Sims v. Social Security Administration, Commissioner

Filing 20

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 11/17/2015. (AVC)

FILED
2015 Nov-18 AM 08:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

BRANDON SIMS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

Defendant,

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Case No. 4:14-CV-1628-RDP

MEMORANDUM OF DECISION
Plaintiff Brandon Sims filed this action pursuant to Sections 205(g) and 1631(c)(3) of the
Social Security Act (the “Act”), seeking review of the decision by the Commissioner of Social
Security (“Commissioner”) denying his claims for a period of disability, disability insurance
benefits (“DIB”), and Supplemental Security Income (“SSI”). See 42 U.S.C. §§ 405(g) and
1383(c). Based on 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
Plaintiff filed his applications for disability, DIB, and SSI on July 10, 2011. (R. 149,

192). In both applications, Plaintiff alleged that his disability began on March 11, 2011. (Id.).
Plaintiff’s applications were initially denied by the Social Security Administration on October
26, 2011. (R. 67-68). Plaintiff then requested and received a hearing before Administrative Law
Judge Lisa M. Johnson (“ALJ”) on November 19, 2012. (R. 34-62). The ALJ’s decision, dated
January 25, 2013, found that Plaintiff had not been under a disability within the meaning of §§
216(i), 223(d), and 1614(a)(3)(A) of the Act. (R. 16). Following the decision of the ALJ,

Plaintiff requested review by the Appeals Council. (R. 13). Plaintiff’s request for review was
denied, thereby making it the final decision of the Commissioner a proper subject of this court’s
appellate review. See 42 U.S.C. §§ 405(g) and 1383(c).
II.

Facts
At the time of the ALJ’s decision, Plaintiff was 28 years old with a ninth grade education.

(R. 123, 151). Plaintiff’s work history consists of various roles of employment. (R. 138-39).
Plaintiff worked for Keystone Foods LLC, where he operated a packaging machine. (R. 47-48,
138). He was also employed as a construction laborer for Alabama Plastering Contractors,
where he would mix plastering mud and carry it to other employees. (R. 47, 57, 139). Plaintiff
also worked in a restaurant, which required him to wash dishes, complete prep work, and
occasionally cook. (R. 46). William F. Green, an impartial Vocational Expert, appeared at the
ALJ hearing and testified that Plaintiff’s work operating a packaging machine was considered
medium exertion, unskilled labor; his work as a construction laborer as very heavy exertion,
unskilled labor; and his work washing dishes and kitchen helper as medium exertion, unskilled
labor.
Plaintiff alleges that he has been disabled since March 11, 2011 because he mentally
cannot hold down a job. (R. 40). Plaintiff specifically cited bipolar disorder and schizophrenia
as conditions that limit his ability to work. (R. 152). Plaintiff stated during the ALJ hearing that
he was financially unable to see a psychiatrist about his bipolar disorder and was not taking any
medication for this disorder. (R. 40). He did state, however, that he was taking medication
(specifically, Klonopin) to treat his alleged schizophrenia. (Id.).
During questioning by the ALJ, Plaintiff testified that he had been diagnosed with
schizophrenia by three individuals: Dr. Judy Cook, Ms. Ashley at CED, and Dr. Sarah Rochester

2

at Crestwood. (R. 41). Plaintiff further testified that he had recently received medical treatment
from Dr. Hood, but that Dr. Hood was his medical doctor, not a psychiatrist. (R. 41, 433-38,
451-56). Plaintiff alleged that Dr. Hood had diagnosed him with an unidentified back issue but
was unable to more precisely identify the problem because his lack of insurance.1 (R. 42).
On October 3, 2011, Dr. Bentley, a psychologist, conducted a mental examination of
Plaintiff. (R. 411). Dr. Bentley noted that Plaintiff’s history of psychiatric problems began in
late childhood and that he was “severely depressed, [] anxious, and had poor self-esteem.” (Id.).
Dr. Bentley further noted that Plaintiff was initially treated by Dr. Cook, but after Dr. Cook
moved from the area, Plaintiff did not receive any further psychiatric treatment until 2008, when
he was admitted to Crestwood Hospital. (R. 41, 351-64, 411). Dr. Bentley diagnosed Plaintiff
with depression, polysubstance abuse, and history of attention deficit hyper-activity disorder
(“ADHD”). (R. 413). Additionally, Dr. Bentley noted that Plaintiff had “[p]robable borderline
intellectual functioning” and also suffered from Asthma and Hypertension. (Id.).
Dr. Robert Estock was consulted to provide a psychiatric review and mental residual
functional capacity (“RFC”) assessment of Plaintiff. (R. 415-28, 429-32). Dr. Estock found that
Plaintiff suffered from ADHD, major depressive disorder, and drug dependence. (R. 416, 418,
423). In Dr. Estock’s mental RFC assessment, he determined that Plaintiff had no significant
limitations in thirteen categories, while Plaintiff had moderate limitations in seven other
categories. (R. 429-30). Dr. Estock found that Plaintiff suffered only moderate limitations in
activities of daily living, maintenance of social functioning, and maintaining concentration,
persistence, or pace. (R. 425). Dr. Estock further noted that Plaintiff’s mental status was not
suggestive of a psychotic disorder. (R. 427).
1

