Fondren v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 8/10/15. (MRR )
2015 Aug-10 PM 02:18
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THOMAS WAYNE FONDREN
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
Case No. 7:14-CV-00093-SLB
Plaintiff Thomas Wayne Fondren brings this action pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of the final decision of the Commissioner of Social
Security denying his applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). After review of the record, the parties’
submissions, and the relevant law, the court is of the opinion that the Commissioner’s
decision is due to be affirmed.
I. PROCEDURAL HISTORY
Fondren applied for DIB and SSI on September 15, 2010, alleging a disability
onset date of March 1, 2010. (R. 107-16).1 The Social Security Administration
denied his applications on March 9, 2011. (R. 58-67). He requested a hearing before
an Administrative Law Judge (“ALJ”), which was held on August 20, 2012.
(R. 30-53, 70). The ALJ denied his applications on September 24, 2012. (R. 7).
On October 7, 2012, Fondren petitioned the Appeals Council to review the
Citations to a document number, (“Doc. __”), refer to the number assigned to each
document as it is filed in the court’s record. Citations to page numbers in the Commissioner’s
record are set forth as (“R.__”).
ALJ’s decision. (R. 6). On December 5, 2013, the Appeals Council denied his
request for review, thereby rendering the ALJ’s decision the final decision of the
Commissioner of Social Security. (R. 1). Fondren timely appealed to this court.
II. STANDARD OF REVIEW
This court reviews de novo the Commissioner’s conclusions of law and reviews
her factual findings to determine whether they are supported by substantial evidence.
Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007). Substantial
evidence is “relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Id. (quotation and citation omitted).
A. THE FIVE-STEP EVALUATION
The Commissioner follows a five-step sequential evaluation to determine
whether a claimant is disabled and eligible for DIB or SSI. 20 C.F.R. §§ 404.1520(a),
416.920(a); see Bowen v. City of New York, 476 U.S. 467, 470, 106 S.Ct. 2022, 2025,
90 L.Ed.2d 462 (1986) (“The regulations for both programs are essentially the
same . . .”). For the purpose of this evaluation, “disability” is 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 has lasted or can be
expected to last for a continuous period of not less than 12 months. . . .” 42 U.S.C.
§ 416(i)(1)(A); see id. § 423(d)(1)(A).
1. Substantial Gainful Activity
First, the Commissioner determines whether the claimant is engaged in
“substantial gainful activity” as defined by the regulations.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i); see id. §§ 404.1572, 416.972. If the claimant
is so engaged, he is not disabled. Id. §§ 404.1520(b), 416.920(b). Here, the ALJ
determined that Fondren had not engaged in substantial gainful activity since the
alleged onset date of March 1, 2010. (R. 12).
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner
determines whether he suffers from a severe impairment or combination of
impairments that significantly limit his physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1520(a)(4)(ii) & (c), 416.920(a)(4)(ii) & (c). If the
claimant does not have such an impairment or impairments, he is not disabled. Id.
§§ 404.1520(c), 416.920(c). Here, the ALJ found that Fondren had a severe
impairment of bipolar disorder. (R. 12).
3. The Listings
If the claimant has severe impairments, the Commissioner determines whether,
alone or in combination, they meet the duration requirement and whether they are
equivalent to any one of the listed impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii); see id. §§ 404.1523, 404.1525, 404.1526, 416.923, 416.925,
416.926. If the impairments are equivalent to one of the listed impairments, the
claimant is disabled. Id. §§ 404.1520(d), 416.920(d). Here, the ALJ found that
Fondren’s impairment was not equivalent to one of the listed impairments. (R. 13).
4. Residual Functional Capacity and Past Relevant Work
If the impairments are not equivalent to one of the listed impairments, the
Commissioner assesses the claimant’s residual functional capacity (“RFC”), which
is the most the claimant can do despite the limitations.
§§ 404.1520(a)(4)(iv), 404.1545(a)(1), 416.920(a)(4)(iv), 416.945(a)(1).
considers all of the claimant’s medical impairments in determining the RFC. Id.
