Tinnon v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 10/24/2016. (KEK)

FILED
2016 Oct-24 AM 09:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

TRISTAN J. TINNON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of the
Social Security Administration,
Defendant.

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Case No.: 4:15-CV-555-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Tristan Jacob Tinnon
seeks judicial review of a final adverse decision of the Commissioner of Social
Security. The Commissioner denied Mr. Tinnon’s claims for a period of disability,
disability insurance benefits, and supplemental security income. After careful
review, the Court affirms the Commissioner’s decision.
I.

PROCEDURAL HISTORY
Mr. Tinnon applied for a period of disability, disability insurance benefits,

and supplemental security income on January 8, 2014. (Doc. 7-6, pp. 2-14). Mr.
Tinnon alleges that his disability began on August 27, 2013 due to bipolar disorder,
manic depression, suicidal thoughts, and dyscalculia. (Doc. 7-6, p. 2, 8; Doc. 7-7,

p. 3). The Commissioner initially denied Mr. Tinnon’s claims on March 20, 2014.
(Doc. 7-5, pp. 3-6). Mr. Tinnon then requested a hearing before an Administrative
Law Judge (ALJ). (Doc. 7-5, pp. 9-11). The ALJ held a hearing on July 31, 2014.
(Doc. 7-3, pp. 45-87). The ALJ issued an unfavorable decision on October 3,
2014. (Doc. 7-3, pp. 11-30). On January 26, 2015, the Appeals Council declined
Mr. Tinnon’s request for review (Doc. 7-3, pp. 2-7), making the Commissioner’s
decision final and a proper candidate for this Court’s judicial review. See 42
U.S.C. § 405(g), § 1383(c).
II.

STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the

ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s factual findings.

“Substantial evidence is more than a

scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004). In evaluating the administrative record, the Court
may not “decide the facts anew, reweigh the evidence,” or substitute its judgment
2

for that of the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citation omitted). If substantial evidence
supports the ALJ’s factual findings, then the Court “must affirm even if the
evidence preponderates against the Commissioner’s findings.”

Costigan v.

Comm’r of Soc. Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing
Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
III.

SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that he is disabled, an ALJ

follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
3

Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Mr. Tinnon has not engaged in substantial
gainful activity since August 27, 2013, the alleged onset date. (Doc. 7-3, p. 16).
The ALJ determined that Mr. Tinnon suffers from the following severe
impairments: bipolar disorder, mixed type; attention deficit hyperactivity disorder
(ADHD); alcohol dependence in remission; and Ehlers Danlos syndrome, by
history. (Doc. 7-3, p. 16). Based on a review of the medical evidence, the ALJ
concluded that Mr. Tinnon does not have an impairment or a combination of
impairments that meets or medically equals the severity of any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 7-3, p. 17).
In light of Mr. Tinnon’s impairments, the ALJ evaluated Mr. Tinnon’s
residual functional capacity. The ALJ determined that Mr. Tinnon has the RFC to
perform:
light work, as defined as 20 C.F.R. 404.1567(b), 416.967(b) except
the claimant could never climb ladders or scaffolds; the claimant
could never be exposed to unprotected heights, dangerous tools,
dangerous machinery, or hazardous processes; the claimant should
never operate commercial motor vehicles; the claimant could tolerate
moderate noise levels in the workplace; the claimant would be limited
to simple tasks and simple work-related decisions; the claimant could
maintain frequent interaction with supervisors and coworkers but only
occasional interaction with the general public; the claimant could
remember short, simple instructions but would be unable to deal with
detailed or complex instructions; the claimant could do simple, routine
tasks but would be unable to do detailed or complex tasks; the
claimant would not be able to perform assembly line work with a
production rate pace but could perform other goal oriented work; in
4

addition to normal breaks, the claimant would be expected to be off
task approximately 5% of an 8-hour workday (non-consecutive
minutes); the claimant would need an at will sit/stand option with the
retained ability to stay at or on a workstation in no less than 30 minute
increments each without significant reduction in remaining on task;
the claimant could also ambulate short distances of up to 100 yards
per instance on flat, hard surfaces.
(Doc. 7-3, p. 20).
Based on this RFC, the ALJ concluded that Mr. Tinnon is not able to
perform his past relevant work as a telephone order clerk, raft river/tour guide,
adult education instructor, sales clerk, short order cook, or conveyor feeder. (Doc.
7-3, p. 23). Relying on testimony from a vocational expert, the ALJ found that
jobs exist in the national economy that Mr. Tinnon could perform, including
parking lot cashier, storage facility rental clerk, and cafeteria checker. (Doc. 7-3,
p. 24). Accordingly, the ALJ determined that Mr. Tinnon has not been under a
disability within the meaning of the Social Security Act. (Doc. 7-3, p. 25).
IV.

ANALYSIS
Mr. Tinnon argues that he is entitled to relief from the ALJ’s decision

because the ALJ failed to accord proper weight to the opinion of Dr. Elizabeth
Lachman, Mr. Tinnon’s treating psychiatrist. Mr. Tinnon also argues that the ALJ
erroneously concluded that he (Mr. Tinnon) does not meet Listing 12.04. The
Court examines each issue in turn.
A.

