Blackmon v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION Signed by Judge L Scott Coogler on 08/07/2013. (MSN)

FILED
2013 Aug-07 PM 03:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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

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) CIVIL ACTION NO. 7:11-cv-3639-LSC
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MEMORANDUM OPINION
The plaintiff, Carolyn Blackmon, brings this action pursuant to the
provisions of section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g),
seeking judicial review of a final adverse decision of the Commissioner of the Social
Security Administration (the Commissioner) denying her application for Social
Security Benefits. Plaintiff timely pursued and exhausted her administrative remedies
available before the Commissioner. Accordingly, this case is now ripe for judicial
review under 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g).

STANDARD OF REVIEW
The sole function of this court is to determine whether the decision of
the Commissioner is supported by substantial evidence and whether proper legal
standards were applied. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). To that end this court “must scrutinize the record as a whole to determine if
the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth, at 1239 (citations omitted). Substantial evidence is “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Bloodsworth, at 1239.
STATUTORY AND REGULATORY FRAMEWORK
In order to qualify for disability benefits and to establish his entitlement
for a period of disability, a claimant must be disabled. The Act defines disabled as the
“inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
twelve months . . . .” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). For the purposes
of establishing entitlement to disability benefits, “physical or mental impairment” is
defined as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical
and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
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In determining whether a claimant is disabled, Social Security
regulations outline a five-step sequential process. 20 C.F.R. § 404.1520 (a)-(f). The
Commissioner must determine in sequence:
(1)

whether the claimant is currently employed;

(2)

whether she has a severe impairment;

(3)

whether her impairment meets or equals one listed by the
Secretary;

(4)

whether the claimant can perform her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); accord McDaniel v. Bowen, 800
F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied Steps One and
Two, she will automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her past work,
the burden shifts to the Secretary to show that the claimant can perform some other
job.” Pope, at 477; accord Foot v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
In the instant case, the ALJ determined the plaintiff met the first two
tests, but concluded she did not suffer from a listed impairment. The ALJ found the
plaintiff was able to perform her past relevant work, and accordingly found her not
disabled.

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DISCUSSION
The plaintiff applied for disability on March 31, 2008. Subsequently,
her onset date was amended to June 20, 2009, because she continued to work up until
that time. Plaintiff was 34 years old on her amended onset date and alleges she is
disabled due to a psychotic disorder. She does not claim to have any severe physical
impairment. Record 27.
The record contains only four treatment notes for the plaintiff’s mental
impairment. She was seen on April 8, 2008, at the Indian Rivers Mental Health
Center (“IRMHC”) for an intake evaluation by a social worker. The plaintiff reported
depressive symptoms and problems with paranoia. Record 253. She also reported that
she saw dead people, and heard people talking she was not able to see. Id. She was
diagnosed with a psychotic disorder, not otherwise specified. She was assessed a
GAF score of 60.1 Id.
On April 14, 2008, the plaintiff returned to IRMHC for a psychiatric
evaluation. Her diagnosis was psychotic disorder, not otherwise specified. Record
290. She was prescribed Geodon, an antipsychotic medication. Id.
1

The Global Assessment of Functioning (GAF) Scale is used to report an
individual’s overall level of functioning. Diagnostic and Statistical Manual of Mental
Disorders 32 (4th Edition, Text Revision) (“DSM-IV-TR”). A rating of 51-60 reflects:
“Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers.)” DSM-IV-TR at 34 (emphasis in
original).
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On May 21, 2008, the plaintiff returned to IRMHC reporting that her
medication had reduced her symptoms somewhat, but not entirely. Record 286. At
this visit she presented with a depressed mood, and Lexapro was added to her
prescriptions. Id. She was diagnosed with a psychotic disorder, not otherwise
specified and a depressive disorder, not otherwise specified. Id.
The plaintiff’s final visit to IRMHC was November 12, 2008. It was
noted she had not been seen since May. Record 285. The plaintiff reported to her
counselor she was “having auditory/visual hallucinations [and] would like to restart
meds now. States meds worked well for her when she was taking them.” Id. The
note indicates the plaintiff’s psychiatrist agreed to renew her medications, but
indicated they would not be refilled again if she did not keep her appointment for a
psychiatric evaluation on November 20, 2008. Id. There are no further treatment
notes for the plaintiffs mental impairments in the record, indicating she did not keep
her appointment with her psychiatrist.
The plaintiff was referred to Dr. Gagg by the Social Security
Administration for psychological evaluation on May 31, 2008. Dr. Gagg’s report
documents the plaintiffs lack of cooperation and malingering during the evaluation.
Dr. Gagg noted the plaintiff reported that she had never worked even though
documentation showed that she had been employed. Record 263. (The plaintiff’s
earning records show that she earned $13,489 in 2008. Record 144.) Dr. Gagg noted
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the plaintiff had been diagnosed with a psychotic disorder at IRMHC. However, he
commented on the lack of corroboration of plaintiff’s reports by family or other
sources:
It is noteworthy, however, that (apparently) all the diagnostic
impressions were based on the client’s reports of symptomatology, i.e.
the documentation is replete with statements where the claimant reports
symptoms. However, there is no objective information in the report
such as might have been gathered from collateral sources.
Record 264. Dr. Gagg also commented on the plaintiff’s lack of cooperation during
his evaluation:
She was poised, but her cooperation with the evaluation was
questionable. By ... way of explanation, she did not appear motivated to
respond to questioning and, at several points during the interview, she
appeared to be giving intentionally wrong answers.
Id.
In addition to plaintiffs lack of cooperation, Dr. Gagg observed the
plaintiff “gave answers that were noted to be intentionally wrong and untenable.” Id.
Because of the plaintiff’s apparent malingering, Dr. Gagg administered testing:
In light of her evident malingering, she was administered the M-FAST,
an instrument specifically intended to screen for malingering. It is
noteworthy that the result of said malingering screening was strongly
indicative of malingering. In fact, the results are consistent with very
blatant malingering.
Id.

