Whitehead v. Social Security Administration, Commissioner

Filing 24

MEMORANDUM OPINION - Upon review of the administrative record, and considering all of Ms. Whites arguments, the court finds the Commissioners decision is supported by substantial evidence and is in accord with the applicable law. A separate order will be entered affirming the determination of the Commissioner and dismissing this case with prejudice. Signed by Magistrate Judge T Michael Putnam on 9/11/2018. (KEK)

FILED
2018 Sep-11 AM 10:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

TONYA LASHAY WHITE,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. 4:17-CV-00259-TMP

MEMORANDUM OPINION
I.

Introduction
The plaintiff, Tonya Lashay White, appeals from the decision of the

Commissioner1 of the Social Security Administration (“Commissioner”) denying
her application for a period of disability and Disability Insurance Benefits (“DIB”).
Ms. White timely pursued and exhausted her administrative remedies and the
decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g),

1

It appears, from the briefs filed by the Government in other Social Security cases and from
news reports, that there is neither a Commissioner nor an Acting Commissioner currently serving
in the Administration, but that the functions of the job still are being performed by Nancy A.
Berryhill.
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1383(c)(3). The parties have consented to the exercise of dispositive jurisdiction
by a magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 22).
The plaintiff was 42 years old on the date of the ALJ’s opinion. (Tr. at 23).
Her past work experience includes employment as a poultry trimmer and poultry
eviscerator. (Tr. at 23). The plaintiff claims that she became disabled on April 18,
2013, from “bipolar disorder; panic disorder with agoraphobia; major depressive
disorder, recurrent; severe and posttraumatic stress disorder; severe anemia; severe
headaches; chronic low back pain; severe right forearm pain and loss of grip
strength s/p 2 surgery with pins and plates.” (Doc. 11, p. 3).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
she is, the claimant is not disabled and the evaluation stops. Id. If she is not, the
Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends on the medical

2

The court assumes the abbreviation “s/p” means “secondary to” or “post” surgery.
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evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant’s impairments are not severe, the analysis stops.

20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
three, which is a determination of whether the claimant’s impairments meet or
equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments fall within this category, she will be found disabled without further
consideration. Id. If they do not, a determination of the claimant’s residual
functional capacity will be made and the analysis proceeds to the fourth step. 20
C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an
assessment, based on all relevant evidence, of a claimant’s remaining ability to do
work despite her impairments. 20 C.F.R. § 404.945(a)(1).
The fourth step requires a determination of whether the claimant’s
impairments prevent her from returning to past relevant work.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

20 C.F.R.

If the claimant can still do her past

relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant’s RFC, as well as the
claimant’s age, education, and past work experience, in order to determine if she
can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the
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claimant can do other work, the claimant is not disabled. Id. The burden is on the
Commissioner to demonstrate that other jobs exist which the claimant can perform;
once that burden is met, the claimant must prove her inability to perform those jobs
in order to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999).
Applying the sequential evaluation process, the ALJ found that the plaintiff
had not engaged in substantial gainful activity since the application date, April 18,
2013.

(Tr. at 13).

According to the ALJ, the plaintiff has the following

impairment that is considered “severe” based on the requirements set forth in the
regulations: “bipolar disorder.”

Id.

He also determined that the plaintiff’s

“dyspnea, bradycardia, heart murmur, edema, numbness, and tingling” were
related to anemia resulting from menorrhagia, were responding well to treatment,
and are non-severe. Id at 13-4. Additionally, Plaintiff’s allergic rhinitis, lower
back pain, and right arm pain resulting from a prior fracture and surgery are nonsevere. Id at 14-5. He determined that the plaintiff’s carpal tunnel syndrome was
not supported by evidence of a medically determinable physical or mental
condition (Tr. at 15). The ALJ found that the plaintiff’s severe and non-severe
impairments, separately and in combination, neither meet nor medically equal any
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id at 16.
The ALJ found that the plaintiff’s physical impairments were not limiting as
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required by the listings.

Id.

The ALJ found the plaintiff to have moderate

restriction in activities of daily life, moderate difficulties in social functioning, and
moderate difficulties with regard to concentration and persistence. Id. The ALJ
determined that the plaintiff has the residual functional capacity to perform work at
all exertional levels with non-exertional limitations. Id at 17. The ALJ further
elaborated:

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform a full
range of work at all exertional levels but with the following nonexertional limitations: the claimant can understand, remember, and
carry out simple instructions, but not detailed or complex instructions;
can adapt to workplace changes that are infrequent and introduced
gradually; can occasionally interact with the public and frequently
interact with co-workers and supervisors; and lastly, is capable of
sustaining concentration and attention for at[least] two (2) hours at a
time with customary breaks throughout an eight-hour workday.

(Tr. at 17-8)
According to the ALJ, the plaintiff is able to perform her past relevant work
as a poultry eviscerator and poultry trimmer, she is a “younger individual,” and has
“at least a high school education,” as those terms are defined by the regulations.
(Tr. at 23).

In addition to her past work as a poultry trimmer and poultry

eviscerator, the ALJ determined that there are a significant number of other jobs in
the national economy that she is capable of performing, such as a cleaner, hand
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packer, or laundry worker. (Tr. at 24). The ALJ concluded his findings by stating
that Plaintiff “has not been under a disability, as defined in the Social Security Act,
since April 18, 2013, the date the application was filed.” Id.

II.

Standard of Review
This court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether
there is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not
decide facts, weigh evidence, or substitute its judgment for that of the
Commissioner. Id. “The substantial evidence standard permits administrative
decision makers to act with considerable latitude, and ‘the possibility of drawing
two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’”

Parker v.

Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting
Consolo v. Federal Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this
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court finds that the evidence preponderates against the Commissioner’s decision,
the court must affirm if the decision is supported by substantial evidence. Miles,
84 F.3d at 1400. No decision is automatic, however, for “despite this deferential
standard [for review of claims] it is imperative that the court scrutinize the record
in its entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct
legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635
(11th Cir. 1984).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “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; i.e., that would direct the determination or
decision of disability.”

20 C.F.R. §§ 404.1527(e), 416.927(d).

Whether the

plaintiff meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the 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). Thus, even if the court were to
disagree with the ALJ about the significance of certain facts, the court has no

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power to reverse that finding as long as there is substantial evidence in the record
supporting it.

III.

Discussion

Plaintiff Tonya Lashay White asserts nine points of error that she argues
require the case to be remanded to the Commissioner for further consideration.
(Doc. 11, p. 1). First, Plaintiff alleges that the ALJ failed to give sufficient weight
to the opinion of Dr. Odjegba, a treating physician, and did not articulate reasons
for rejecting his opinion. Id. Second, Ms. White asserts that the ALJ did not
consider all of her severe impairments. Id. Third, she argues that the ALJ should
have given more weight to the opinion of Dr. Feist or more clearly articulated the
reasons that the opinion was discredited. Id. Fourth, Ms. White claims it was
reversible error for the ALJ to give so little weight to the Commissioner’s own
consultative examiner. Id. Fifth, Plaintiff argues that the ALJ’s finding that she
can perform past work is erroneous, not supported by substantial evidence, and not
in accordance with correct legal standards. Id. Sixth, the plaintiff asserts that the
ALJ did not articulate sufficient reasons to find the plaintiff not credible or to
discredit her testimony.