The ALJ Gave Proper Weight to the Opinion of Mr. Tinnon’s
Treating Psychiatrist.
5

An ALJ must give considerable weight to the opinion of a treating
psychiatrist like Dr. Lachman if the evidence in the administrative record supports
the opinion, and the opinion is consistent with the doctor’s own records. See
Winschel, 631 F.3d at 1179. An ALJ may refuse to give the opinion of a treating
psychiatrist “substantial or considerable weight . . . [if] ‘good cause’ is shown to
the contrary.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
Good cause exists when “(1) [the] treating physician’s opinion was not bolstered
by the evidence; (2) [the] evidence supported a contrary finding; or (3) [the]
treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Id. at 1240-41; see also Crawford, 363 F.3d at 1159. The ALJ
“must state with particularity the weight given to different medical opinions and
the reasons therefor.” Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 931
(11th Cir. 2013) (internal quotation and citation omitted).
In support of his claim for disability benefits, Mr. Tinnon relies on a mental
health source statement that Dr. Lachman completed in June 2014. (Doc. 7-13, p.
28). Dr. Lachman circled “Yes” or “No” to the questions on the form. The mental
health statement is a pre-printed form. Through her responses on the form, Dr.
Lachman indicated that Mr. Tinnon can understand, remember, or carry out very
short and simple instructions and maintain attention, concentration, and/or pace for
periods of at least two hours. (Doc. 7-13, p. 28). Dr. Lachman also reported that
6

Mr. Tinnon cannot perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; sustain an ordinary
routine without special supervision; accept instructions and respond appropriately
to criticism from supervisors; or maintain socially appropriate behavior and adhere
to basic standards of neatness and cleanliness. (Doc. 7-13, p. 28).
The ALJ gave Dr. Lachman’s opinion little weight because “[t]he extreme
limitations noted by Dr. Lachman are not supported by her treatment notes, the
consultative evaluations, and the evidence showing the effectiveness of [Mr.
Tinnon’s] medications.” (Doc. 7-3, p. 23).
Dr. Lachman’s treatment notes and notes written by others who worked with
Dr. Lachman at Quality of Life Health Services are consistent with the health
source statement opinion that Dr. Lachman completed, but those records indicate
that Mr. Tinnon is able to function adequately when he takes his prescription
medication properly.
The relevant records date from March 2012. When Mr. Tinnon first visited
Quality of Life Health Services on March 26, 2012, he met with Dr. Muhammad
Tariq. (Doc. 7-10, pp. 48-50). Mr. Tinnon reported that he was taking Vyvanse
and Depakote for bipolar disorder and ADD. (Doc. 7-10, p. 48). Dr. Tariq
indicated that Mr. Tinnon did not suffer from anxiety and depression, and Mr.
Tinnon demonstrated the “appropriate mood and affect.” (Doc. 7-10, pp. 49-50).
7

Dr. Tariq diagnosed bipolar disorder. He gave Mr. Tinnon a refill prescription for
60mg Vyvanse capsule and Divalproex ER 250mg. (Doc. 7-10, p. 50).
Mr. Tinnon next met with Dr. Tariq on May 4, 2012. (Doc. 7-10, p. 45).
Mr. Tinnon presented with bipolar disorder and ADD. (Doc. 7-10, p. 45). Dr.
Tariq once again rated Mr. Tinnon as “[n]egative for anxiety and depression.”
(Doc. 7-10, p. 46). Dr. Tariq renewed Mr. Tinnon’s prescription for Divalproex
ER 250mg and Vyvanse 60mg capsule. (Doc. 7-10, p. 47).
Mr. Tinnon met with Dr. Tariq again on December 10, 2012. (Doc. 7-10, p.
41). Again, Dr. Tariq indicated that Mr. Tinnon was “[n]egative for anxiety,
compulsive thoughts or behaviors, decreased sleep, depressed mood, depression,
and suicidal ideation[.]” (Doc. 7-10, p. 42). However, Dr. Tariq found that Mr.
Tinnon had “difficulty concentrating,” he was “easily startled,” and he suffered
from “hopelessness.” (Doc. 7-10, p. 42).
When Mr. Tinnon visited Quality of Life Health Services again on January
23, 2013, counselor and social worker Dave Harvey performed a psychiatric
evaluation. (Doc. 7-10, p. 38). Mr. Harvey noted that Mr. Tinnon “need[ed] close
monitoring or medications via Dr. Lachman” and “[Mr. Tinnon] is in need of
Vyvan[s]e because he is bona fide ADHD.” (Doc. 7-10, p. 38). Mr. Harvey also
remarked that Mr. Tinnon “does not express suicidal ideation” or “homicidal

8

ideation,” but his “self-perception is abasing.” (Doc. 7-10, p. 39). Mr. Tinnon had
a GAF of 50. (Doc. 7-10, p. 39).
Five days later, on January 28, 2013, Mr. Tinnon met with Dr. Tariq. Mr.
Tinnon requested medication refills. (Doc. 7-10, p. 35). This time, Dr. Tariq
found Mr. Tinnon positive for anxiety and negative for depression. (Doc. 7-10, p.
36). During the January 28, 2013 visit with Dr. Tariq, Dr. Tariq stated that he
would like Dr. Lachman to see Mr. Tinnon. (Doc. 7-10, p. 37).
On February 20, 2013, Mr. Tinnon saw Mr. Harvey again. (Doc. 7-10, p.
33).

Mr. Harvey noted that Mr. Tinnon “was much different . . . focused,

organized, and much more relaxed.

He reported people at work noticed the

change. He completed his work assignments, was courteous to his customers and
patient. His supervisor called him in and complimented him on his work. Very
good progress.” (Doc. 7-10, p. 34).
On March 11, 2013, Mr. Tinnon saw Dr. Tariq. Mr. Tinnon complained of
ankle pain and requested medication refills. (Doc. 7-10, p. 29). Mr. Tinnon said
he fell down as he tried to get out of his bed, “sprained his ankle, busted his lips,
and injured [the right] side of face.” (Doc. 7-10, p. 29). Dr. Tariq reported that
Mr. Tinnon was not suffering from anxiety or depression. (Doc. 7-10, p. 30). Dr.
Tariq referred Mr. Tinnon for an X-ray. (Doc. 7-10, p. 32).