Plaintiff’s back injury allegedly arose out of an incident that occurred while he was working for a tree
service; however, employment with the tree service is not mentioned in his job history. (R. 42).

3

During the hearing, the Vocational Expert was questioned by the ALJ and asked if an
individual of Plaintiff’s age, education, and work history, doing work at all exertional levels,
performing simple, routine, repetitive tasks, maintaining attention and concentration for two hour
periods at a time, would not require interacting with the general public but may have occasional
interaction with coworkers and supervisors, capable of adapting to routine and infrequent
workplace changes, and making simple work-related decisions, be capable of performing
Plaintiff’s past work. The Vocational Expert responded that the person could do the machine
packaging job and other jobs in the national economy that are at the medium and unskilled level,
such as hand packager, cleaning jobs, industrial cleaning jobs, vehicle cleaners (not cars), and
landscape labor jobs that are at the heavy and unskilled level. (R. 58). When asked to assume
that the individual could have no interaction with coworkers (but still with occasional interaction
with supervisors), and need two reminders per workday to stay on task, the Vocational Expert
replied that the individual would be unable to perform Plaintiff’s past work, nor any other jobs
available. (R. 59). When questioned by Plaintiff’s attorney as to what level of absenteeism is
generally tolerated, the Vocational Expert responded “one absence per month.” (Id.). When
asked if the hypothetical person had to lie down in excess of two hours per day, the Vocational
Expert responded that the same jobs would not be available. (R. 61).
III.

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

Disability is defined as the inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment or combination of impairments that can
be expected to result in death or that has lasted or can be expected to last for a continuous period

4

of not less than 12 months. In order to be disabled under the Act, a claimant must meet the
requirements of each step.
First, the ALJ must determine whether the claimant is engaging in “substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4)(i). Substantial gainful activity is defined as work activity
that is both substantial and gainful. “Substantial work activity” is work activity that involves
doing significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity”
is work that is done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the
claimant engages in substantial gainful activity, then the claimant is not disabled, and therefore
cannot claim disability. 20 C.F.R. 404.1520(b).
In the second step, 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. 20 C.F.R. 404.1520(a)(4)(ii). The key issue
at this step is whether the impairment or combination of impairments is “severe.” 20 C.F.R. §§
404.1520(c) and 416.920(c). An impairment or combination of impairments is “severe” within
the meaning of the regulations if it significantly limits an individual’s ability to perform basic
work activities. If no such impairment exists, then the claimant may not claim disability. Id.
In the third step, the ALJ must determine whether the claimant’s impairment meets or
medically equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1.
See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If the claimant meets these criteria, then
the claimant is to be declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
Should the claimant not fulfill the requirements necessary to be declared disabled under
the third step, then the ALJ may find disability under the next two steps of the analysis. The ALJ

5

must first determine the claimant’s residual functional capacity (“RFC”), which refers to the
claimant’s ability to work despite his impairments. 20 C.F.R. § 404.1520(e).
In the fourth step, the ALJ determines whether the claimant has the RFC to perform past
relevant work. 20 C.F.R. § 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. 20 C.F.R. § 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 his RFC, age, education, and work experience. 20
C.F.R. § 404.1520(g). At this step of the process, 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 his RFC, age, education, and work experience. 20 C.F.R. § 404.1520(g),
404.1560(c).
Here, the ALJ determined that Plaintiff had not engaged in substantial gainful activity
and had a combination of severe impairments. (R. 21). Specifically, the ALJ found that Plaintiff
suffers from major depressive disorder with anxiety, ADHD, and borderline intellectual
functioning. (R. 21). However, the ALJ determined that Plaintiff does not have an impairment
or combination of impairments that “meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. § 404, Subpart P, Appendix 1.” (R. 22). Furthermore, the ALJ
determined that Plaintiff’s mental impairments, considered singly and in combination, do not
meet or medically equal the criteria of Listings 12.04 and 12.05. (R. 23). The ALJ found that
Plaintiff has a detailed history of caring for himself successfully, he does not have a valid verbal
performance or full scale IQ of 59 or less, and he does not have a valid verbal performance or

6

full scale IQ of 60 through 70 and physical or other mental impairment imposing an additional
and significant work-related limitation of function.