Id.

Seventh, Plaintiff asserts that she meets the

requirements for Listing 12.04 and/or 12.06, and the ALJ’s finding to the contrary
is not backed by substantial evidence. Id. Ms. White’s eighth asserted error is that
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the Appeals Committee failed to consider newly submitted evidence dated after the
ALJ decision and failed to include that evidence in the record. Id. Ninth and
lastly, Plaintiff asserts that the ALJ erroneously did not fully consider all of the
side effects of her medication. Id.
A. Treating Physicians
Ms. White alleges that the opinions from her two treating sources, Dr.
Odjegba and Dr. Feist, should have been given greater weight, and that the ALJ
failed to show good cause for giving the opinions less weight. (Doc. 11, pp. 20-2,
24-5). The Commissioner argues that there is substantial evidence to support the
ALJ’s decision to give less weight than is normally afforded to the opinion of a
treating source. (Doc. 16, pp. 17, 20). The ALJ gave “little weight” to the opinion
of Dr. Odjegba because she found that the opinion “is not supported by the
objective medical evidence or his own PE findings, which show little
abnormalities.” (Tr. at 16). The ALJ gave “little weight” to the opinion of Dr.
Feist because she found it was “without substantial support from other evidence of
record,” “quite conclusory,” and expressed limitations that were “extremely out of
proportion with his treatment notes and other evidence of record.” (Tr. at 20).
A treating physician’s testimony is entitled to “substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Crawford v. Commissioner
of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Lewis v.
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Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal quotations omitted). The
weight to be afforded a medical opinion regarding the nature and severity of a
claimant’s impairments depends, among other things, upon the examining and
treating relationship the medical source had with the claimant, the evidence the
medical source presents to support the opinion, how consistent the opinion is with
the record as a whole, and the specialty of the medical source. See 20 C.F.R.
§§ 404.1527(d), 416.927(d). Furthermore, “good cause” exists for an ALJ to not
give a treating physician’s opinion substantial weight when the: “(1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also Edwards v. Sullivan,
937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good cause” existed where
the opinion was contradicted by other notations in the physician’s own record).
The Court also must be aware of the fact that opinions such as whether a
claimant is disabled, the claimant’s residual functional capacity, and the
application of vocational factors “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; i.e., that would direct the determination or
decision of disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). The Court is
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interested in the doctors’ evaluations of the claimant’s “condition and the medical
consequences thereof, not their opinions of the legal consequences of his [or her]
condition.” Lewis, 125 F.3d at 1440. Such statements by a physician are relevant
to the ALJ’s findings, but they are not determinative, as it is the ALJ who bears the
responsibility for assessing a claimant’s residual functional capacity. See, e.g., 20
C.F.R. § 404.1546(c).
1. Dr. Odjegba
The ALJ gave “little weight” to Dr. Odjegba’s opinion in the Physical
Capacities Form completed on May 28, 2015. (Tr. at 15). In that opinion, Dr.
Odjegba opined that Plaintiff: (1) could stand for two hours; (2) would need to lie
down, sleep, or prop up her feet for four out of eight day time working hours;
(3) could not push or pull well enough to use controls; and (4) had some
manipulative limitations with both her left and right hand. (Tr. at 560). He
indicated that the plaintiff’s restrictions were caused by “lumbago, severe anemia,
carpal tunnel syndrome, hand pain, and bipolar disorder.” Id. He also stated that
the plaintiff experienced nausea and vomiting as side effects of her medication. Id.
The ALJ noted that these finding were excessive in comparison to the
limitations which Dr. Odjegba noted during his physical examinations of the
plaintiff. (Tr. at 15). The ALJ found that the doctor’s treatment notes do not show
that Dr. Odjegba ever diagnosed or treated the plaintiff for carpal tunnel syndrome
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or that she ever consistently reported chronic pain to him. Id. Additionally, she
noted that the plaintiff’s anemia was a seriously limiting condition, but the plaintiff
had responded well to treatment and her red blood cell levels where almost back to
normal. Id. Additionally, the ALJ found that the limitations expressed in Dr.
Odejegba’s opinion were not explained by the plaintiff’s bipolar disorder. Id.
Similarly, Dr. Odjegba opined that the plaintiff experiences nausea and vomiting as
side effects of her medication, yet the plaintiff never reported those side effects
during her check-ups. Id.
The court has reviewed the medical records. Plaintiff has a history of low
back pain. On October 4, 2012, she was treated at Gadsden Memorial Hospital and
on October 11, 2012, she was treated at Riverview Medical Center for back pain
(lumbago). (Tr. at 346-7, 505). However, she did not report back pain as a
symptom or receive treatment from Dr. Odjegba for it. See (Tr. at 475-540).
Similarly, Plaintiff has a history of “profound” anemia, which required a blood
transfusion. (Tr. at 448-470). Plaintiff’s anemia was caused by menorrhagia, and
through a combination of Provera, iron treatments, and blood transfusions, her
anemia is vastly improved. (Tr. at 518, 527, 535, 548). The court agrees with the
ALJ that it can find no mention at all where Dr. Odjegba diagnosed the Ms. White
as having carpal tunnel syndrome, nor did he ever prescribe treatment for the
condition. See (Tr. at 16). There also is no support in the treatment notes for the
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opinion that the plaintiff is suffering from disabling hand pain. Plaintiff
complained of hand pain on August 26, 2014, but at her next visit on
September 16, 2014, she no longer reported the pain and did not report it again
subsequently. (Tr. at 479, 485-7). Plaintiff has a long history of mental health
issues, including bipolar disorder. (Tr. at 415, 429, 432, 471-3, 475-6, 552).
However, given that this is a mental impairment, the court does not see how this
could explain the significant physical limitations in Dr. Odjegba’s opinion. In
sum, the court finds that the ALJ had good cause to give Dr. Odjegba’s opinion
only “little weight.”
2. Dr. Feist
Dr. Feist was Ms. White’s treating psychiatrist, and the plaintiff argues that
the ALJ did not have good cause to reject Dr. Feist’s opinion. (Doc. 11, p. 24).
The Commissioner argues that the ALJ was correct in her determination that the
limitations expressed in the Mental Health Source Statement were not supported by
Dr. Feist’s treatment notes. (Doc. 16, p. 17). In a form dated May 13, 2015, he
opined that the plaintiff could “understand, remember, or carry out very short and
simple instructions.” (Tr. at 551). However, he also opined that Plaintiff could not
(1) “maintain attention, concentration, and/or pace for periods of at least two
hours,” (2) “perform activities within a schedule, maintain regular attendance, and
be punctual within customary practices,” (3) “sustain an ordinary routine without
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special supervision,” (4) “accept and respond appropriately to criticism from
supervisors,” or (5) “maintain socially appropriate behavior and adhere to basic
standards of neatness and cleanliness.” Id. Additionally, Dr. Feist stated that he
would expect Plaintiff to miss 15-20 days of work out of a 30-day period due to
her symptoms. Id. He could not opine whether these limitations dated to April 18,
2013, when the plaintiff alleges she became disabled, presumably because he was
not treating the patient at that time. Id.
The ALJ gave this opinion “little weight” because it was conclusory and
inconsistent with the medical evidence. In reviewing the medical records, the
court must note, as an initial point, that many of the treatment notes from Dr. Feist
are illegible. See (Tr. at 431, 557). Given that neither the ALJ nor counsel for
either side seems to have been able to decipher them, the court’s analysis will
proceed from that point. See (Tr. at 20-1), (Doc. 11, p. 24-6), (Doc. 16 at 17-20).
On November 19, 2014, Dr. Feist noted that the plaintiff was depressed; had
insomnia; had “fair” judgment, insight, appetite, and energy/motivation; had
tangential thought process, had obsessive thought content; had agitated behavior;
was of adequate weight; and had an overall risk level of moderate. (Tr. at 431).
The written treatment notes record that “[she] doesn’t like to be around people,”
“depressed,” “thoughts of suicide,” and “father died of heroin O.D.” Id. On
March 11, 2015, Plaintiff again saw Dr. Feist. (Tr. at 557). This time he noted that
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she was depressed and anxious; had insomnia; had fair insight, judgment and
appetite; had a tangential and loose thought process; was having auditory/visual
hallucinations; had poor energy/motivation; exhibited agitated behavior; had
inadequate thought and concentration; had decreased weight; and had an overall
risk level of “high.” Id. The written treatment notes indicate “not sleeping well,”
“awakens at 4-5 a.m.,” “lives with 25 y.o. daughter,” “has 3 grandchildren.” Id.
These evaluations depict a serious degree of mental impairment and worsening
condition. Despite this apparent worsening of her condition, Dr. Feist reported her
progress as “fair,” with the only follow-up plan was for plaintiff to continue her
weekly counseling sessions and to see Dr. Feist again in 3 to 6 months. (Tr. at
557).
However, when compared with other treatment records from other care
providers, the evaluations seem wholly incongruous with other records from the
time frame. Before the plaintiff met with Dr. Feist on November 19, 2014, she was
treated by a therapist at CED Mental Health on October 23, 2014, where she was
noted to have appropriate appearance, dysphoric mood, and normal affect. (Tr. at
433). She also was noted to be oriented to person, place, time, and situation. Id.
She did report stress, anxiety, and depression, but also reported that she left the
house three times a week. Id. Just two weeks before seeing Dr. Feist, plaintiff was
seen by Dr. Odjegba for a follow-up on her menorrhagia and anemia on
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November 5, 2014.