§§ 404.1545(a)(2), 416.945(a)(2). Then, she determines whether, considering the
RFC, the claimant can perform his past relevant work. Id. §§ 404.1520(a)(4)(iv) &
(f), 416.920(a)(4)(iv) & (f). If the claimant is capable of performing his past relevant
work, he is not disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Here, the ALJ determined that Fondren was capable of a full range of work at
all exertional levels, with non-exertional limitations of: (1) performing simple,
routine, repetitive tasks; (2) maintaining attention and concentration for two-hour
periods; (3) avoiding interaction with the general public as a job duty; (4) having
non-confrontational supervision; (6) making simple work-related decisions;
(7) avoiding close cooperation with co-workers; (8) being absent from work one day
per month; and (9) adapting to routine and infrequent workplace changes introduced
gradually. (R. 14).
The ALJ consulted a Vocational Expert (“VE”) to determine whether Fondren
could perform his past relevant work, considering his RFC, age, education, and work
experience. (R. 49-50). The VE testified that he could perform his past relevant
work as a spray painter and a palletizer. (R. 50). Based on this testimony, the ALJ
found that Fondren could perform his past relevant work and was not disabled. (R.
5. Other Work in the National Economy
Because the ALJ determined that Fondren was not disabled at step four, she did
not consider whether he could perform other work that existed in substantial numbers
in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c)(1),
416.920(a)(4)(v), 416.960(c)(1); (R. 17).
B. FONDREN’S CLAIMS
1. Weight afforded to opinion of Fondren’s counselor
Fondren argues that the ALJ did not give proper weight to the opinion of his
counselor Ninna Knight. (Doc. 8 at 10-14). He also accuses the ALJ of improperly
“cherry-picking” information from his Function Report to support the RFC. (Id. at
11-12). He asserts that the ALJ improperly discounted the opinion of Dr. Charles
Houston, who performed his consultative exam. (Id. at 12-13).
In assessing RFC, the Commissioner may consider the opinions of “acceptable
medical sources,” such as physicians and psychologists, and “other sources,” such as
counselors and therapists. 20 C.F.R. §§ 404.1513(a) & (d)(1), 416.913(a) & (d)(1).
In weighing these opinions, the Commissioner considers whether, and the extent to
which, the source examined and/or treated the claimant, the evidence supporting the
opinion, whether the opinion is consistent with the record, and the source’s specialty.
Id. §§ 404.1527(c), 416.927(c).
A treating source is an acceptable medical source who has an ongoing
treatment relationship with the claimant and sees the source with a frequency
consistent with accepted medical practice for the type of treatment or medical
condition at issue. Id. §§ 404.1502, 416.902. The Commissioner gives a treating
source’s opinion controlling weight if it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence.” Id. §§ 404.1527(c)(2), 416.927(c)(2). She considers an RFC
assessment done by a non-examining state agency physician as relevant to what the
claimant can do. Id. §§ 404.1513(c), 416.913(c).
Here, substantial evidence supports the ALJ’s weighing of the evidence and
assessment of Fondren’s RFC. From March 24 to March 30, 2007, he was admitted
to the hospital upon experiencing anger after a fight with his wife, in which he
smashed his truck window with a baseball bat. (R. 281). He stabilized and, at
discharge, was alert and oriented with an improved mood, no overt symptoms of
psychosis, limited insight and judgment, and fair impulse control. He was diagnosed
with depression and marijuana abuse and had a Global Assessment of Functioning
(“GAF”) score of 45. (Id.).
On April 2, 2007, Indian Rivers Mental Health Center (“Indian Rivers”)
determined his GAF score was 52, indicating moderate symptoms or difficulty in
functioning. (R. 311).
On May 4, 2007, he visited the emergency room and said that he was agitated
after arguing on the phone with his wife, from whom he had been separated for six
weeks. (R. 272). He requested that the doctor give him “a pill” because he could not
deal with the tension. He was very agitated, restless, anxious, and fidgety. (Id.). The
doctor believed that his insight and judgment were poor, because he believed his
problems would be fixed by taking a pill. (R. 273). The doctor diagnosed him with
major depression, recurrent; generalized anxiety disorder; and marijuana abuse. (Id.).