9

On March 27, 2013, Mr. Tinnon met with Mr. Harvey again. (Doc. 7-10, p.
27). Mr. Harvey noted that “[Mr. Tinnon] is looking for a job. Has an interview at
Sears today. Doing much better focusing. Feels Dr. T[ariq] is uncomfortable
prescribing these medications. Dr. Lachman will take his case over . . . He is
writing his novel. Very intelligent, good sense of humor but very much a nerd.
Good rapport.” (Doc. 7-10, p. 28). Mr. Harvey reported that Mr. Tinnon was
distractible and unable to “follow complex directions” and had “memory deficits.”
(Doc. 7-10, p. 28). Mr. Harvey set a goal for Mr. Tinnon to “compensate” for
these “cognitive limitations” by July 2013. (Doc. 7-10, p. 28).
On April 17, 2013, Mr. Tinnon met with Dr. Tariq. Mr. Tinnon reported a
“decreased need for sleep, difficulty concentrating . . . and racing thoughts but
denied anxious/fearful thoughts, compulsive thoughts or thoughts of death or
suicide.” (Doc. 7-10, pp. 23-25). Mr. Tinnon’s memory was intact, and he was
oriented to time, place, person, and situation. (Doc. 7-10, p. 25). Dr. Tariq stated
that Mr. Tinnon was not experiencing anxiety, compulsive thoughts or behaviors,
depression, or suicidal ideation. (Doc. 7-10, p. 25).
On May 7, 2013, Mr. Tinnon met with Mr. Harvey. (Doc. 7-10, p. 21).
During that meeting, Mr. Harvey reported that Mr. Tinnon had not stopped taking
any of his medicines and “doesn’t want to.” (Doc. 7-10, p. 22). Mr. Tinnon told
Mr. Harvey that he may have found a job, and Mr. Tinnon wanted “to make sure
10

his condition is not worsening.” (Doc. 7-10, p. 22). Mr. Tinnon reported he was
sleeping much better, and “his focus and concentration are very much improved on
the Vyvan[s]e.” (Doc. 7-10, p. 22).
Mr. Tinnon next saw Mr. Harvey on July 1, 2013. (Doc. 7-10, p. 17). Mr.
Harvey noted that Mr. Tinnon had been hospitalized about two weeks prior to the
visit. (Doc. 7-10, p. 18; see Doc. 7-9, pp. 58-65). Before the hospitalization, Mr.
Tinnon had not been taking his medication for about a month because he “did not
like how [they] made him feel,” and he did not believe the prescription
medications were helping him. (Doc. 7-9, p. 58). Mr. Harvey reported that Mr.
Tinnon had had severe panic attacks for three days, “became dehydrated, felt like
there was sand in his mouth, and had severe sodium depletion.” (Doc. 7-10, p. 18).
Mr. Harvey noted that Mr. Tinnon reported “he is doing better but feels a bit
‘dopey’ but ‘centered.’” (Doc. 7-10, p. 18). Mr. Tinnon stated that he felt like his
Neurontin was working well. (Doc. 7-10, p. 18).
Mr. Tinnon saw Dr. Lachman for the first time on August 12, 2013, per Mr.
Harvey’s referral. (Doc. 7-10, p. 13). Under the “History of Present Illness”
section of the medical record, Dr. Lachman wrote:
This is a fairly interesting interview and evaluation because the patient
[] is expansive, his speech is rapid, not pressured. Labile. For
example, he explains to me what syclothymia is, but he is no where
[sic] near accurate in his description.

11

The patient makes a point that he [ha]s a pharmacological
background. Was a licensed pharmaceutical rep for a while, but he
did not work in the field, because he did “not look good in [a] skirt
and heels. He really only did a course on line. Guys that walk [on]
stilts and looked like they came from a [V]iagra ad. Look at me.
Short with crazy hair.” The patient worked at Office Max. Their top
sales consultant for district 22. Constantly got compliments. Now
works “at a chicken plant with two Masters’ degrees. Works with a
bunch of moon[ers], stoners, and meth heads . . . I hate it.” The
patient has been at the chicken plant x 3 weeks. He has already been
in trouble. Several times. He was on the Adderall XR x years.
Finally had Vyvanse. But off Vyvanse x 2 months until he could get
to me. But he has already been written up 6 times in 3 weeks at work.
Lots of occupational impairment because of it.
On Adderall, he went from a mediocre student to a President’s Cum
Laude student. The patient recently discovered that his sleep patterns
are all screwed up when he is off Ambien. The Ambien does help.
He does not have any weird side effects, he seems to get refreshing
sleep.
(Doc. 7-10, p. 13). Dr. Lachman stated that Mr. Tinnon initially received treatment
for mental issues in second grade. He was on Ritalin but not for long. Ritalin “had
an adverse effect as an adult,” but “Adderall helped.” (Doc. 7-10, p. 13). Dr.
Lachman noted that Mr. Tinnon has never attempted suicide. Mr. Tinnon engaged
in “irrational, expansive [] ramblings.” (Doc. 7-10, p. 14).
Under the “Biopyschosocial Summary” portion of her report, Dr. Lachman
stated that Mr. Tinnon was “[w]ritten up at work for not paying attention. Not
knowing that he missed 30 chickens, playing with something else.