(Tr. at 495).

At this visit Ms. White was noted to be

“negative” for anxiety and depression and as having “no changes to sleep
patterns.” Id. She also made no complaints related to her mental health at the
appointment. Id. Plaintiff was again seen by Dr. Odjegba on March 16, 2015, just
five days after seeing Dr. Feist, for a rash and for a follow up of her menorrhagia.
(Tr. at 542). Ms. White again reported “no changes to sleep patterns” and was
noted to have “appropriate mood and affect.” Id. at 543, 547. A month later,
plaintiff was treated by another therapist at CED on April 17, 2015. (Tr. at 556).
At this visit, Ms. White indicated that she was having depression and paranoia, but
was noted to be oriented to person, place, time, and situation. Id. Her appearance
was appropriate, her mood euthymic, and her affect was normal. Id. She reported
that “things were going okay,” but was afraid that an abusive ex-boyfriend might
be released from prison soon. Id.
Additionally, the treatment notes from Dr. Feist are quite brief and
conclusory. See (Tr. at 431, 557). They do not provide the court with additional
evidence to substantiate the medical opinions that he provided. Id. This fact, in
combination with the fact that Dr. Feist’s evaluations and opinion indicated a much
lower level of psychiatric functioning than any other piece of medical evidence
from the time frame, provided substantial evidence to support the ALJ’s opinion,
and provided good cause for the ALJ to afford less weight to Dr. Feist’s opinion.
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The ALJ did not err in reaching her conclusions regarding the weight to be
accorded these treating physicians’ opinions.
B. Severe Impairments
Plaintiff contends that the case should be remanded because the ALJ found
that she had only one severe impairment—bipolar disorder. (Doc. 11, p. 23). She
argues that her “panic disorder with agoraphobia; major depressive disorder,
recurrent, severe; posttraumatic stress disorder; headaches; anemia; chronic low
back pain; [and] severe right forearm pain and loss of grip strength s/p surgery
with pins and plates following fracture during motor vehicle accident” also should
have been considered severe impairments. Id. The Commissioner argues that the
ALJ considered all of the plaintiff’s severe impairments. (Doc. 16, p. 6).
To the extent that Plaintiff relies on McDaniel v. Bowen for the proposition
that “only claims based on the most trivial impairments [should be] rejected,” this
is without merit in the context of this case. See (Doc. 11, p. 24) (citing McDaniel
v. Bowen, 800 F.2d 1026 (11th Cir. 1986). In McDaniel v. Bowen, the court
reiterated the Brady standard for the determination of severe impairment. 800 F.2d
at 1031 (citing Brady v. Heckler, 724 F.2d 914 (11th Cir.1984)). That standard
provides an “impairment can be considered as not severe only if it is a slight
abnormality which has such a minimal effect on the individual that it would not be
expected to interfere with the individual's ability to work, irrespective of age,
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education or work experience.” McDaniel, 800 F.2d at 1031 (citing Brady, 724
F.2d 914). However, both McDaniel and Brady were cases where the plaintiff was
found not to have any severe impairment at all. See McDaniel, 800 F.2d 1026,
Brady 724 F. 2d 914. Thus, in both cases, the five-step sequential process was
ended at Step Two. See McDaniel, 800 F.2d 1026, Brady 724 F. 2d 914. In the
plaintiff’s case, however, the analysis did not end at Step Two. (Tr. at 13-16).
Rather, because the plaintiff was found to be suffering from at least one severe
impairment, the ALJ continued to Step Three. (Tr. at 16). The number or nature
of severe impairments found at Step Two is unimportant if the sequential analysis
continues because, in assessing the claimant’s RFC at Step Four, all of the
claimant’s impairments must be considered. The designation of an impairment as
“severe” at Step Two only has the effect of pushing the sequential analysis to the
next step.
Plaintiff also alleges that the ALJ did not follow the “slight abnormality
standard” when she determined that Plaintiff’s conditions, other than bipolar
disorder, were non-severe. (Doc. 11, p. 23). However, the ALJ looked at each of
the plaintiff’s other alleged impairments in turn and determined either that it “[had]
not been shown to have lasted at least twelve months during the relevant period
and [was] non-severe” or that the “impairment [constituted], at most, only a slight
abnormality that cannot reasonably be expected to produce more than minimal, if
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any, work-related limitations, and is non-severe.” (Tr. at 14). The ALJ carefully
explained her findings for each alleged impairment by reference to medical
evidence in the record. Having the reviewed the medical evidence, the court has
no reason to second-guess the ALJ’s application of the slight abnormality standard.
Accordingly, to the extent that Plaintiff seeks remand on that ground, such request
is declined.
Plaintiff additionally seeks remand on the ground that the ALJ violated
SSR 96-3p by failing to consider the effects of the plaintiff’s conditions which the
ALJ found to be non-severe. (Doc. 11, p. 23). SSR 96-3p is a policy interpretation
document that interprets 20 CFR 404.1502, 416.920, and 416.924 to clarify that:

Because a determination whether an impairment(s) is severe requires
an assessment of the functionally limiting effects of an impairment(s),
symptom-related limitations and restrictions must be considered at
this step of the sequential evaluation process, provided that the
individual has a medically determinable impairment(s) that could
reasonably be expected to produce the symptoms. If the adjudicator
finds that such symptoms cause a limitation or restriction having more
than a minimal effect on an individual’s ability to do basic work
activities, the adjudicator must find that the impairment(s) is severe
and proceed to the next step in the process even if the objective
medical evidence would not in itself establish that the impairment(s)
is severe. In addition, if, after completing development and
considering all of the evidence, the adjudicator is unable to determine
clearly the effect of an impairment(s) on the individual’s ability to do
basic work activities, the adjudicator must continue to follow the
sequential evaluation process until a determination or decision about
disability can be reached.