He was admitted to the hospital and given medication for his depression and anxiety.
He was discharged the following day after the doctor made adjustments to his
medications. (R. 275). Upon discharge he was alert and oriented with appropriate
mood and affect, organized thinking, and fair memory, concentration, retention, and
recall. His prognosis was guarded, and the doctor diagnosed him with major
depression, recurrent; insomnia; and anxiety. (Id.).
On December 27, 2007, he visited the emergency room and stated that he had
suffered from mild depression, anxiety, and stress for several days and was “not
thinking right.” (R. 258). He had received an Ativan injection at another hospital
that night and reported using marijuana. (Id.). He was diagnosed with major
depression and discharged that day when his condition improved. (R. 256).
On December 16, 2009, he visited Indian Rivers and stated that he had been out
of medication for several days and felt “down.” (R. 300). He said his depression
level was mild, but he had difficulty with sleep and some loss of appetite. He
exhibited a moderate level of functioning in daily coping and family relationships.
He said that his past treatment was effective. (Id.). Michelle Littleton created an
annual treatment plan with him (R. 321-22), which was updated on June 28, 2010,
(R. 309-10), and September 30, 2010, (R. 307-08). His strengths were his ability to
cooperate, community connection, and persistence. (R. 321). His barriers were his
hopelessness, inability to identify self goals, and low self esteem. (Id.). He set
objectives to prevent relapse and recurrence of his depression. (R. 321-22). He was
to find an appropriate medication regimen, take medications as prescribed, engage in
social activities and community functions as part of daily living, and actively seek
and utilize community resources. (R. 307-10, 321-22).
On September 1, 2010, during a mental status exam performed at Indian Rivers,
he was cooperative, had a concrete thought process and appropriate thought content,
and was sad, anxious, and tearful. (R. 305). That day, he was admitted to North
Harbor Pavilion after reporting being very depressed, angry, and anxious. (R. 240).
He had “lost it” afer being refused food stamps and had damaged his property and
threatened to kill himself. (R. 251). He had not taken his medication for depression
in two months. (Id.). The doctor started him on medication, and he was discharged
upon stabilization on September 5, 2010. (R. 240, 251). At discharge, he was alert
with an improved mood, no symptoms of psychosis, limitations in insight and
judgment, and fair impulse control. (R. 240).
During a September 10, 2010 mental status exam at Indian Rivers, he was
cooperative, alert, and oriented and had a flat affect and an appropriate and coherent
thought process. (R. 301). He was depressed and his thought content was guarded.
(Id.). In another exam conducted that day, he was paranoid and experienced auditory
hallucinations. (R. 303). His mood was euthymic. (Id.). The doctor prescribed
further medication to control his increased depression. (R. 307).
On October 17, 2010, he completed a Function Report and stated that he sat
around his house most of the time and sometimes visited his mother’s house. (R. 142,
149). He attended to his personal care, prepared his meals everyday, and did most of
the indoor chores. (R. 143-44). He avoided yard work because his medication
prevented him from being in the heat. (R. 145).
He stated that he went outside two to three times a day and drove a car to get
around. (R. 145). He went to the store once a week to purchase food and household
items. (Id.). He watched television and listened to the radio everyday. (R. 146). He
spent time with others everyday, but mostly just with his family because he was
nervous around crowds. He went to his mother’s house and a friend’s house on a
regular basis. He did not need to be reminded to go places or need anyone to go with
He stated that he did not have problems getting along with family, friends,
neighbors, or others, but it bothered him to be around a lot of people. (R. 147). He
had issues with memory and concentration, but could pay attention “very well.” He
would finish what he started and was able to follow written instructions well. He
could follow spoken instructions fairly. (Id.). He got along fairly with authority
figures, and had been fired from a job at Cahaba Veneer because he could not take the
“pressure of someone standing over [him] fussing about [his] work.” (R. 148). He
could not handle stress well and could handle changes in routine fairly. (Id.).