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In spite of the plaintiff’s lack of cooperation and malingering behavior,
Dr. Gagg observed the plaintiff’s “thought productivity was within normal limits and
there was no evidence of delusional thought content.” Record 265. Regarding the
plaintiff’s alleged hallucinations, Dr. Gagg remarked as follows:
[I]t is noteworthy that [plaintiff] endorsed perceptual anomalies in all
five modalities, which would be extremely rare, even in the most
psychotic of individuals, which she clearly was not. Further, she
responded positively to arbitrary symptoms made up by the examiner,
which is further indication of malingering.
Id. Dr. Gagg found the plaintiff’s mood “appeared normal.” Id.
In making his diagnosis, Dr. Gagg remarked upon the difficulty created
by the plaintiff’s malingering:
[T]here is some possibility of psychotic illness with this individual.
However, given her malingering, it is difficult to tease out any legitimate
psychiatric symptomatology, if indeed there are any such symptoms.
Given her previous diagnosis of Psychotic Disorder, NOS (although as
previously mentioned it was largely based on her self report) a diagnosis
of Psychotic Disorder, NOS, by history seems appropriate.
Id. Dr. Gagg also included a formal diagnosis of Malingering. Id.
In his summary and conclusion, Dr. Gagg opined the plaintiff “was
attempting to present herself as severely psychiatrically disturbed, which is very
questionable, based on the quality of her responses, some of which were actually
ludicrous.” Id. Dr. Gagg noted the plaintiff’s malingering made it difficult to assess
whether she would be able to work:

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Based on this degree of malingering, it is also very difficult to assess
whether or not she is appropriate for gainful employment. I simply
cannot determine whether or not she will be able to manage the rigors of
gainful employment, although I have no reason to believe that she would
not be able to. She evidently has worked in the past, and if indeed she is
receiving treatment for any possible psychiatric symptomatology
(treatment that she states is effective), I see no reason why she would
not be able to work currently.
Record 265-66. Dr. Gagg concluded his summary as follows:
Nevertheless, she does not appear to be that psychiatrically unstable at
this time and, in sum, she appears to be trying to present herself as more
psychiatrically disturbed than likely is the case.
Record 266.
The only other psychological evaluation in the record was on May 11,
2009, by Dr. Blotcky, to whom the plaintiff was referred by her attorney. Dr.
Blotcky’s report of the mental status portion of his exam follows in its entirety:
Ms. Blackman was appropriately attired and fairly well groomed for this
evaluation. She was wearing casual clothes that were clean and neat.
She did not have on makeup or jewelry. Ms. Blackman has a problem
with obesity, she voiced no somatic concerns. Ms. Blackman
demonstrated logical and orderly thinking. Her thought processes were
extremely concrete and simplistic. Her speech was sparse. Her abstract
thinking was poor. Her memory functioning was vague. It is clear to
me that Ms. Blackman has a psychotic illness. She admits to auditory
hallucinations and paranoia. During this exam, she was aloof, sullen,
and suspicious. Ms. Blackman’s judgment is deficient. Her insight is
minimal.
Record 293-94. Dr. Blotcky also administered IQ testing. He reported the following
scores:

