Stephens v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/2/16. (SAC )
2016 Mar-02 PM 04:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
JOSEPH E. STEPHENS,
CAROLYN W. COLVIN,
Social Security Administration,
CIVIL ACTION NO.
The claimant filed applications for disability insurance benefits and supplemental
security income on December 7, 2010. (R. 24, 147-56). The claimant alleged disability
beginning February 1, 2005. (R. 147-56). He later amended his alleged onset date to November
29, 2010. (R. 42, 204). The applications were denied. (R. 73-74). In a decision dated
September 21, 2012, the ALJ found that the claimant was not disabled at any time through
December 31, 2010, the last date insured, but became disabled on April 12, 2011. (R. 33). The
Appeals Council denied the claimant’s request for review as to the finding of no disability before
April 12, 2011. (R. 1-5). Given the last date insured, that finding meant that the claimant was
ineligible for disability insurance benefits. The claimant has exhausted his administrative
remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the
reasons stated below, this court REVERSES the decision of the Commissioner as to the finding
of no disability before April 12, 2011, and REMANDS it for further action consistent with this
II. ISSUES PRESENTED
The claimant presents the following issues for review: (1) whether the ALJ failed to
properly consider listing 12.05C of the regulations to evaluate the claimant’s disability; and (2)
whether substantial evidence supports the ALJ’s determination of an RFC for the claimant’s
condition prior to April 12, 2011, as to (a) the ALJ’s analysis of the claimant’s hypertensive
condition prior to that date, and (b) the ALJ’s pain standard analysis.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if the factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham
v. Apfel, 129 F.3d 1420, 1422 (11th Cir.1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.
“No...presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971).
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(d), 416.927(d).
Whether the claimant 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 power to reverse that finding as long as substantial
evidence in the record supports it.
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look
only to those parts of the record that support the decision of the ALJ, but also must view the
record in its entirety and take account of evidence that detracts from the evidence relied on by the
ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable 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 12 months . . . .” 42
U.S.C. § 423(d)(1)(A). To make this determination the Commissioner employs a five-step,
sequential evaluation process:
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the
An affirmative answer to any of the above questions leads either to
the next question, or, on steps three and five, to a finding of
disability. A negative answer to any question, other than step three,
leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986) ; 20 C.F.R. §§ 404.1520, 416.920.
When the claimant fails to bring the ALJ’s attention to a specific listing, the ALJ is under
no obligation to specifically discuss whether the claimant’s impairments meet or equal a specific
listing. Robinson v. Astrue, 365 F. App’x 993, 995 (11th Cir. 2010). Furthermore, the ALJ need
not scour the medical record searching for other impairments that might be disabling, either
individually or in combination, that have not been identified by the claimant. Street v. Barnhart,
133 F. App’x 621, 627 (11th Cir. 2005). Moreover, the “administrative law judge is under no
obligation to investigate a claim not presented at the time of the application for benefits and not
offered at the hearing as a basis for disability.” Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996).
In evaluating pain and other subjective complaints, the Commissioner must consider
whether the claimant demonstrated an underlying medical condition, and either (1) objective
medical evidence that confirms the severity of the alleged pain arising from that condition or (2)
that the objectively determined medical condition is of such a severity that it can reasonably be
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) was a supplemental security income case
(SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are
appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir.
1981) (Unit A).
expected to give rise to the alleged pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
The ALJ may consider the claimant’s daily activities in evaluating and discrediting complaints of
disabling pain. Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir. 1984).
If the ALJ decides to discredit the claimant’s testimony as to her [subjective symptoms],
she must articulate explicit and adequate reasons for that decision; failure to articulate reasons for
discrediting claimant’s testimony requires that the court accept the testimony as true. Foote v.
Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995). A reviewing court will not disturb a clearly
articulated credibility finding with supporting substantial evidence in the record. Foote, 67 F.3d
1. General History
The claimant was fifty-two years old at the time of the ALJ’s decision. (R. 46). He has an
eleventh-grade education with no special education history, and has past work experience as a
seat installer and as a cleaner. (R. 59). The claimant originally alleged that he was disabled
because of hypertension, stroke, headache, dizziness, depression, memory loss, and carpal tunnel
syndrome. (R. 185).
The claimant has a history of alcohol abuse, but insists that he stopped drinking in 2004.