Severe

inattentiveness. Easy distractibility. Disorganization. Needs to be back on his
Vyvanse. . . . Does not appear to be med seeking.” (Doc. 7-10, p. 15).
12

Dr. Lachman diagnosed mixed, chronic bi-polar disorder and ADHD. (Doc.
7-10, p. 15). In addition to Vyvanse, Dr. Lachman prescribed Tegretol, Neurontin,
Carbamazepine, and Ambien. (Doc. 7-10, pp. 15-16).
On August 13, 2013, one day after his visit with Dr. Lachman, Mr. Tinnon
met with Mr. Harvey. (Doc. 7-10, p. 11). Mr. Harvey explained that Mr. Tinnon
was:

better today, more focused with a good sense of humor. Taking his
Vy[v]an[s]e again which helps. Saw Dr. L[achman] recently.
Rambled on today about his experience in working with the chicken
plant. Has had some problems out there. Trying to get disability but
has been denied twice. . . . Talkative, a comedian today.
(Doc. 7-10, p. 12).

Mr. Harvey explained that Mr. Tinnon’s treatment would

focus on “medication management because counseling will have little or no impact
on” his problems. (Doc. 7-10, p. 12).
On September 17, 2013, Mr. Tinnon saw Mr. Harvey again. (Doc. 7-10, p.
9). Mr. Tinnon was no longer working at the chicken plant because he “[h]ad
physical pain in his hands from handling the chickens.” (Doc. 7-10, p. 10). Mr.
Tinnon reported that “[i]nteracting with people on their level [was] a real
problem.” (Doc. 7-10, p. 10). Mr. Harvey noted that Mr. Tinnon “cannot keep a
job. Very intellectual and nerdish. Inappropriate at times and has poor perception.
. . [Mr. Tinnon] has a very high IQ but is also very immature and doesn’t fit in
almost any setting.” (Doc. 7-10, p. 10). Mr. Harvey also explained that “[Mr.
13

Tinnon] is doing better as he is much more pleasant and has a good sense of
humor.” (Doc. 7-10, p. 10). Mr. Harvey stated that Mr. Tinnon was talkative and
relaxed during their session. (Doc. 7-10, p. 10). Mr. Harvey set as a new goal for
Mr. Tinnon compensation for his cognitive limitations by December 2013. (Doc.
7-10, p. 10).
On October 22, 2013, when Mr. Tinnon met with Mr. Harvey, Mr. Harvey
noted that he saw no change in Mr. Tinnon’s mental state. (Doc. 7-10, p. 7). Mr.
Tinnon reported that one of his medications was helping him, and he had not had
“major problems.” (Doc. 7-10, p. 8). Mr. Tinnon reported that he was working as
a sitter for his grandmother. (Doc. 7-10, p. 8).
On December 2, 2013, Mr. Tinnon met with Dr. Lachman for a second time.
(Doc. 7-10, pp. 5-6). During that visit, Dr. Lachman noted that Mr. Tinnon was
experiencing anxiety, that he was “not able to pay attention too long,” that he was
disheveled, and that he was “sleeping more than he should.” (Doc. 7-10, pp. 5-6).
Mr. Tinnon reported that he was “taking a down turn.” (Doc. 7-10, p. 6). Dr.
Lachman’s clinical assessment was: “Bipolar, Mixed, Chronic [and] ADHD NOS.”
(Doc. 7-10, p. 6). Dr. Lachman also noted that Mr. Tinnon was experiencing
problems related to accessing health care, finances, occupation, and “primary
support group.”

(Doc. 7-10, p. 6).

Mr. Tinnon was still working for his

grandmother. (Doc. 7-10, p. 6).
14

The next day, December 3, 2013, Mr. Tinnon reported to Gadsden Regional
Medical Center for a drug overdose. Mr. Tinnon “took approximately 10 Tegretol
not in a suicide attempt but to calm his level of anxiety down.” (Doc. 7-9, p. 102).
Mr. Tinnon reported that “he ha[d] been stabilized on Tegretol 400 mg b.i.d from
Dr. Lachman,” but prior to admission, Mr. Tinnon “had an increased level of
anxiety to where he pace[d], ha[d] increased worry, and ha[d] difficulty shutting
his mind down.” (Doc. 7-9, p. 102). Doctors determined that Mr. Tinnon required
hospitalization for an “unintentional overdose [] and medication monitoring for
Tegretol level which could be dangerous as an outpatient.” (Doc. 7-9, p. 103).
Admission notes state that:
[Mr. Tinnon]’s [s]peech is hyperverbal.
Behavior is bizarre,
withdrawn with inappropriate laughter at times.
Motor, no
psychomotor agitation or retardation. Mood and affect are labile.
Thought process is overly inclusive with grandiose themes. Thought
content, no auditory or visual hallucinations. No suicidal or homicidal
ideation. Insight is fair. Judgment is poor. He is alert and oriented
x4.
(Doc. 7-9, p. 102).
Mr. Tinnon was stabilized on medication and discharged six days later.
(Doc. 7-9, pp. 100-101). Mr. Tinnon’s discharge report states:

The patient was admitted to Psychiatry. His Tegretol level was
checked and he was restarted on Tegretol 400 mg b.i.d. We also
started propranolol 10 mg t.i.d. for anxiety, which worked extremely
well for him. He asked to go off Ambien for sleep and did sleep well
with trazodone. He feels that this combination of medicines will
15

likely work well for him. He was pleasant with staff, attended groups,
required no IM p.r.n.
There is no seclusion or restraint.
Consequently, it was determined that he had received maximum
benefit from his hospitalization and could allow to be discharged.
(Doc. 7-9, p. 100).
On January 27, 2014, Mr. Tinnon saw Mr. Harvey. Mr. Harvey stated that
Mr. Tinnon “continue[d] to ramble about medications to let me know how much he
knows. Doing about the same but less jittery. Is compliant on medications. No
other problems reported.” (Doc. 7-13, p. 21).
On March 10, 2014, Mr. Tinnon saw Mr. Harvey again. (Doc. 7-13, p. 22).
Mr. Harvey stated:
Pt. is doing as well as can be expected. Feels he needs to be taken off
Tegretol and begin taking Litihium Carbonate instead. He plans to
talk with Dr. [Lachman] about this next week. Pt. has been sitting
with his elderly grandmother for the past several weeks without any
relief. Finds himself co[o]ped up and needs to get out. He is sleeping
better, and his appearance has improved. Pressure of speech
continues flight of ideas and difficulty concentrating/focusing.
Memory is also impaired. . . .
(Doc. 7-13, p. 23).
In April 2014, just six weeks before Dr. Lachman completed a mental health
source statement on Mr. Tinnon’s behalf (Doc. 7-13, p. 28), Mr. Tinnon told Mr.
Harvey that he was feeling “better,” “trying to get out a little more,” and “sits with
his grandmother 4 days [a] week.” (Doc. 7-13, p. 27). Mr. Tinnon told Mr.
Harvey that he was waiting for a disability hearing. Mr. Harvey explained to Mr.
16