8

Verbal

Performance

Full Scale

48

47

45

Record 294.
Doctor Blotcky diagnosed the plaintiff as having a psychotic disorder,
not otherwise specified, and moderate mental retardation.2 Dr. Blotcky assigned the
plaintiff a GAF score of 26.3 Dr. Blotcky also completed a residual functional
capacity questionnaire provided by the plaintiff’s attorney on which he indicated the
plaintiff had marked or extreme limitations in almost every category. Record 296-98.
All of the treatment notes and consultative evaluations in the record
occurred prior to the time of the plaintiff’s alleged onset date, as amended. The
plaintiff amended her onset date to June 20, 2009, because she continued working up
until that time. Record 155. The plaintiff’s earning records show that during 2008,
while she was being treated at IRMHC and evaluated by Dr. Gagg, she earned
$13,489. Record 152. Of this, $8,497 was reported as self employment income.
Record 152. During the first two quarters of 2009 the plaintiff earned $5,920 in
wages. This period coincides with Dr. Blotcky’s evaluation on May 11, 2009. The
2

Plaintiff has not raised the issue of mental retardation on appeal.

3

A GAF rating of 21-30 reflects: “Behavior is considerably influenced by
delusions or hallucinations OR serious impairment in communication or judgment
(e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR
inability to function in almost all areas (e.g., stays in bed all day, no job, home, or
friends.) DSM-IV at 32 (emphasis in original).
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plaintiff also reported $7,340 in self-employment income during 2009.

In amending

her alleged onset date, the plaintiff alleged she has not worked since June 20, 2009.
Record 155.
After considering the evidence, the ALJ found the plaintiff had the
residual functional capacity (RFC) to perform light work in a temperature controlled
environment without concentrated fumes or odors. Record 13. The ALJ found the
plaintiff had the ability to understand, remember and carry out simple instructions. Id.
She was to have no contact with the general public. Id. Based upon this RFC and
expert vocational testimony, the ALJ found the plaintiff could perform her past
relevant work as a housekeeper. Record 17, 42-43.
The ALJ found that the plaintiff impairments could reasonably cause her
alleged symptoms. However, he found her allegations of disabling limitations were
not credible. The ALJ also found Dr. Blotcky’s residual functional capacities
questionnaire was not credible.4 In making his credibility finding, the ALJ observed
that the plaintiff “reported on multiple occasions that her psychotic and depressive
symptoms improved when she was taking her medication.” Record 15. He noted the
plaintiff had made a number of false statements. For example, he observed that the
plaintiff falsely reported to Dr. Blotcky that she had never had a job even though she
4

Dr. Blotcky does not qualify as a treating source under the Commissioner’s
regulations. 20 C.F.R. § 416.902. However, the ALJ is still required to consider his
medical opinions. 20 C.F.R. § 416.927(c).
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was working at the time of his evaluation. Record 16. The ALJ also noted the
plaintiff told Dr. Blotcky she had no children, when she in fact has three. Record 16.
The ALJ concluded his credibility determination as follows:
The claimant has not proven that she is disabled. As stated above, her
presentation at Dr. Gagg’s evaluation was such that he diagnosed
malingering. He based that on his observations, evaluation and
administration of a screening tool for malingering. (Ex. 8F) There are
discrepancies among her presentation at Drs. Gagg, Blotcky and Indian
Rivers. The conclusion is that at a minimum, claimant continues the
work she was doing when she presented to each of these sources.
Claimant also has recorded self-employment income from cleaning.
Record 16.
The ALJ’s findings are reasonable and are supported by substantial
evidence in the record. Dr. Blotcky’s report indicates a level of mental impairment
that is inconsistent with the plaintiff continuing ability to work during 2008 and 2009.
That she was working at the time of the evaluation contradicts Dr. Blotcky’s finding
of extreme and marked impairments in numerous work related activities. The plaintiff
was uncooperative when she was evaluated by Dr. Gagg and exhibited blatant
malingering behavior, which was verified by testing. This evidence supports the
ALJ’s decision not to credit the plaintiff’s testimony.
The plaintiff’s treatment history is also inconsistent with her allegations
of disabling mental impairments. When seen initially at IRMHC, the plaintiff was
assessed a GAF score of 60, indicating moderate symptoms. Later treatment notes

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indicate the plaintiff was improved with medication. This supports the ALJ’s RFC
finding of less than disabling mental symptoms. The lack of continuous mental health
treatment supports the ALJ’s findings. The last mental health treatment note in the
record was November 12, 2008. The plaintiff’s ALJ hearing was on July 22, 2010,
almost two years later. There are no mental health care treatment notes during that
period. Such a gap in treatment supports the ALJ’s finding of a non disabling mental
impairment.
CONCLUSION
The court has carefully reviewed the entire record in this case. For the
reasons set out above, the court finds the Commissioner's decision is supported by
substantial evidence and that proper legal standards were applied in reaching that
decision. Accordingly, the decision of the Commissioner must be affirmed.
A separate order in conformity with this memorandum opinion will be
entered.
Done this 7th day of August, 2013.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
123966

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