During a mental status exam conducted at Indian Rivers on December 10,
2010, he appeared unkempt but was cooperative and had an appropriate, goaldirected, and coherent thought process with appropriate thought content. (R. 317).
His mood was euthymic. He was alert and oriented and had a neutral affect. (Id.).
His doctor did not change his treatment. (R. 319).
On January 12, 2011, Dr. Houston examined him and noted that his orientation
was good and his thought processes and speech were appropriate. (R. 195-96). He
had no loose associations or confusion, and his mood and affect were appropriate.
(R. 196). He was cooperative, interested, and persistent and could concentrate pretty
well. Dr. Houston diagnosed him with bipolar disorder, primarily depressed, with
reported history of psychotic features. (Id.).
Dr. Houston stated that Fondren was capable of performing basic daily
activities, and his behavior and appearance were good. (R. 197). His activities were
moderately to severely restricted. His interests were moderately constricted, and his
ability to relate to others was affected. He might have needed assistance with
personal and financial affairs and had minor problems with concentration, but was
persistent. He adapted well to the changing conditions of the evaluation, but would
have difficulty with total independent functioning. His ability to meet the demands
of competitive employment was affected. (Id.).
On January 19, 2011, he visited Indian Rivers and reported that his medications
were somewhat effective. (R. 315). He experienced anhedonia and sleeplessness,
and was having numerous family conflicts. (Id.). He had a GAF score of 57,
evidencing moderate functional impairments. (R. 316). While he had experienced
some progress with treatment, he had a history of non-compliance with treatment.
On that day, he created another annual treatment plan with Michelle Littleton
to stabilize his depression and anxiety and increase his ability to function on a daily
basis. (R. 319-20). He reported good progress with his medication and no symptoms
of depression. (R. 319). He set an objective of being 100 percent compliant with his
medications and being able to verbalize the importance of taking medication as
prescribed in controlling his symptoms. (R. 319-20).
Dr. Melissa Jackson assessed Fondren’s RFC on March 9, 2011. (R. 212-14).
She determined that his ability to do the following was not significantly limited:
(1) remember locations and work-like procedures; (2) understand, remember, and
carry out very short and simple instructions; (3) sustain an ordinary routine without
special supervision; (4) make simple, work-related decisions; (5) ask simple questions
or request assistance; (6) be aware of normal hazards and take appropriate
precautions; (7) travel in unfamiliar places or use public transportation; and (8) set
realistic goals or make plans independently of others. (R. 212-13). He was
moderately limited in the following: (1) understanding, remembering, and carrying
out detailed instructions; (2) maintaining attention and concentration for extended
periods; (3) performing activities with a schedule, maintaining regular attendance,
and being punctual with customary tolerances; (4) working in coordination with or
in proximity to others without being distracted; (5) completing a normal work day and
work week without interruptions from psychologically based symptoms and
performing at a consistent pace without an unreasonable number and length of rest
periods; (6) interacting appropriately with the general public; (7) accepting
instructions and responding appropriately to criticism from supervisors; (8) getting
along with co-workers or peers without distracting them or exhibiting behavioral
extremes; (9) maintaining socially appropriate behavior and adhering to basic
standards of neatness and cleanliness; and (10) responding appropriately to changes
in the work setting. (Id.).
Dr. Jackson explained that Fondren occasionally would have difficulty with
remembering and carrying out complex, multi-stepped tasks, but would have no
difficulty with simple work instructions and procedures. (R. 214). While he would
have difficulty maintaining concentration at times, he could focus for two hours on
simple tasks. He would miss one to two days of work per month due to his mental
health symptoms. Because he was irritable, he would work best in a well-spaced
environment with occasional tasks requiring a coordinated effort with co-workers.