Most importantly, the ALJ found the

evidence of record does not support a finding that Plaintiff has deficits in adaptive functioning
initially manifested during the development period, and that Plaintiff’s mental impairments do
not cause “at least two ‘marked’ limitations or one ‘marked’ limitation and ‘repeated’ episodes
of decompensation.” (Id.).
The ALJ determined that Plaintiff has the RFC to perform a full range of work at all
exertional levels, with some limitations which are non-exertional in nature. (R. 23). In reaching
this finding, the ALJ relied upon the reports of Dr. Bentley and Dr. Estock. (R. 25). Dr.
Estock’s report was particularly relevant to the findings of the ALJ because his report determined
that Plaintiff’s mental impairments caused, at worst, moderate limitations in seven areas and
found no significant limitations in thirteen areas. (R. 25, 429-30).
IV.

Plaintiff’s Argument for Reversal
Plaintiff argues the ALJ committed eight errors in making her determination. (Pl’s Mem

1). These purported errors include: (1) the ALJ gave insufficient weight to the opinion of Dr.
Hood; (2) the ALJ failed to consider all of Plaintiff’s severe impairments; (3) the ALJ failed to
consider Plaintiff’s combination of impairments; (4) the ALJ failed to state adequate reasons for
finding Plaintiff not credible; (5) the ALJ’s decision was not based on substantial evidence; (6)
the ALJ improperly drew adverse inferences from lack of medical treatment; (7) the ALJ erred in
placing improper weight in the testimony of Dr. Jack Bentley; and (8) Plaintiff meets the
requirements of Listings 12.03, 12.04, and 12.06.

7

V.

Standard of Review
In judicial reviews of disability claims under the Act, the court is limited to determining

whether the Commissioner’s decision is supported by substantial evidence or whether the correct
legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002).

The Eleventh Circuit has defined substantial evidence as “less than a

preponderance, but rather such evidence as a reasonable person would accept as adequate to
support a conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); see also
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)(quoting Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)). The Commissioner’s factual findings are conclusive when
supported by substantial evidence. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). If
supported by substantial evidence, the Commissioner’s factual findings must be affirmed, even if
the record preponderates against the Commissioner’s findings. Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1159 (11th Cir. 2004); see also Martin, 894 F.2d at 1529. Legal standards,
however, are reviewed de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
VI.

Discussion
In order to organize this discussion, the court has grouped Plaintiff’s arguments into

categories based upon the subject matter of each assertion and considered them collectively by
category. Accordingly, the court addresses Plaintiff’s arguments as follows: (1) whether his
disorders meet Listings 12.03, 12.04, and 12.06; (2) whether the ALJ gave improper weight to
testimony; (3) whether the ALJ properly considered his impairments; (4) whether the ALJ
improperly found Plaintiff not credible and improperly drew adverse inferences against him; and
(5) whether the ALJ’s decision was based upon substantial evidence.

8

A.

Whether Plaintiff Qualifies as Disabled under the Act is a Question Reserved
for the Commissioner

Plaintiff contends that the record evidence demonstrates that he meets Listings 12.03,
12.04, and 12.06. (Pl.’s Mem. 22-36). While the court may review legal standards de novo, the
same is not true of fact findings made by the ALJ.

The question of whether Plaintiff’s

impairments meet the listings is one reserved to the Commissioner. As the Eleventh Circuit has
noted, this court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment
for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Indeed,
this court’s review is limited to whether the ALJ applied the correct legal standards and whether
the ALJ’s decision was supported by substantial evidence. “The findings of the Commissioner
of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . .” 42
U.S.C. § 405(g). The court finds that the ALJ applied the proper legal standards and that the
ALJ’s decisions are supported by substantial evidence, for the reasons set forth below.
1.