Tinnon that a judge would “weigh all the facts as to his medical condition and
decide if he meets the definition of having a disability. The fact that I believe he
has a disability is my opinion but the judge will call the shot. [Mr. Tinnon]
understands the process.” (Doc. 7-13, p. 27).
This collection of medical records, viewed as a whole, indicate that although
Mr. Tinnon’s condition worsened periodically, he was stable and was able to
maintain employment when he consistently took the proper dosage of his
prescribed medications. (See e.g., Doc. 7-10, pp. 10, 12, 22, 27; Doc. 7-11, pp. 6,
9, 21-22, 25-26, 30, 32, 35; Doc. 7-12, p. 4, 10, 29).

Mr. Tinnon’s three

hospitalizations were the result of his failure to comply with his regimen of
prescription medication.
In January 23, 2012, when Mr. Tinnon was admitted to Mountain View
Hospital “for safety, evaluation and treatment of mood disturbances,” Mr. Tinnon
stated that he takes Neurontin for his bipoloar disorder, but Mr. Tinnon “admit[ted]
to noncompliance.” (Doc. 7-9, p. 3). During his admission, Mr. Tinnon’s “mood
[was] stabilized with pharmacotherapy and active participation in group therapy,
activity therapy and individualized therapy. He completed Librium detox. He [is]
discharged in [a] much improved condition, denying suicidal ideation, homicidal
ideation and perceptual disturbances. He was compliant with current medication
regimen with no complaints of adverse effects.” (Doc. 7-9, pp. 4-5). Regarding
17

Mr. Tinnon’s prognosis at discharge, doctors recommended “continued treatment
on an out-patient basis, medication compliance and development of strong positive
support system for favorable outcome.” (Doc. 7-9, p. 5).
During the hospitalization that lasted from June 16, 2013 until June 19,
2013, Mr. Tinnon admitted that he had “stopped his medications about a month
prior to admission” because he felt like they “did not help [him].” (Doc. 7-9, p.
64). After a few days of treatment with his prescribed medications, the discharge
report stated that Mr. Tinnon was:
[c]ooperative, pleasant white male, logical, goal directed in his
thoughts. Normal attention and concentration, mildly pressured in his
speech. Hygiene was good. No response to internal stimuli.
Alertness and orientation was full. Language use was normal.
Reliability was judged to be good. Insight was improved. Risk
assessment was increased by mild manic symptoms and 1 prior
suicide attempt. Decreased otherwise by his absent suicidal ideation,
willingness to continue treatment and increasing mood stability.
(Doc. 7-9, p. 65).1
Similarly, at the end of another hospitalization in December 2013 during
which Mr. Tinnon was “restarted on Tegretol 400 mg b.i.d” and “propranolol 10
mg t.i.d. for anxiety, which worked extremely well for him,” a discharge report
stated that:

1

The discharge note stating that Mr. Tinnon previously attempted suicide on one occasion
conflicts with Mr. Tinnon’s report to Dr. Lachman that he had not attempted suicide. (See Doc.
7-10, p. 14).
18

[Mr. Tinnon] is awake, alert, oriented x4. Speech is hyperverbal with
excellent fund of knowledge and good vocabulary. Mood and affect
are full range. Thought process is linear. Thought content, no
auditory or visual hallucinations. No suicidal or homicidal ideation.
Insight and judgment are good.
(Doc. 7-9, pp. 100-101).
Reports from two consultative examiners, Dr. Jack Bentley, Jr. and Dr.
Sylvia Colon-Lindsey, indicate that Mr. Tinnon functions adequately when he
takes his medications as prescribed. After he examined Mr. Tinnon on May 2,
2012, Dr. Bentley explained that Mr. Tinnon “would often discontinue his
medications when his symptoms seemed to stabilize.” (Doc. 7-13, p. 44). Dr.
Bentley explained that “[t]he use of Depakote has helped to treat [Mr. Tinnon’s]
rapid cycling mood swings. (Doc. 7-13, p. 45). Regarding Mr. Tinnon’s mental
status, Dr. Bentley reported:
[Mr. Tinnon’s] dress, grooming and personal hygiene were all
satisfactory. There was no evidence of deterioration in his daily living
skills. He easily ambulated about the office area. The client appeared
to be his stated age.
[Mr. Tinnon] made good eye-to-eye contact.
There was no
impairment in his receptive or expressive communication skills. His
tertiary and immediate memories were intact. The client’s mood was
reasonably appropriate and his affect was of normal range. There was
evidence of a moderate psychomotor tremor in his upper and lower
extremities. He attributed his symptoms of tremulousness to being a
side effect of the Depakote. The client’s mood was cheerful and
congruent with his affect. The claimant was mildly anxious. He did
not appear to be in any significant distress during the interview.
There was no evidence of phobias, obsessions or unusual behaviors.
19

...
(Doc. 7-13, pp. 45-46).
Regarding Mr. Tinnon’s daily activities, Dr. Bentley stated:
The claimant sleeps poorly. The client has racing thoughts,
significant anxiety and intermittent panic without formal anxiety
attacks which occur at night. He does not attend church. Mr. Tinnon
assists with cleaning his parents’ house. The client has a male friend
who also resides at his parents’ house and they are helping to
refurbish the residence. The claimant completes his [activities of
daily living] without assistance.
(Doc. 7-13, p. 46).
After the examination, Dr. Bentley opined that Mr. Tinnon is “competent to
manage funds, should they be awarded.”