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1996 WL 374181 at *2 (July 2, 1996). The effect of this interpretation is that an
ALJ should in essence “err” on the side of allowing the five-step sequential
analysis to move forward. See id. In Ms. White’s case, the analysis did move on
to Step Three where the ALJ considered whether she had “an impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416. 925, and 416.926),” and found that she did not. (Tr. at 16).
Additionally, the court has reviewed the medical evidence and has found
substantial evidence to support the ALJ’s finding that Plaintiff’s limitations, other
than bipolar disorder, were non-severe. As an example, Plaintiff asserts that her
low back pain (“lumbago”) should have been considered severe.

Plaintiff

presented to the emergency room at the Gadsden Regional Medical Center
complaining of lower back pain on October 4, 2012, and October 11, 2012. (Tr. at
346-7, 505). Since then, Plaintiff has not complained of lower back pain again.
See, e.g., (Tr. at 14, 339-43, 427-8, 429-47, 471-504, 518-9, 520-49). Plaintiff
additionally had an x-ray on September 6, 2013, where it was noted that she had
minimal underlying rotary scoliosis that was possibly positional (i.e. an artifact of
the position in which the x-ray was taken). (Tr. at 420). Other than this, no
abnormality was noted. Id. There is nothing in the medical records to suggest that
Page 20 of 45

the plaintiff ever experienced back pain during the period she alleged it contributed
to her being disabled. Therefore, the ALJ properly assessed that this condition was
non-severe. The other ailments that the plaintiff alleges as “severe” present
similarly one-sided facts: she reported chronic “pain in limb” on only one occasion
(Tr. at 427) and her anemia was well-treated with medication. The court finds no
error in the ALJ’s assessment that these ailments are non-severe.
C. Opinion of the Consultative Examiner
As addressed previously, the ALJ must consider several factors in
determining the weight to be given to a medical opinion. 20 C.F.R. § 404.1527(c).
Different types of medical sources are entitled to differing weights. The opinion of
a treating physician, who has an ongoing relationship with the patient, is entitled to
the greatest weight.

20 C.F.R. § 404.1502.

A non-treating physician or

psychologist who has examined the patient but does not treat the patient is entitled
to less weight. Id. The least weight is given to a non-examining medical source,
who may provide an opinion based on a review of the record but who has not
examined the patient. Id. Even so, any medical source’s opinion can be rejected
where the evidence supports a contrary conclusion.

See, e.g., McCloud v.

Barnhart, 166 F. App’x 410, 418-19 (11th Cir. 2008).
It is difficult to tell on what grounds that the plaintiff challenges the ALJ’s
decision to afford “limited weight” to the opinion of the consultative examiner
Page 21 of 45

(“CE”) June Nichols because the brief on the matter contains over four pages of
block quotations and not a single sentence explaining to the court the relevance of
those quotations to the case at hand. To the extent that the plaintiff argues that the
ALJ had to accept the opinion of the CE simply because she was hired by the
Commissioner, this argument is without merit. The ALJ may reject the opinion of
any medical source, regardless of who hired her, if the opinion is not supported by
the evidence. See, e.g., McCloud v. Barnhart, 166 F. App’x 410, 418-19 (11th Cir.
2008).
Plaintiff also cites McClurkin v. Social Security Administration. In
McClurkin, “the Eleventh Circuit reversed the denial of benefits because the ALJ
failed to state with at least ‘some measure of clarity’ the grounds for his decision in
repudiating the opinion of an examining physician.” (Doc. 11, p. 26) (citing
McClurkin v. Soc. Sec. Admin., 625 F. App’x 960 (11th Cir. 2015). In that case
the ALJ did not did explicitly state the weight given to the opinion of a CE or
explain the reasons for giving weight to the other opinions in the case. Id. at 962.
The Eleventh Circuit determined that “when the ALJ fails to state with at least
some measure of clarity the grounds for his decision, we will decline to affirm
simply because some rationale might have supported the ALJ’s conclusion.” Id.
(citing Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).

Page 22 of 45

In Ms. White’s case, however, the ALJ clearly articulated the weight given
to the opinion of the CE and the reasons for it. She stated:

Limited weight is given to Dr. Nichols[’] opinion for various reasons.
As to her opinion regarding a guarded prognosis for significant
improvement because of the claimant’s past treatment and medication
without resolution of symptoms, the undersigned notes that any lack
of improvement was due to the fact that the claimant has not
consistently participated in treatment. Nor has she taken her
medications consistently either. In addition, Dr. Nichols’ diagnoses
are inconsistent with the CED treatment notes which show a much
higher level of functioning. There are other differing opinions
regarding the claimant’s actual diagnosis. While Dr. Nichols included
post-traumatic stress disorder as a diagnosis, the medical staff at
C.E.D. considered and disregarded this diagnosis (Exhibit 3F).

(Tr. at 22). Given that the ALJ clearly articulated the weight assigned to the
opinion and the reasons why the opinion was given that weight, the court finds that
the ALJ complied with the mandate of McClurkin.

The ALJ explained her

reasoning “with at least ‘some measure of clarity.’”
Plaintiff also points to a line of cases beginning with Wilder v. Chater, a
case out of the Seventh Circuit. (Doc. 11, p. 28) (citing Wilder v. Chater, 64 F.3d
335, 337-8). In Wilder, the Seventh Circuit remanded a denial of benefits because
the ALJ disregarded the opinion of a psychiatrist appointed by the Commissioner.
Wilder, 64 F.3d at 337. The court was skeptical of this decision because the
psychiatrist was the only medical opinion in the case which could establish the
Page 23 of 45

onset date of the plaintiff’s severe depression, a fact that was critical to the case.
Id. Wilder and its progeny have come to stand for the proposition that an ALJ may
not disregard the only medical opinion in a case simply because the ALJ finds that
the claimant’s current activities are incongruous with the opinion. See Wilder, 64
F.3d 335; Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565 (7th Cir. 2003); Haag v.
Barnhart, 333 F. Supp. 2d 1210, 1220 (N.D. Ala. 2004).
The facts of Wilder do not correspond to the plaintiff’s case. It is correct
that the ALJ afforded “limited weight” to the opinion of Dr. Nichols, the
consultative examiner.

(Tr. at 22).