The ALJ Gave the Proper Amount of Weight to the Testimony of Drs. Hood
and Bentley

After careful review, and for the reasons discussed below, the court concludes that the
ALJ gave proper weight to the testimony of Dr. Hood and Dr. Bentley.
a.

The ALJ Did Not Commit Error By Giving Less Weight to the
Opinion of Dr. Hood

Plaintiff argues that the ALJ gave less weight to the opinion of Dr. Hood. (Pl.’s Mem. 810). The process of how the Commissioner weighs medical opinions involves numerous factors,
such as the examining and treatment relationship, supportability, and consistency. See 20 C.F.R.
§ 404.1527(c). Dr. Hood’s opinion, as Plaintiff’s treating physician, is generally to be given
more weight. See 20 C.F.R. § 404.1527(c)(2). However, in order to be granted controlling
weight, the treating physician’s opinion must be “well-supported by medically acceptable
9

clinical and laboratory diagnostic techniques and . . . []consistent with the other substantial
evidence in [the] case record . . .” Id.
Plaintiff alleges that “Dr. [] Hood confirmed disability on January 27, 2012 due to low
back pain and depression.” (Pl.’s Mem. 8). However, there are certain issues which “are not
medical opinions . . . but are, instead, opinions on issues reserved to the Commissioner because
they are administrative findings that are dispositive of a case . . . .” See 20 C.F.R. § 404.1527(d).
As noted, “[a] statement by a medical source that [a claimant is] ‘disabled’ or ‘unable to work’”
does not necessarily mean that the Commissioner will find the claimant disabled. See 20 C.F.R.
§ 404.1527(d)(1).
The ALJ identified several reasons for giving the opinion of Dr. Hood less weight. First,
Dr. Hood is not a mental health professional. (R. 26). Additionally, while Dr. Hood had
identified depression as an impairment which would lead to disability, he did not refer Plaintiff
to a mental health professional. (R. 26, 437). The ALJ also noted that Dr. Hood’s opinions were
inconsistent with the great weight of the medical evidence and his opinion regarding Plaintiff’s
chronic lower back pain is unsupported by the record. (R. 26).
The Eleventh Circuit has identified situations where an ALJ has “good cause” to give less
weight to the opinion of a treating physician in Phillips v. Barnhart, 357 F.3d 1232 (11th Cir.
2003). These situations include the following: (1) the opinion is not bolstered by the evidence;
(2) the evidence supported a contrary finding; or (3) the opinion was conclusory or inconsistent
with the doctors own medical records. Id. at 1240. While the treating physician’s opinion is
generally due to be given great weight, such an opinion is not unassailable.
In this case, the court finds that the ALJ had good cause to grant less weight to Dr.
Hood’s opinion. First, the opinion is not bolstered by the evidence. See Phillips, 357 F.3d at

10

1240. In the Mental Health Source Statement provided by Dr. Hood, dated January 12, 2012, he
identified twelve areas in which Plaintiff had “marked limitations.” (R. 433-34). However, he
provided no evidence to support this diagnosis. A referral to a mental health specialist could
have bolstered this diagnosis. Without further supporting evidence, this diagnosis falls into
another category of causes to grant a treating physician’s opinions less weight. Phillips, 357
F.3d at 1240. A diagnosis which provides no supporting evidence is merely a conclusory
opinion.
Second, a mental health examination conducted by Dr. Estock contradicts Dr. Hood’s
findings. (R. 429-30). Dr. Estock’s assessment found no marked limitations as to Plaintiff’s
RFC. (Id.). Dr. Estock noted that Plaintiff had seven moderate limitations, and believed that
Plaintiff would be able to continue work, while taking into account several non-exertional
limitations. (Id.). This assessment by a mental health specialist found none of the marked
limitations identified by Dr. Hood. Therefore, the record evidence supports a contrary finding,
and the court finds no error in the findings of the ALJ on this issue. 2
b.

