 9, 2015.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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A separate