However, Dr. Nichols was not the only

medical opinion in the case related to the plaintiff’s psychiatric health. (Tr. at 202). The ALJ considered Plaintiff’s treatment records from CED; the opinion of Dr.
Feist; the opinion of Ms. Ridley, a therapist at CED; the opinion of Dr. Nichols;
and the opinion of the state agency psychologist, Guendalina Ravello, Ph. D. Id.
The ALJ’s opinion was based on multiple medical opinions and the medical
records, rather than a hunch as was the issue in Wilder.
Additionally, the court has reviewed the medical records and found
substantial evidence to support the ALJ’s decision to afford only limited weight to
the opinion of Dr. Nichols. At the evaluation, Dr. Nichols described the plaintiff
as “neat and clean,” with normal and clear speech, but having a depressed mood
and decreased appetite and energy. She found the plaintiff to follow a clear stream
Page 24 of 45

of consciousness, and to be “oriented to person, place, time and situation.” (Tr. at
417). She also found Plaintiff’s “speed of mental processing adequate,” memory
functions to be “grossly intact,” “general fund of knowledge to be adequate,”
thought processes to be “within normal limits,” and judgment and insight to be
good.

Id.

These observations are inconsistent with the extremely severe

limitations and impairment that Dr. Nichols opined existed. See (Tr. at 415-8).
Accordingly, the ALJ’s assessment of the weight given to the consultative
examiner’s opinion was not erroneous.
D. Ability to Perform Past Work
Ms. White asserts that the ALJ’s determination that she could perform her
past work as a poultry eviscerator and a poultry trimmer was not supported by
substantial evidence and was not in accordance with proper legal standards.
(Doc. 11, p. 30). She argues that the ALJ had the duty to develop the record as to
the physical and mental demands of her past work so as to allow a comparison of
Ms. White’s current limitations. Id. The Commissioner replies that the ALJ
properly relied upon the testimony of the Vocational Expert (VE) in response to a
hypothetical that incorporated all of the plaintiff’s limitations. (Doc. 16, p. 29-31).
Further, if the plaintiff believed that the record was lacking, she was represented by
an attorney at the hearing who could and should have elicited testimony to carry

Page 25 of 45

her burden of proving she was unable to perform her past relevant work. Id. The
ALJ specifically found:

The claimant is capable of performing past work as a poultry
eviscerator, DOT Code 525.687-074, light, unskilled, SVP of 2, and a
poultry trimmer, DOT Code 781.687-070, light, unskilled, SVP of 2.
Neither requires the performance of work-related activities precluded
by the claimant’s residual functional capacity (20 CFR 416.965).

(Tr. at 23). In addition to the past work, the ALJ found that the plaintiff could
perform the jobs of cleaner, hand packer, and laundry worker. (Tr. at 24).
In a disability determination, the burden is on the claimant to establish that
she is no longer able to perform her past work. Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987). This burden is a heavy one. Id. Once Plaintiff carries this
burden, the burden switches to the Commissioner to show other jobs in the national
economy that Plaintiff can perform. Id. In establishing the ability of a plaintiff to
perform any type of work, past or otherwise, the ALJ can rely on either the “Grids”
or the testimony of a Vocational Expert. Jones v. Apfel, 190 F.3d 1224, 1229
(11th Cir. 1999). Where the ALJ poses a hypothetical to the VE that encompasses
all of the claimant’s limitations, the testimony of the VE is substantial evidence of
the claimant’s ability or inability to perform work. Id.; Arnold v. Comm’r Soc.
Sec. Admin., 724 F. App’x. 772, 781 (11th Cir. 2018).

Page 26 of 45

The ALJ’s determination that the plaintiff could perform her past work is
supported by substantial evidence and is in accordance with proper legal standards.
The ALJ posed a hypothetical question to the VE that encompassed all of the
plaintiff’s limitations, and the VE confirmed that her past work was available to
Ms. White. Additionally, the ALJ posed another hypothetical in which such
hypothetical person was limited to a light level of exertion.

Still, the VE

confirmed that Plaintiff’s past work as a poultry eviscerator and poultry trimmer
was available. The relevant testimony given by the VE was as follows:

[ALJ]: All right. Please identify by titles, both exertional, skill level,
and a DOT number the work that was performed over the last 15 years
as we just discussed.
[VE]: Okay. Poultry eviscerator, 525.687-074, light, unskilled, SVP of
2. And trimmer, 781.687-070, light, unskilled, SVP of 2.
…
[ALJ]: If we have an individual of the claimant’s same age, education,
and past work history who, let’s see, who has no exertional
limitations, who can understand, remember, and carry out simple
work instructions, but not those that are [INAUDIBLE] or complex.
Can adjust to workplace changes that are infrequent and introduced
gradually and occasionally can interact with the general public,
frequently interact with co-workers and supervisors and would be
capable of sustaining attention, concentration for at least two hour
blocks at [a] time with normal breaks in an 8 hour day. First would
that individual be able to perform any of the claimant’s past work?
[VE]: Yes, Your Honor. Both.

Page 27 of 45

[ALJ]: Okay. In addition to that past work, is there other work that
individual would be capable of performing?
[VE]: Yes, Your Honor. Cleaner, 358.687-010, medium, unskilled,
SVP of 2, 3,200 in Alabama, 275,000 in the U.S. Hand packager,
920.587-018, medium, unskilled, SVP of 2, 4,200 in Alabama,
333,000 in the U.S. Laundry worker, 361.684-014, medium, unskilled,
SVP of 2, 1,000 in Alabama, 67,800 in the U.S.
[ALJ]: Okay if I continue with that same individual but now note that
they are—have some exertional limitations that limits her to work at
the light level of exertion based upon the Social Security Regulations.
No frequent climbing of ramps and stairs. Occasional climbing of
ropes, ladders, or scaffolds. Can frequently balance, stoop, kneel,
crouch and crawl, constantly reach, handle, finger, and feel, First,
would that individual—and again we’re adding onto the mental
restrictions from hypothetical one, so—
[VE]: Right.
[ALJ]: Would that individual still be able to perform the claimant’s
past work?
[VE]: Yes, Your Honor.
[ALJ] And is there other work at the light level that individual would
be capable of performing as well?
[VE]:Yes. Your Honor. Marker, 209.587-034, light, unskilled, SVP of
2, 4,000 in Alabama, 320,000 in the U.S. Assembler, 706.684-022,
light, unskilled, SVP of 2, 2,000 in Alabama, 235,000 in the U.S.
Inspector and hand packager, 559.687-014, light, unskilled, SVP of 2,
2,400 in Alabama, 164,000 in the U.S.

(Tr. at 56-8). The hypotheticals posed by the ALJ included all of the plaintiff’s
limitations that were reflected in her RFC; therefore, the ALJ properly relied upon
Page 28 of 45

the VE’s testimony in determining that the plaintiff had the ability to perform past
work. See (Tr. at 17-8). Additionally, any error in determining that the plaintiff
could perform past work is harmless, because the VE and the ALJ determined that
there were other jobs in the national economy that the plaintiff could perform. See
(Tr. at 57-8). The plaintiff does not challenge in this appeal the finding that she
could perform other jobs.
E. Claimant Credibility
The Eleventh Circuit established a standard to direct ALJs in evaluating a
claimant’s subjective allegations of disabling pain and other symptoms. Subjective
testimony of pain and other symptoms may establish the presence of a disabling
impairment if it is supported by medical evidence. See Foote v. Chater, 67 F.3d
1553, 1561 (11th Cir. 1995). To establish disability based upon pain and other
subjective symptoms, the “standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the severity of
the alleged pain arising from that condition or (3) that the objectively determined
medical condition is of such a severity that it can be reasonably expected to give
rise to the alleged pain.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)); see also Landry v.
Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986).