Dr. Bentley also opined that Mr.

Tinnon’s “impairment for complex or repetitive tasks would fall in the marked to
severe range,” and his “impairment for simple tasks would fall in the moderate
range.” (Doc. 7-13, p. 47).
Dr. Colon-Lindsey examined Mr. Tinnon on March 7, 2014, three months
before Dr. Lachman completed the medical source statement on which Mr. Tinnon
relies. Dr. Colon-Lindsey noted that Mr. Tinnon had “[s]everal inpatient
psychiatric hospitalizations with the last one two months ago” and was receiving
“[o]utpatient psychiatric treatment with a counselor and medication management.”
(Doc. 7-10, p. 59). Dr. Colon-Lindsey reviewed Mr. Tinnon’s work history and
stated that:
20

He last worked at a chicken processing plant for one month in June
2013. He stopped working when he quit due to physical issues. He
has worked at The Waffle House and Office Max. Either he has been
fired or he quit. He has not worked since July 2013 because of
multiple relapses and hospitalizations. He is still looking for jobs.
(Doc. 7-10, p. 59).
Dr. Colon-Lindsey described Mr. Tinnon’s concentration, persistence, and
pace as “good,” and he “did not have to be redirected.” (Doc. 7-10, p. 59). Mr.
Tinnon was “alert and oriented,” his mood was described as “feeling good,” and
his affect was “stable and appropriate to thought content.” (Doc. 7-10, p. 60). Dr.
Colon-Lindsey found “no evidence of immaturity or childishness.” (Doc. 7-10, p.
60).

Mr. Tinnon’s concentration was “good,” his abstract thinking was

“appropriate,” and his judgment and insight were both “appropriate.” (Doc. 7-10,
pp. 60-61). Although Mr. Tinnon demonstrated “slight pressure of speech,” he did
not exhibit evidence of “abnormal communication,” and Dr. Colon-Lindsey found
“no evidence of loose associations, tangential, circumstantial thinking or
confusion.” (Doc. 7-10, p. 60). Mr. Tinnon’s immediate, recent, and past memory
were “good” as was his fund of knowledge and information for current events.
(Doc. 7-10, p. 60). Mr. Tinnon told Dr. Colon-Lindsey that he did “a lot of social
networking” and other activities on his computer, listened to music frequently, did
laundry, took care of pets, loaded the dishwasher, regularly went to the grocery

21

store, and cooked his own meals. (Doc. 7-10, p. 59). Mr. Tinnon reported that he
provided sitting services to his grandmother “all day.” (Doc. 7-10, p. 59).
Dr. Colon-Lindsey found Mr. Tinnon “is not able to manage his own money
due to the frequency of his manic episodes and excessive impulse spending.”
(Doc. 7-10, p. 61). Dr. Colon-Lindsey opined that Mr. Tinnon’s ability to perform
a number of functions is “moderately limited” because of impairments. (Doc. 710, pp. 61-62). She also stated that Mr. Tinnon’s “prognosis is guarded due to
multiple relapses.” (Doc. 7-10, p. 61).
Dr. John Schosheim’s medical interrogatory and mental health source
statement do not warrant remand because Dr. Schosheim is a one-timer reviewer,
and he provided little support for his conclusory opinions.

Dr. Schosheim

reviewed evidence that Mr. Tinnon’s attorney provided to him. Dr. Schosheim
listed bipolar disorder and ADHD as Mr. Tinnon’s impairments. (Doc. 7-13, p.
30). Dr. Schosheim did not elaborate or explain how the records he reviewed
support his opinion. Dr. Schosheim’s medical interrogatory states that Mr. Tinnon
has moderate restrictions in activities of daily living, extreme limitations in social
functioning, and marked limitations in maintaining concentration, persistence, and
pace. (Doc. 7-13, p. 31). Dr. Schosheim also noted that Mr. Tinnon experiences
“continuous” repeated episodes of decomposition, each of extended duration.
(Doc. 7-13, p. 31).
22

Dr. Schosheim completed a pre-printed mental health source statement like
the one Dr. Lachman completed in June 2014. (Doc. 7-13, p. 33). According to
Dr. Schosheim, Mr. Tinnon has mild to moderate limitations in his ability to
“understand and remember simple instructions,” moderate limitations in his ability
to “carry out simple instructions,” marked limitations in his “ability to make
judgments or simple work-related decisions,” moderate limitations in “[t]he ability
to understand and remember complex instructions,” and marked limitations in
“[t]he ability to make judgments on complex work-related decisions.” (Doc. 7-13,
p. 33).