The ALJ Did Not Commit Error by Giving More Weight to the
Opinion of Dr. Bentley

Plaintiff further asserts that the ALJ gave improper weight to the opinion of Dr. Bentley.
(Pl.’s Mem. 20-22). Plaintiff points to SSR § 404.1513, which lists acceptable sources of
evidence to establish an impairment. (Pl.’s Mem. 20). The relevant sources listed include (1)
Licensed physicians and (2) Licensed or Certified psychologists. (Id.). However, the ALJ
specifically confronted this argument during the hearing. (R. 27). As noted by the ALJ, Dr.
2

The court notes that Plaintiff later disavows this argument in his reply. (Pl.’s Rep. 6). Plaintiff provides
various explanations for granting Dr. Hood’s opinion less weight, noting that Dr. Hood “did not have a specialty in
psychological or psychiatry; his opinions were inconsistent with his own treatment notes; Dr. Hood did not refer
Plaintiff for mental health care; and the issue of disability is reserved to the Commissioner.” (Id.). Plaintiff
concludes by stating “[c]ontrary to Plaintiff’s assertion, these reasons are sufficient under the regulations, and they
are supported by substantial evidence.” (Id.).

11

Bentley was consulted to “assess the severity of [Plaintiff’s] severe mental impairments and to
offer an opinion regarding the effects of said impairments on [Plaintiff’s] ability to function.”
(Id.).
While Plaintiff provides a list of acceptable medical sources (even including podiatrists),
the brief inexplicably stops short of that portion of the regulation which provides that “Other
Sources” may be consulted to “show the severity of your impairment(s) and how it affects your
ability to work.” See 20 C.F.R. 404.1513(d). While Dr. Bentley’s testimony was prohibited
from being used to establish the existence of an impairment, Dr. Bentley could offer testimony to
assist the ALJ in assessing the severity of Plaintiff’s impairments. As the evidence from Dr.
Bentley falls within the “Other Sources” category, the court finds no error in giving more weight
to Dr. Bentley’s opinions.3
2.

The ALJ Did Not Fail to Consider Either All of Plaintiff’s Severe
Impairments or the Combination of Impairments in Determining Disability

After careful review, the court concludes that the ALJ did not commit error in assessing
Plaintiff’s impairments, separately and/or in combination.

The court addresses Plaintiff’s

arguments to the contrary below.
a.

The ALJ Did Not Commit Error by Failing to Consider All of
Plaintiff’s Severe Impairments

Plaintiff contends that the ALJ also committed error when she (1) failed to consider
Plaintiff’s bipolar disorder; (2) failed to follow the slight abnormality standard in finding that
Plaintiff’s bipolar disorder was non-severe; and (3) violated the mandate of SSR 96-3p by not
taking into account the effect of his bipolar disorder. (Pl.’s Mem. 10-11).
3

Again, Plaintiff appears to later disavow his argument that the ALJ gave improper weight to Dr. Bentley
in his reply. (Pl.’s Rep. 7). Here, Plaintiff writes “[t]he ALJ also properly considered evidence from Dr. Jack
Bentley,” and notes that Dr. Bentley “would still qualify as an ‘other source.’” (Id.). Thus, it would appear there is
no dispute over the issue of whether the ALJ gave improper weight to Dr. Bentley’s opinion. See Def.’s Mem. at
14.

12

The record reveals that Plaintiff was hospitalized on July 30, 2008, after a reported
suicide attempt, and was discharged from the hospital on August 4, 2008. (R. 25, 355). The
discharge diagnoses included polysubstance abuse and depressive disorder. (R. 355). Plaintiff
was then evaluated by Dr. Bentley on October 3, 2011, who diagnosed Plaintiff with major
depression, polysubstance abuse in remission, and probable borderline intellectual functioning.
(R. 25, 411-14). In the hearing before the ALJ, Plaintiff alleged he suffered from both bipolar
disorder and schizophrenia, but stated that he was not currently taking medication for his bipolar
disorder. (R. 40).
It is important to keep in mind that in the process of applying for Social Security, the
claimant bears the burden of establishing the existence of a disability.

See 20 C.F.R. §

416.912(a). Here, the ALJ found that severe impairments existed, which included: (1) major
depressive disorder with anxiety; (2) attention deficit hyperactivity disorder; and (3) borderline
intellectual functioning. (R. 21-22). The ALJ also found that these impairments had been
determined by medically acceptable evidence. (Id.). What is noticeably absent (and this is the
basis for Plaintiff’s present argument) is the lack of any mention of a diagnosis of bipolar
disorder.
Bearing in mind the limited nature of this court’s review, the question is whether there is
substantial evidence to support the ALJ’s finding regarding the existence of Plaintiff’s bipolar
disorder. It is Plaintiff’s burden to prove the existence of such a disability. 20 C.F.R. §
416.912(a). Plaintiff could have attempted to establish the existence of bipolar disorder by
consulting with a licensed psychologist. See 20 C.F.R. § 404.513(a). Here is the problem:
Absent any attempt to provide such evidence, the ALJ was working with only conclusory

13

allegations of bipolar disorder. (R. 40-41). The court finds that the ALJ did not err by failing to
take into account Plaintiff’s alleged bipolar disorder.
b.