Page 29 of 45

The ALJ is permitted to discredit the claimant’s subjective testimony of pain
and other symptoms if she articulates explicit and adequate reasons for doing so.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). Under Social Security
Ruling (“SSR”) 96-7p, 3

In determining the credibility of the individual’s statements, the
adjudicator must consider the entire case record, including the
objective medical evidence, the individual’s own statements about
symptoms, statements and other information provided by treating or
examining physicians or psychologists and other persons about the
symptoms and how they affect the individual, and any other relevant
evidence in the case record. An individual’s statements about the
intensity and persistence of pain or other symptoms or about the effect
the symptoms have on his or her ability to work may not be
disregarded solely because they are not substantiated by objective
medical evidence.
It is not sufficient for the adjudicator to make a single, conclusory
statement that “the individual’s allegations have been considered” or
that “the allegations are (or are not) credible.” It is also not enough
for the adjudicator simply to recite the factors that are described in the
regulations for evaluating symptoms. The determination or decision
must contain specific reasons for the finding on credibility, supported
by the evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the
reasons for that weight.

SSR 96-7p, 61 FR 34483-01 (Effective July 2, 1996) (superseded by SSR 16-3p,
2017 WL 5180304, at *10 (eff. March 26, 2016)). Although the Eleventh Circuit
3

SSR 96-7p is applicable to this case as it was in effect at the time of the ALJ’s
determination on August 15, 2016. SSR 96-7p was superseded by SSR 16-3p, effective
March 26, 2016; however, it does not apply retroactively. See Hargress v. Soc. Sec. Admin.,
Comm'r, 883 F.3d 1302, 1308 (11th Cir. 2018) (“SSR 16-3p applies only prospectively…”).
Page 30 of 45

does not require explicit findings as to credibility, “‘the implication must be
obvious to the reviewing court.’” Dyer, 395 F.3d at 1210 (quoting Foote, 67 F.3d
at 1562). “[P]articular phrases or formulations” do not have to be cited in an
ALJ’s credibility determination, but it cannot be a “broad rejection” which is “not
enough to enable [the district court or this Court] to conclude that [the ALJ]
considered her medical condition as a whole.” Id.
Here, the plaintiff met Step 1 of the standard by establishing that she had a
medically determinable impairment.

See Dyer, 395 at 1210.

The plaintiff

established that she had one severe impairment—bipolar disorder—and multiple
non-severe impairments, including anemia and bleeding.

(Tr. at 13-4, 18).

However, the ALJ found that the plaintiff did not meet the second or third steps of
the pain standard. (Tr. at 18); see Dyer, 395 at 1210. The ALJ found that the
plaintiff’s statements about the limiting effects of her conditions could not be fully
credited because the medical evidence presented in the case did not support “the
intensity, persistence, and limiting effects” described by the plaintiff. (Tr. at 18).
Additionally, the ALJ believed that the plaintiff’s medically determinable
impairments were not severe enough to give rise to the plaintiff’s alleged
symptoms. Id. The ALJ further explained,

The claimant alleges multiple physical impairments unsupported by
the medical evidence. Her allegations are extremely exaggerated and
unsupported by the objective medical evidence of record. At the
Page 31 of 45

hearing, she alleged significant limitations in lifting, sitting, standing,
and walking due to physical limitations; however, her physical
examinations showed little abnormalities. In addition, she alleged
problems using her right arm, and she alleged a daily pain of an eight
(8). However, she consistently reported zero (0) pain levels and had
only sought treatment on one (1) occasion for her right arm. As
already explained… above, the objective medical evidence does not
support her allegations of multiple physical impairments that cause
significant limitations.
…
Turning to the claimant’s mental impairments, the undersigned notes
that the claimant filed her application for supplemental security
income on April 18, 2013. Notably, the claimant’s file has medical
records going back to 2005; however, there is no evidence of any
mental impairment prior to that time [of the filing of the application].
Notably, however, the claimant sought treatment from Dr. Odjegba
with complaints of anxiety and depression in May 2013, shortly after
filing her application, and again for follow-up on August 30, 2013.
The claimant has no further mental health treatment and did not report
any more depression, anxiety, or other mental issues to Dr. Odjegba
thereafter. Indeed, it was not until a year later in July 2014 that she
sought further mental health treatment. Interestingly, the claimant
contacted CED for treatment right before obtaining representation for
her disability case. The claimant contacted CED in July 2014 and
scheduled her intake appointment for September 29, 2014. Her
Appointment of Representative form at Exhibit 5B is dated
August 14, 2014 and her first session for intake evaluation[] was on
September 29, 2014. On her intake form the claimant noted she had
not had any mental health treatment since 2004 or 2006. The claimant
was diagnosed with bipolar disorder at CED Mental Health Center.
She attended therapy on two (2) occasions, October 23, 2014 and
November 19, 2014. She canceled her December 9, 2014
appointment, and it was rescheduled for January 29, 2015, but there is
no evidence she returned for that visit. Her next therapy appointment
was on March 3, 2015. At the time of the hearing, the claimant had
been seen on three occasions in 2015; on March 3, 2015, March 11,
2015, and April 2015 (Exhibits 7F, 9F, and 15F).
Page 32 of 45

The claimant’s main complaint has been the inability to be around
people and mood swings. She has not had a suicide attempt since she
was a child. Her recent therapy records show symptoms of depression
(crying, sleeping, isolation); anxiety (chest tightness); and mania
(spending, talking, and cleaning). However, there are significant gaps
in treatment and she has cancelled or failed to show up for counseling.
In addition, there have been significant periods of time since the
alleged onset date during which the claimant has not taken any
medications for those symptoms. The claimant provided a pharmacy
printout and it does not show consistent use of any psychotropic
medications. She reported to Dr. Odjegba on August 26, 2014 she
was not using her bupropion that he prescribed (Exhibits 7F, 9F, and
15F). Interestingly, at the hearing, the claimant alleged she is unable
to watch a two-hour (2-hour) movie; however, she noted in her
Function Report that she watches the ID channel all day long and does
nothing else because she has to watch it (Exhibit 5E). The claimant
also testified that she enjoys reading and reads a lot.
Based on the evidence, the evidence does not support the claimant’s
statements concerning the intensity, persistence and limiting effects of
her bipolar disorder. While it is reasonable that the claimant may
experience some symptoms that would cause some mental limitations,
the objective medical evidence does not support a complete inability
to work.