Dr. Schosheim indicated on the form that Mr. Tinnon has marked

limitations in his ability to “[i]nteract appropriately with the public,” extreme
limitations in his ability to “[i]nteract appropriately with supervisor(s)” extreme
limitations in his ability to “[i]nteract appropriately with co-workers,” and marked
limitations in his ability to “[r]espond appropriately to usual work situations and to
changes in a routine work setting.” (Doc. 7-13, p. 33). Dr. Schosheim answered
“yes” when asked if Mr. Tinnon’s impairments affect other capabilities, but he did
not respond to the next question, which asked him to identify those capabilities and
how they are affected. (Doc. 7-13, p. 34). In the portion of the form that asked
him to “[i]dentify the factors (e.g. the particular medical signs, laboratory findings,
or other factors described above) that support” his assessment, Dr. Schosheim
wrote: “Can’t get along [with] others; can’t sustain attention – distractibility 
23

significant. Mood swings – interfere [with] performance and ability to sustain
work.” (Doc. 7-13, p. 34).
The ALJ gave little weight to Dr. Schosheim’s opinion because it is “based
solely on [Dr. Schosheim’s] review of some particular documents only and he
never personally interviewed, observed or examined [Mr. Tinnon].” (Doc. 7-3, p.
23). The ALJ also gave little weight to Dr. Schosheim’s opinion because it “is
inconsistent with other examining treating source records that show [Mr. Tinnon’s]
mood is stable when compliant with medication.” (Doc. 7-3, p. 23).

Substantial

evidence supports the ALJ’s decision to give less weight to Dr. Schosheim’s
opinion. See Gray v. Comm’r of Soc. Sec., 550 Fed. Appx. 850, 854 (11th Cir.
2013) (“The opinions of nonexamining, reviewing physicians, when contrary to the
opinion of a treating or examining physician, are entitled to little weight and do
not, ‘taken alone, constitute substantial evidence.’”) (quoting Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)); Sharfarz v. Bowen, 825 F.2d 278,
280 (11th Cir. 1987) (“[T]he ALJ may reject any medical opinion if the evidence
supports a contrary finding.”).
B.

Substantial Evidence Supports the ALJ’s Conclusion that Mr.
Tinnon Does Not Meet Listing 12.04.

A “claimant has the burden of proving an impairment meets or equals a
listed impairment.” Barclay v. Comm’r of Soc. Sec., 274 Fed. Appx. 738, 741
(11th Cir. 2008) (citing Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)).
24

“Listing 12.04 provides that a claimant is disabled if []he has a sufficiently severe
‘disturbance of mood, accompanied by a full or partial manic or depressive
syndrome.’” Id. (quoting 20 C.F.R. § 404, Subpt. P, App. 1, § 12.04). “To meet
Listing 12.04 for affective disorders, a claimant must meet the requirements in
both paragraphs A and B, or meet the requirements in paragraph C.” Himes v.
Comm’r of Soc. Sec., 585 Fed. Appx. 758, 762 (11th Cir. 2014) (citing 20 C.F.R. §
404, Subpt. P, App. 1, § 12.04). “Paragraph A requires ‘[m]edically documented
persistence, either continuous or intermittent,’ of a qualifying depressive
syndrome, manic syndrome, or bipolar syndrome.” Himes, 585 Fed. Appx. at 763
(quoting 20 C.F.R. § 404, Subpt. P, App. 1, § 12.04(A)(1)-(3)).
The ALJ determined that Mr. Tinnon did not meet or medically equal a
Listing 12.04. (Doc. 7-3, p. 17). The ALJ concluded that Mr. Tinnon’s depression
did not “meet the criteria of Appendix 1, dealing with affective disorders” because
“[t]he evidence failed to show that the claimant’s condition is characterized by a
disturbance of mood, accompanied by a full or partial manic or depressive
syndrome.” (Doc. 7-3, p. 17).
To make this finding, the ALJ first considered whether the “‘Paragraph B’
criteria are satisfied.” (Doc. 7-3, p. 18).2 “Paragraph B requires that the medically

2

Although the ALJ did not consider the Paragraph A criteria for Listing 12.04, this error is
harmless because Mr. Tinnon must show he meets the criteria in both Paragraphs A and B, and
25

documented persistent syndrome result in at least two of the following: (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 decompensation, each of extended duration.”
Himes, 585 Fed. Appx. at 763 (citing 20 C.F.R. § 404, Subpt. P, App. 1, §
12.04(B)).

“Episodes of decompensation are ‘exacerbations or temporary

increases in symptoms or signs accompanied by a loss of adaptive functioning, as
manifested by difficulties in performing activities of daily living, maintaining
social relationships, or maintaining concentration, persistence, or pace.’”

Id.

(citing 20 C.F.R. § 404, Subpt. P, App. 1, § 12.00(C)(4)). “To have a repeated
episode of ‘extended duration,’ a claimant must have three episodes within one
year, or an average of once every 4 months, each lasting at least two weeks.’” Id.
(citing 20 C.F.R. § 404, Subpt. P, App. 1, § 12.00(C)(4)).
Regarding the Paragraph B criteria, substantial evidence supports the ALJ’s
conclusion that Mr. Tinnon has moderate limitations in activities of daily living,
social functioning, and maintaining concentration, persistence, and pace. Evidence
in the administrative record indicates that Mr. Tinnon is independent in his

substantial evidence supports the ALJ’s finding that Mr. Tinnon does not satisfy Paragraph B.
See Himes, 585 Fed. Appx. at 764.
26

activities of daily living. (Doc. 7-10, p. 59). Mr. Tinnon reported to Dr. ColonLindsey that:
He provides sitting service to his grandmother all day. He does a lot
of social networking. He does his own laundry and he also takes care
of the pets. He likes to listen to music frequently. He also does
sweeping and mopping. He loads the dishwasher, goes to the store,
and cooks his own meals. He works on the computer.
(Doc. 7-10, p. 59).
In “Section B – Information about Daily Activities” of his Function Report,
Mr. Tinnon wrote that he was able to “accomplish basic grooming,” “read and
speak with others online, watch TV on and off,” do “more house work, fix dinner .
. .” (Doc. 7-7, p. 42). Mr. Tinnon indicated that he was able to prepare “canned
and microwavable meals . . . [s]andwiches and simple salads.” (Doc. 7-7, p. 44).
Mr. Tinnon reported that he was able to do his own “basic housework including
dishes, laundry, cleaning, and trash rem[oval].” (Doc. 7-7, p. 44).