The ALJ Did Not Err by Failing to Consider Claimant’s Combination
of Impairments in Determining Disability

Plaintiff alleges that the ALJ failed to consider his combination of impairments. (Pl.’s
Mem. 11-13). The ALJ found that Plaintiff had the following impairments: (1) major depressive
disorder with anxiety; (2) ADHD; and (3) borderline intellectual functioning, and that these
impairments, singly or in combination, did not meet or medically equal the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 21-23). The burden still
rests upon Plaintiff at this point to prove his disability. See 20 C.F.R. 416.912(a).
In considering whether Plaintiff’s mental impairments meet Listings 12.04 and 12.05, the
ALJ took into account whether the combined effect of his impairments would satisfy the
requirements of those listings. (R. 22). The ALJ identified the requirements to meet those
listings, and concluded that Plaintiff had failed to prove that his impairments satisfied those
requirements. (Id.). Plaintiff was required to prove that his impairments resulted in: (1) marked
restriction of activities of daily living; (2) marked difficulties in maintaining social functioning;
(3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated
episodes of decompensations, each of extended duration.
The ALJ concluded that Plaintiff had moderate restrictions in activities of daily living,
maintaining social functioning, and maintaining concentration, persistence, and pace, and did not
have repeated episodes of extended decompensation.

(R. 22).

The court finds the ALJ

thoroughly considered the evidence in determining whether Plaintiff’s combination of
impairments met a listing. The ALJ considered both Plaintiff’s testimony at the hearing and his
prior responses provided as part of a Function Report. (R. 22, 169-76). As the function report
14

indicates, Plaintiff reported being able to prepare food, assist in household chores, and shop for
groceries. (R. 169-72).
The key issue is whether substantial evidence supports the ALJ’s conclusions. The
record reflects that the ALJ took into account all of Plaintiff’s impairments, both singly and in
combination, in determining that his impairments did not meet a listing. The ALJ fleshed out the
requirements of the various listings in determining whether Plaintiff satisfied their requirements.
The court finds that substantial evidence supports the ALJ’s ruling. Therefore, the court finds no
reversible error.
3.

The ALJ Did Not Commit Reversible Error by Finding Plaintiff Not
Credible, Nor by Drawing Adverse Inferences

After careful review, the court concludes that the ALJ did not commit error when she
discredited portions of Plaintiff’s testimony and drew adverse inferences against him.
a.

The ALJ Had Adequate Reasons to Conclude that Plaintiff Was Not
Credible

Plaintiff next asks this court to conclude that the ALJ had inadequate reasons to find
Plaintiff was not credible. He contends that the ALJ failed to explicitly articulate the reasons for
discrediting his pain testimony. (Pl.’s Mem. 13-17). Plaintiff also argues that the fact that he
was able to engage in the activities of daily living does not necessarily prove that he would be
able to become seek gainful employment, and that the medical evidence, in addition to his
testimony, establishes his disability. (R. 14, 17).
The first issue is whether the ALJ explicitly articulated the reasons for discrediting
Plaintiff’s pain testimony. The ALJ identified the process she followed in evaluating Plaintiff’s
alleged pain symptoms as involving two steps as follows:
In considering the claimant’s symptoms, the undersigned must
follow a two-step process in which it must first be determined
15

whether there is an underlying medically determinable physical or
mental impairment(s)--i.e., an impairment(s) that can be shown
by medically acceptable clinical and laboratory diagnostic
techniques--that could reasonably be expected to produce the
claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that
could reasonably be expected to produce the claimant’s pain or
other symptoms has been shown, the undersigned must evaluate
the intensity, persistence, and limiting effects of the claimant’s
symptoms to determine the extent to which they limit the
claimant’s functioning. For this purpose, whenever statements
about the intensity, persistence, or functionally limiting effects
of pain or other symptoms are not substantiated by objective
medical evidence, the undersigned must make a finding on the
credibility of the statements based on a consideration of the entire
case record.
(R. 24).
The ALJ determined that the first step of the process was met. (R. 26). However, the
ALJ found that Plaintiff’s statements regarding the intensity, persistence, and limiting effects of
the symptoms were not “entirely credible.” (Id.). The ALJ went on to provide adequate reasons
for discrediting this testimony, such as the fact that neither the alleged diagnosis of schizophrenia
was consistently reflected throughout the medical record nor had Plaintiff ever received a
diagnosis for his alleged back impairment. (Id.). Plaintiff also had inconsistencies between his
testimony at the hearing and his statements prior to the hearing, such as whether he experienced
difficulty sleeping. (Id.).
Given the lack of objective medical evidence for his alleged back impairment and
schizophrenia, along with other inconsistencies noted by the ALJ, the court finds that the ALJ
had adequate reasons for finding Plaintiff’s testimony not entirely credible.