(Tr. at 19-20).
The court finds that there is substantial evidence to support the ALJ’s
finding that the plaintiff is not credible. Plaintiff’s medical records support
that she has a degree of mental limitation due to bipolar disorder. (Tr. at
429-447, 550, 551-558). However, Plaintiff has only sporadically reported
any physical ailments and her reporting of those is incongruous with the
physical limitations she alleged during her disability determination. See,
Page 33 of 45

e.g., (Tr. at 339-413, 419-20). The ALJ stated adequate reasons why she
disregarded the plaintiff’s testimony regarding her subjective symptoms and
did so with the requisite degree of specificity. See Cannon v. Bowen, 858
F.2d 1541, 1545 (11th Cir. 1988). The record need not be replete with
evidence that would support a finding that the plaintiff was not credible in
order for this court to affirm the ALJ. Where, as here, the ALJ specifically
finds that the plaintiff is not credible and there is substantial evidence to
support that determination, the court will not intervene. See Mitchell v.
Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).
F. Listing 12.04 and 12.06
The ALJ found that the plaintiff did not meet the criteria for Listing 12.04 4
or 12.065. The burden of proving that she meets or equals a Listing is on the
4

12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or
partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole
psychic life; it generally involves either depression or elation. The required level of severity for
these disorders is met when the requirements in both A and B are satisfied, or when the
requirements in C are satisfied.
A. Medically documented persistence, either continuous or intermittent, of one of the
following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
Page 34 of 45

a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful
consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking;
or
3. Bipolar syndrome with a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive syndromes (and currently
characterized by either or both syndromes);
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
OR
C. Medically 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, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
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. Current history of 1 or more years' inability to function outside a highly
supportive living arrangement, with an indication of continued need for such an
arrangement.
20 C.F.R. § 404, subpart p, appendix 1 (Effective: August 12, 2015 to May 23, 2016).
5

12.06 Anxiety Related Disorders: In these disorders anxiety is either the predominant
disturbance or it is experienced if the individual attempts to master symptoms; for example,
confronting the dreaded object or situation in a phobic disorder or resisting the obsessions or
compulsions in obsessive compulsive disorders. The required level of severity for these disorders
is met when the requirements in both A and B are satisfied, or when the requirements in both A
and C are satisfied.
A. Medically documented findings of at least one of the following:
1. Generalized persistent anxiety accompanied by three out of four of the
following signs or symptoms:
a. Motor tension; or
b. Autonomic hyperactivity; or
c. Apprehensive expectation; or
d. Vigilance and scanning;
Page 35 of 45

plaintiff. Davenport v. Astrue, 403 F. App’x 352, 353 (11th Cir. 2010) (citing
Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). In order to meet a Listing,
a plaintiff must meet all of the specific criteria for that listing. Sullivan v. Zebley,
493 U.S. 521, 530 (1990). It is not sufficient for Plaintiff to demonstrate that she
has an ailment that manifests only a few or even most of the criteria, even if the
ailment manifests those criteria in an especially severe way. Id. Plaintiff must
carry the burden by presenting evidence of a diagnosis of a condition covered by
the Listings and a treatment history demonstrating that the durational requirements
are met. Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). If Plaintiff is
instead asserting that she has an ailment which equals a Listing, she must show that

or
2. A persistent irrational fear of a specific object, activity, or situation which
results in a compelling desire to avoid the dreaded object, activity, or situation; or
3. Recurrent severe panic attacks manifested by a sudden unpredictable onset of
intense apprehension, fear, terror and sense of impending doom occurring on the
average of at least once a week; or
4. Recurrent obsessions or compulsions which are a source of marked distress; or
5. Recurrent and intrusive recollections of a traumatic experience, which are a
source of marked distress;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
OR
C. Resulting in complete inability to function independently outside the area of one's
home.
20 C.F.R. § 404, subpart p, appendix 1 (Effective: August 12, 2015 to May 23, 2016).
Page 36 of 45

the ailment(s), either singularly or in combination, equal the Listing in terms of
severity. Id.
The ALJ found that the plaintiff did not meet the criteria for Listing 12.04.
(Tr. at 16). Though the ALJ did not address it specifically, if Plaintiff does not
meet the criteria for Listing 12.04, she also cannot meet the criteria of Listing
12.06. Compare 20 C.F.R. § 404, Subpart P, Appendix 1 (Effective: August 12,
2015 to May 23, 2016) with 20 C.F.R. § 404, Subpart P, Appendix 1 (Effective:
August 12, 2015 to May 23, 2016). The ALJ considered whether the plaintiff met
the Paragraph B requirements but found that she had, at most, moderate difficulties
in social functioning and in maintaining concentration, persistence, or pace, and
had not had any episodes of decompensation of extended duration. (Tr. at 16-7).
Similarly the ALJ found that the plaintiff did not meet the Paragraph C criteria
because she had not experienced repeated episodes of decompensation, she did not
demonstrate residual disease process which would be thought to result in episodes
of decompensation with a minimal increase in mental demand, and she had not
shown the inability to function outside of a highly supportive living arrangement.
Id. at 17.
The ALJ noted that the plaintiff could independently perform personal care
tasks and could prepare her own simple meals. (Tr. at 17). Additionally, the
plaintiff could maintain her home through cleaning, laundry, and household
Page 37 of 45

repairs. Id. While the plaintiff reported that she did not like being in public or in
crowds of people, she did enjoy being around her children and her grandchildren.
Id. Similarly, she was able to attend church services once per month and shop for
groceries monthly with her father. Id. She also managed her own finances and
bank accounts. Id. She also reported the ability to handle and respond to verbal
instruction.

(Tr. at 17).

The court verified these findings with the medical

documentation in the record. Based upon the plaintiff’s reporting of her activities
and the medical evidence, it appears that the plaintiff was able to function largely
autonomously though she had a degree of mental impairment.
As noted above, the scope of the court’s review is narrow. This court is not
authorized to reweigh evidence or reevaluate the factual findings of the ALJ. The
determination of whether a plaintiff meets the criteria of a Listing is a legal
conclusion that this court can and does review with close scrutiny; however, this
determination requires careful review and weighing of medical evidence and
reports. Where, as here, the ALJ has made clear that she considered the facts,
compared them to the statutory requirements, and determined that the plaintiff did
not meet the criteria in the Listings, the court will not intervene. Additionally, the
plaintiff has failed to present any specific evidence to the court that demonstrates
that she meets the criteria for a Listing, and the court’s review of the medical
evidence has failed to find any evidence that demonstrates that she meets the
Page 38 of 45

criteria. It is clear that Plaintiff has difficulties in mental functioning; however, a
review of the record demonstrates that there is substantial evidence to support the
ALJ’s finding of moderate, rather than marked, difficulties.
G. Appeals Council and New Evidence
As a general matter, “a claimant may present evidence at each stage of the
administrative process.” Hargress, 874 F.3d at 1290 (citing Ingram v. Comm’r of
Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007) and 20 C.F.R. §
404.900(b)).

“The Appeals Council must consider new, material, and

chronologically relevant evidence and must review the case if ‘the administrative
law judge’s action, findings, or conclusion is contrary to the weight of the evidence
currently of record.’” Ingram, 496 F.3d at 1261; 20 C.F.R. § 404.900(b). Only “if
a reasonable possibility exists that the evidence would change the administrative
result” may evidence be considered material. Hargress, 874 F.3d at 1291 (citing
Washington v. Soc. Sec. Admin., 806 F.3d 1317, 1321 (11th Cir. 2015).
The Eleventh Circuit has held that “[n]ew evidence is chronologically
relevant if it ‘relates to the period on or before the date of the [ALJ’s] hearing
decision.”