Dr. Jackson determined that he could only handle casual, not intensive, and
infrequent contact with the public and co-workers. (Id.). Thus, he was capable of
working in situations with limited contact with the public and limited work
responsibilities requiring social interaction. He could only handle infrequent,
gradually introduced changes in the workplace. (Id.).
During mental status exams at Indian Rivers on May 13 and November 11,
2011, he was appropriately groomed and cooperative and had appropriate thought
processes and content. (R. 331, 333). He experienced no hallucinations or delusions
and his mood was euthymic. (Id.).
On January 30, 2012, he created another annual treatment plan at Indian Rivers,
this time with the help of clinician Ninna Knight. (R. 329; see R. 326). On that day,
he had a GAF score of 60, which represented moderate symptoms or difficulty in
functioning. (R. 330). On May 21, 2012, a mental status exam indicated that he was
appropriately groomed, alert, oriented, and cooperative and had an appropriate
thought process and content with no hallucinations. (R. 327). He was depressed and
anxious, but had a neutral affect and normal sleep patterns. (Id.).
On August 8, 2012, Knight completed an RFC assessment form. (R. 325-26).
She stated that Fondren had moderately severe limitations in (1) relating to other
people; (2) the breadth of his interests; (3) understanding, carrying out, and
remembering instructions; (4) responding appropriately to supervision, co-workers,
and customary work pressures; and (5) performing complex or varied tasks. (R. 325).
He was moderately limited in his ability to complete daily activities, keep up his
personal habits, and perform simple or repetitive tasks. (Id.). Knight had not
performed a psychological evaluation on Fondren. (R. 326). She stated that his
medication caused him to be agitated, hostile, and hyperactive, and to hallucinate.
At the hearing before the ALJ, Fondren testified that he could not be around
a crowd of people because he liked to be by himself and had experienced a nervous
breakdown. (R. 35-36). His medication helped his symptoms by making him calmer
and allowing him to tolerate being around a few people. (R. 36, 38). He lived at
home with his mother and niece and sat in his room everyday with the lights off.
(R. 38-39, 43). He walked around outside sometimes and mowed the grass every
couple of weeks. (R. 39, 45). He sometimes read the newspaper and understood
some of it. (R. 44-45). He took out the trash, but his mother or niece did the rest of
the house work. (R. 45).
He would drive to the grocery store and sometimes visited a friend’s house, but
preferred to be by himself. (R. 39-40). He did not go out to eat or to the movies
because he could not handle being around crowds. (R. 40). Going to a business or
restaurant made him nervous because he could not “cut” the noise level. (R. 43). He
had concentration problems, and would forget what he had watched on television.
On appeal, Fondren asserts that the ALJ did not give proper weight to Knight’s
opinion. (Doc. 8 at 10-11). To the extent that he asserts the ALJ should have given
Knight’s opinion controlling weight, this assertion is in error because Knight is not
an acceptable medical source or treating source under the regulations. See 20 C.F.R.
§§ 404.1502, 404.1527(c)(2), 416.902, 416.927(c)(2). While Knight worked with
Fondren in establishing his treatment plan for 2012, there is no evidence that she ever
examined him. See id. §§ 404.1527(c)(1), 416.927(c)(1); (R. 326, 329). To the
extent that she had a treating relationship with him, there is no evidence that she saw
him more than once before completing the RFC assessment, and her notes from that
visit do not support her assessment of his limitations.
See 20 C.F.R.
§§ 404.1527(c)(2)(i) & (c)(3), 416.927(c)(2)(i) & (c)(3). Furthermore, her assessment
is not supported by the objective medical evidence.
(R. 16); see 20 C.F.R.
§§ 404.1527(c)(4), 416.927(c)(4).
Fondren’s treatment plan at Indian Rivers included increasing social contact.
(R. 308, 310). His need for inpatient treatment was immediately preceded by specific
stresses in his life, not mere exposure to co-workers or people in general. (R. 251,
272, 281). He reported to his doctors and to the ALJ that his medications were
effective, and Indian Rivers noted that he experienced progress with treatment when
he was compliant. (R. 36, 38, 315-16, 319). When he was admitted to the hospital
in 2010, he had not taken his medication for two months. (R. 251). Further, none of
the records from Indian Rivers indicate more than moderate functional impairments.