16

b.

The ALJ Did Not Commit Error by Drawing Adverse Inferences

Plaintiff’s next argument is that the ALJ improperly drew adverse inferences from his
failure to seek medical treatment, which he claims was a result of his lack of insurance. (R. 1820). Plaintiff stated in the hearing that he had not sought treatment for his bipolar disorder
because he could not afford a psychiatrist. (R. 40). He also alleged that he had yet to receive a
medical diagnosis for his back condition because Dr. Hood was waiting to perform the tests until
Plaintiff received a determination of disability. (R. 42).
Plaintiff cites Social Security Ruling 96-7p as one of his arguments for reversing the
ALJ’s decision. This Ruling states:
[T]he adjudicator must not draw any inferences 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.
(Pl.’s Mem. 19). This Ruling requires that the ALJ take into account Plaintiff’s explanations for
his failure to seek out medical treatment. Plaintiff explained that his failure to seek out medical
care was a result of his lack of medical insurance. (R. 40). He also asserted that he is only able
to see Dr. Hood, his treating physician, because of help from his mother. (R. 42).
The ALJ took this explanation into account in the opinion. (R. 27). As the ALJ notes,
Plaintiff is able to afford to smoke a pack of cigarettes every day, and has seen Dr. Hood several
times, but has yet to receive a diagnosis for his back impairment. (Id.). The ALJ noted that
Plaintiff could have sought mental health treatment, but chose to see Dr. Hood instead. (R. 27).
Plaintiff bases his claim of disability on mental health issues, but does not appear to have
attempted to schedule appointments with mental health specialists.

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The court concludes that the ALJ did not commit error by drawing adverse inferences
from Plaintiff’s lack of medical treatment for his mental health impairments. Plaintiff’s lack of
credibility, combined with his failure to seek regular mental health treatment, provided a basis
for the ALJ’s ruling which is based on substantial evidence.
4.

The ALJ’s opinion was based on substantial evidence.

Plaintiff next argues that the ALJ’s ruling was not based on substantial evidence. He
asserts that the Vocational Expert’s testimony was not based on a correct or full statement of his
limitations and impairments. (Pl.’s Mem. 17-18). In particular, Plaintiff contends that the
Vocational Expert’s testimony could not constitute substantial evidence because “the
hypothetical question relied upon did not accurately state [his] pain level or his residual
functional capacity.” (Pl.’s Mem. 17).
In reviewing appeals from the Social Security Administration’s rulings, this court must
determine whether there is substantial evidence for the ALJ’s ruling. If there is, then this court
must affirm.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (noting that the

Commissioner’s factual findings are conclusive when supported by substantial evidence). The
burden rests upon Plaintiff to prove that he is disabled. See Lucas v. Sullivan, 918 F.2d 1657,
1571 (11th Cir. 1990); 20 C.F.R. § 416.912(a).
Prior to the onset of Plaintiff’s alleged disability, he had worked as a packaging machine
operator. (R. 47-48). The Vocational Expert testified that a person limited in the same manner
as Plaintiff would be able to return to work as a packaging machine operator. Based on this
testimony, the ALJ found that Plaintiff would be capable of performing past relevant work as a
packaging machine operator. (R. at 27). The Vocational Expert testified that someone limited in
the same manner as Plaintiff would also be able to find other areas of employment. (Id.). In this

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case, the testimony of a vocation expert was not critical to the ALJ’s findings because substantial
evidence supported those findings even in the absence of such testimony. However, in any
event, the ALJ’s treatment of the vocational expert’s testimony was not error.
VII.

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

supported by substantial evidence and proper legal standards were applied in reaching this
determination. The Commissioner’s final decision is therefore due to be affirmed, and a separate
order in accordance with this memorandum of decision will be entered.
DONE and ORDERED this November 17, 2015.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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