Hargress, 874 F.3d at 1291 (quoting 20 C.F.R. §§ 404.970(b),

416.1470(b)). “Evidence of deterioration of a previously considered condition
may subsequently entitle a claimant to benefit from a new application, but it is not
probative of whether the claimant was disabled during the relevant time period
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under review.” Ashley v. Comm’r, Soc. Sec. Admin., 707 F. App’x 939, 944 (11th
Cir. 2017) (citing Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999).
However, in Hargress, the Eleventh Circuit noted “‘that medical opinions based on
treatment occurring after the date of the ALJ's decision may be chronologically
relevant.’” 874 F.3d at 1291 (citing Washington, 806 F.3d at 1322). The Court
went on to explain that

In Washington, the claimant submitted to the Appeals Council a
psychologist’s evaluation and accompanying opinion about the degree
of the claimant's mental limitations, which were prepared seven
months after the ALJ’s decision. Id. at 1319-20. This Court
concluded that the psychologist’s materials were chronologically
relevant because: (1) the claimant described his mental symptoms
during the relevant period to the psychologist, (2) the psychologist
had reviewed the claimant’s mental health treatment records from that
period, and (3) there was no evidence of the claimant’s mental decline
since the ALJ’s decision. Id. at 1319, 1322-23 (limiting its holding to
“the specific circumstances of this case”).

Id. The Court did not “address Hargress’s argument that the denial of benefits was
erroneous when th[e] new evidence [was] considered.” Id. at 1291-92.
Ms. White’s assertion that the Appeals Council failed to consider the new
evidence may be addressed using the same analysis that was used in Mitchell v.
Commissioner, Social Security Administration, 771 F.3d 780 (11th Cir. 2014).
The Appeals Council in Mitchell “denied [the claimant’s] request for review,
explaining that it had considered [his] reasons for disagreeing with the ALJ’s
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decision as well as his additional evidence,” and determined that the new evidence
did not provide a basis for changing the ALJ’s decision. Id. at 782. The Appeals
Council in Mitchell did not engage in a discussion of the new evidence. Id. The
Eleventh Circuit held that “the Appeals Council is not required to explain its
rationale when denying a request for review.” Id. at 785.
Like the Appeals Council in Mitchell, the Appeals Council in this case
denied the plaintiff’s request for review. The Appeals Council stated, “We have
found no reason under our rules to review the Administrative Law Judge’s
decision. Therefore, we have denied your request for review.” (Tr. at 1). They
further elaborate that under the rules, the Appeals Council will review a case if
they “receive new and material evidence and the decision is contrary to the weight
of all the evidence now in the record.” (Tr. at 1). This court has no reason to
question whether the Appeals Council it applied the rules, reviewed the evidence,
and did not find grounds to review the case. Accordingly, the claimant’s argument
that the Appeals Council failed to consider the new evidence is without merit.
H. Side Effects of Claimants Medication
Ms. White argues that the ALJ failed to adequately consider the side effects
of her medication. In Walker v. Comm’r of Soc. Sec., the Eleventh Circuit Court
of Appeals explained that,

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[i]n determining whether a claimant’s impairments limit her ability
to work, the ALJ considers the claimant’s subjective symptoms,
which includes the effectiveness and side effects of any
medications taken for those symptoms. 20 C.F.R.
§§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv). We have concluded that,
under certain circumstances, an ALJ’s duty to develop a full record
can include investigating the side effects of medications. Compare
Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981)
(concluding that ALJ failed to fully develop record where pro se
claimant testified that she took eight different prescription
medications and was “kind of zonked most of the time” and ALJ
failed to either elicit testimony or make findings regarding effect of
medications on her ability to work), with Passopulos v. Sullivan,
976 F.2d 642, 648 (11th Cir. 1992) (concluding that ALJ did not
fail to develop record where claimant did not present evidence he
was taking medication that caused side effects), and Cherry v.
Heckler, 760 F.2d 1186, 1191 n. 7 (11th Cir. 1985) (concluding the
Secretary, upon reopening, did not have duty to further investigate
side effects of counseled claimant’s medications where claimant
did not allege side effects contributed to her disability and stated
only that her medication made her drowsy).
However, the ALJ’s obligation to develop the record does not
relieve the claimant of the burden of proving she is disabled.
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Thus,
the claimant must introduce evidence supporting her claim that her
symptoms (including any medication side effects) make her unable
to work. See id.

404 F. App’x 362, 366 (11th Cir. 2010). In Walker, the claimant testified about
her side effects, indicating that her only side effects “were dizziness and
headaches.” Id. In his opinion, “[t]he ALJ noted this testimony in his decision.”
Id.

However, Walker had complained about headaches and dizziness as

symptoms, not side effects, to her doctors. Id. at 367. The Eleventh Circuit held
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that “the ALJ was not under a duty to elicit further information about Walker’s
medication side effects.” Id.
Furthermore, “[w]here an unrepresented claimant’s hearing testimony raises
a question about the side effects of medications, we have concluded that the ALJ
has a special duty to elicit additional testimony or otherwise make a finding about
such side effects.” Colon ex rel. Colon v. Comm’r of Soc. Sec., 411 F. App’x 236,
238 (11th Cir. 2011). However, “where a represented claimant makes a similar
statement, but does not otherwise allege that the side effects contribute to the
alleged disability, we have determined that the ALJ does not err in failing ‘to
inquire further into possible side effects.’” Id. (quoting Cherry v. Heckler, 760
F.2d 1186, 1191 n.7 (11th Cir. 1985). In Colon, the Eleventh Circuit found that

[t]he ALJ noted the obligation to consider the side effects of Mr.
Colon’s medications when assessing his subjective complaints and
summarized the limited evidence in the record about the side
effects. While Mr. Colon had reported some side effects from his
medications in a disability report and his lawyer had given the ALJ
a list of Mr. Colon’s medications and their side effects, Mr. Colon
did not mention his medication side effects in response to the
ALJ’s questions about why he could not return to work. Because
Mr. Colon was represented at his hearing, the ALJ was not
required to inquire further into Mr. Colon’s alleged side effects;
and Colon has not shown that the ALJ applied incorrect legal
standards. See [Cherry, 760 F.2d at 1191 n.7].

Id. The Eleventh Circuit held that “[s]ubstantial evidence support[ed] the
ALJ’s decision to discredit Mr. Colon’s complaints as they related to
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medication side effects: none of Mr. Colon’s doctors reported any side
effects from his medications, and he did not complain to them of any side
effects.” Id.
On a Physical Capacities Form dated May 28, 2015, Dr. Odjegba stated that
the side effects of the plaintiff’s medication were drowsiness and nausea and
vomiting. (Tr. at 560). However, Plaintiff never reported these symptoms to
Dr. Odjegba during her visits. See, e.g., (Tr. at 339-343, 427-8, 471-504, 518-9,
520-49). Additionally, the plaintiff testified before the ALJ that her medication
caused her to feel dizzy and have to lie down. (Tr. at 42). However, this also was
never reported to her doctors. See, e.g., (Tr. at 339-343, 427-8, 471-504, 518-9,
520-49). The ALJ’s determination that the side effects of the plaintiff’s medication
were not a significant issue is supported by substantial evidence when, as in this
case, the plaintiff never complained of the side effects and the record does not
demonstrate that the doctors who treated the plaintiff had concerns about the side
effects of medication. See Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir.
1990). Therefore, Ms. White’s argument is without merit.

IV.

Conclusion

Upon review of the administrative record, and considering all of Ms.
White’s arguments, the court finds the Commissioner’s decision is supported by
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substantial evidence and is in accord with the applicable law. A separate order will
be entered affirming the determination of the Commissioner and dismissing this
case with prejudice.
DONE this 11th day of September, 2018.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

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