(R. 300, 316, 330).
Knight’s assessment was also inconsistent with Fondren’s Function Report and
testimony. He shopped in public once a week and visited a friend’s house, spending
time with others everyday. (R. 39-40, 145-46). He did not have any problems getting
along with family, friends, and neighbors. (R. 147). While he had issues with
memory and concentration, he could pay attention and follow written instructions
well. (Id.). He had a fair ability to follow spoken instructions, get along with
authority, and handle changes in routine. (R. 147-48).
While Knight’s assessment is somewhat consistent with the opinion of
Dr. Houston, the ALJ did not err in giving limited weight to Dr. Houston’s opinion.
The medical evidence does not support the level of limitation described by him.
Further, Knight’s and Dr. Houston’s opinions were inconsistent with that of Dr.
Jackson. The ALJ did not err in giving great weight to Dr. Jackson’s opinion, as it
was supported by the objective medical evidence discussed above. See 20 C.F.R.
§§ 404.1527(c)(4), 416.927(c)(4).
For these reasons, the ALJ did not err in giving limited weight to Knight’s
opinion. Moreover, the ALJ’s RFC assessment accounted for Fondren’s limitations
that are supported by the objective medical evidence.
2. ALJ’s Credibility Finding
Fondren argues that the ALJ improperly discredited his testimony as to the
intensity, persistence, and limiting effects of his symptoms. (Doc. 8 at 14-15).
To prove a disability based on a claimant’s testimony as to his symptoms, the
claimant must present evidence of an underlying medical condition; and either
objective medical evidence confirming the severity of the symptoms, or evidence
showing that the objectively determined medical condition can reasonably be
expected to give rise to the symptoms. 20 C.F.R. §§ 404.1529(a), 416.929(a); Wilson
v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The ALJ must provide explicit
and adequate reasons for discrediting the claimant’s testimony as to his symptoms.
Wilson, 284 F.3d at 1225. If the ALJ does not, the court must accept the testimony
as true. Id.
When the ALJ determines that an underlying impairment reasonably could be
expected to produce the symptoms the claimant describes, he evaluates the intensity
and persistence of the symptoms to determine the extent to which they affect the
claimant’s ability to work. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). Throughout
this evaluation, the ALJ considers a range of medical and other evidence, such as
evidence of the claimant’s daily activities, side effects of medication used to treat the
symptoms, and measures the claimant takes to alleviate the symptoms.
§§ 404.1529(c)(3), 416.929(c)(3).
Here, the ALJ determined that Fondren’s medically determinable impairments
reasonably could be expected to cause some of the symptoms, but his testimony as
to the intensity, persistence, and limiting effects was not credible to the extent that it
was inconsistent with the RFC. (R. 15). The ALJ determined that the medical
evidence and Fondren’s testimony did not support his extreme allegations of an
inability to be around others or go in public. (R. 17). Her finding is supported by
As discussed above, the objective medical evidence does not support a finding
of further limitations not accounted for in the RFC, and Fondren did not show that his
impairment reasonably could be expected to give rise to the extreme symptoms he
described. See Wilson, 284 F.3d at 1225. The ALJ addressed Fondren’s discomfort
with social interaction by limiting his exposure to others to occasional interactions
with only co-workers and supervisors. (R. 14).
She addressed his issues with
concentration by limiting him to simple instructions and work-related decisions. She
further reduced the amount of stress that he would be exposed to by limiting him to
infrequent, gradual workplace changes, and allowing for an absence of one day per
month to cope with the effects of his impairment. (Id.).
Based on the reasons set forth above, the decision of the ALJ, as adopted by
the Commissioner, denying Fondren’s applications for DIB and SSI is due to be
affirmed. An Order affirming the decision of the Commissioner will be entered
contemporaneously with this Memorandum Opinion.
DONE this 10th day of August, 2015.
SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE
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