On the same

form, Mr. Tinnon wrote that he “feed[s] the dogs and let[s] them out and back in.”
(Doc. 7-7, p. 43). Mr. Tinnon also stated that he was able to drive “but not
unmedicated” and “not when [he has] significant mood flares.” (Doc. 7-7, p. 43).
When Mr. Tinnon experiences a depressive episode, he has trouble dressing,
bathing, caring for his hair, and shaving. (Doc. 7-7, p. 43). Mr. Tinnon reported
that he goes outside “[e]very 1-3 days” and shops “[o]nce a week” for
approximately one hour. (Doc. 7-7, p. 45). Mr. Tinnon also indicated that his
27

hobbies are reading and “socializing in text/person.” (Doc. 7-7, p. 46).

When

asked to describe what kinds of things he does with others, Mr. Tinnon wrote,
“primarily just talk. Most of this occurs online . . . ,” and he “use[s] a PC daily for
this purpose.” (Doc. 7-7, p. 46).
In contrast to Mr. Tinnon’s self-assessment (see Doc. 7-7, p. 47), medical
evidence suggests that Mr. Tinnon’s attention and concentration are “good and he
did not have to be redirected.” (Doc. 7-10, p. 59). Dr. Colon-Lindsey noted that
Mr. Tinnon’s ability to “perform activities within a schedule, maintain regular
attendance and be punctual within customary occurrence,” “interact with the
general public,” and “respond appropriately to work pressures or changes in the
work setting despite impairment” is only “[m]oderately limited.” (Doc. 7-10, p.
61).
Substantial evidence also supports the ALJ’s conclusion that Mr. Tinnon’s
three psychiatric admissions (Doc. 7-9, pp. 3-4, 58-65, 69-106) do not constitute
periods of decompensation under Paragraph B because none of the episodes lasted
“for at least 2 weeks,” as the Listing requires. 20 C.F.R. § 404, Subpt. P, App. 1, §
12.00(C)(4).

Additionally, as the ALJ explained, the episodes involved Mr.

Tinnon’s noncompliance with prescribed medications, and Mr. Tinnon’s condition

28

stabilized when he resumed his medication regimen. The Court discussed Mr.
Tinnon’s three hospitalizations above. See pp. 14-15; 17-19, supra.3
Substantial evidence also supports the ALJ’s finding that Mr. Tinnon did not
satisfy any of the three conditions required for Paragraph C. Paragraph C requires
a “[m]edically documented history of a chronic affective disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to do
basic work activities, with symptoms or signs currently attenuated by medication
or psychosocial support,” in addition to one of the following: (1) “[r]epeated
episodes of decompensation, each of extended duration;” (2) “[a] residual disease
process that has resulted in such marginal adjustment that even a minimal increase
in mental demands or change in the environment would be predicted to cause the
individual to decompensate;” or (3) a “current history of at least [one] or more
years’ inability to function outside a highly supportive living arrangement, with an

3

Medical evidence in the administrative record suggests that Mr. Tinnon was admitted for a
fourth in-patient psychological consult in February 2012. (Doc. 7-9, pp. 6-11). On February 8,
2012, Mr. Tinnon arrived at Gadsden Regional Medical Center via EMS with an “intentional
overdose” after taking “approximately 10 Restoril and an unknown a[m]ou[n]t of liquor.” (Doc.
7-9, p. 6). Mr. Tinnon stated that his “medications have gotten his bipolar stable, but his anxiety
is not.” (Doc. 7-9, p. 6). After an initial assessment, Mr. Tinnon was “admitted and started on
close monitoring, IV fluids. Follow up labs. Psych consult.” The admission note stated that
“[h]opefully [he] will be cleared soon medically to go to the Psych Unit.” (Doc. 7-9, p. 11).
Although admission notes indicated that Mr. Tinnon would receive a psychological consult, the
administrative record does not contain documentation of the psychological consultation. Mr.
Tinnon’s briefs indicate that he believes he has had three psychiatric admissions since January
2012. (See Doc. 10, p. 30).
29

indication of continued need for such an arrangement.” 20 C.F.R. § 404, Subpt. P,
App. 1, § 12.04(C).
Regarding the first condition, Mr. Tinnon did not show the required periods
of decompensation because his hospital admissions did not last for more than two
weeks. (Doc. 7-9, pp. 3-4, 58, 64-65, 70, 100). As for the second condition,
medical opinions and evidence indicating that Mr. Tinnon has mild or moderate
limitations in activities of daily living, social functioning, and maintaining
concentration, persistence, or pace support the ALJ’s conclusion that a minimal
increase in mental demands or a change in the environment would not predictably
cause Mr. Tinnon to decompensate. As for the third condition, the record indicates
that Mr. Tinnon was not completely unable to function outside a highly supportive
living arrangement. Mr. Tinnon has been independent in his activities of daily
living and has provided care for his grandmother. (Doc. 7-7, pp. 42-46; Doc. 713, p. 27).
Because Mr. Tinnon’s impairments do not satisfy the requirements of either
Paragraph B or Paragraph C, substantial evidence supports the ALJ’s decision that
Mr. Tinnon’s mental impairments do not meet Listing 12.04.
V.

CONCLUSION
For the reasons discussed above, the Court finds that the ALJ’s decision is

supported by substantial evidence, and the ALJ applied proper legal standards.
30

Under the applicable standard of review, the Court may not reweigh the evidence
or substitute its judgment for that of the Commissioner. Accordingly, the Court
affirms the Commissioner’s decision.

The Court will enter a separate final

judgment consistent with this memorandum opinion.
DONE and ORDERED this October 24, 2016.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

31