(R. 53). Records from the Indian Rivers Community Mental Health Center reflect that he had a
history of attending group sessions on topics related to alcoholism and addiction, including
anger and stress management, coping with depression, sexually transmitted diseases, spirituality,
negative effects of alcohol, etc. (R. 375-409).
In the Function Report the claimant submitted to the Agency dated December 16, 2010,
the daily activities that the claimant described were watching tv; dressing himself, but routinely
using a seat during the dressing process; bathing and grooming himself, but using a shower chair
to avoid falling; preparing tv dinners in the microwave; making his own bed and cleaning his
room but doing the process slowly in a one-two hour period; shopping for food twice a month;
riding in a car two or three times per week with someone else driving. As to sleeping, the
claimant stated that he did not go to sleep until 2-3 AM and awoke at about 5 AM. The Report
asked “Have you ever been fired or laid off from a job because of problems getting along with
people?” The claimant responded yes, that when he was employed by Franklin Transportation, “I
was accused of spitting on the floor, in which I did not do and I was fired.” (R. 191-96).
In the undated Disability Report he submitted to the Agency, the claimant stated that he
left his last employment with Johnson Control as a seat builder on 2/1/05 because of “my
condition(s)” listed above as “1. Hbp; stroke; headaches; dizziness; depression; 2. memory loss;
3. carpal tunnel,” and he acknowledged that he had never seen a doctor or other health
professional or received treatment for any mental condition.
He was not yet released to return
to work when he shot his wife, resulting in incarceration.
The claimant was incarcerated for five years from 2005-2010. The record is unclear
about the exact date his incarceration began2, but the ALJ’s questioning of him refers to his being
in prison five years, and the record reflects that he was released on or about November 28, 2010.
(R. 49 & 253 (Correctional Medical Services Discharge/Release Health Information)). The
At the hearing, the ALJ made the following reference: “I was about to say that the issues
are that this 12/7/10 application would have a problem with the onset date of 6/1/05 because of
prison.” (R. 42). The ALJ also refers in a question to the claimant about “all five years or so you
were in prison.” (R. 49).
records reflect that the claimant was in two facilities during these years, in Bullock and Bibb
Counties, but no clarity exists about when he moved from one to another.
According to the claimant’s hearing testimony, during two of those five years, he was
assigned to the cleaning crew at the prison doing “a little cleaning and stuff like that,” and he
explained that he picked up paper. The number of hours a day he worked varied, and he thinks
he was paid wages when he worked. (R. 48).
Because the ALJ found that the claimant was not disabled prior to April 12, 2011 and that
his disability began on April 12, 2011, the court will address the claimant’s history in two parts:
prior to April 12, 2011; and from April 12, 2011 onward.
2. Health History & Treatment Prior to April 12, 2011
a. Physical Health
According to both Dr. John R. Goff, PhD, and neurologist Robert MacGregor of MDSI
Physician Services, the claimant’s records from DCH Regional Medical Center in 2005 indicate
that the claimant had a “hypertensive crisis and headaches and dizziness [with a diagnosis] of
hypokalemia, hyperlipidemia and sinusitis” as well as a second hospitalization involving
hypertension prior to 2011. (R. 339 & 440). The DCH charts that are part of this record show a
hospitalization in February of 2005 for a hypertensive crisis with headaches and dizziness with
blood pressure readings of 220/146 (R. 273 & 294). DCH charts for the February 2005
hypertensive crisis reflect that he was “noncompliant taking his blood pressure medicine.” (R.
In May of 2005, the claimant was treated at DCH Emergency Room for chest pain and
dizziness with blood pressure readings of 142/67, 151/103, and 174/122. The hospital chart
reflects that his current medications included blood pressure drugs. No notations reflect noncompliance. (R. 308 & 312).
Although the claimant apparently entered prison in 2005, the record does not include
prison health charts for 2005, 2006, and the first months of 2007.
From March 2007-2010, Dr. Tahir Saddiq treated the claimant for headaches, high blood
pressure, and dizziness. On March 12-13, 2007, his Intake Health Evaluation showed a blood
pressure reading of 220/120 with a re-take of 150/110, and he responded “yes” to questions
about severe headaches, dizziness, vision problems. The chart reflects that the claimant had not
taken his blood pressure medication “this evening,” but that notation implies that he was taking
medication, and had simply not taken the evening dose. (R. 217 & 223). On March 15, 2007,
Prison Health Services Progress Notes reflect that the claimant had blood pressure of 210/130
and stated that he had a history of uncontrolled blood pressure with a CVA (cerebrovascular
accident) in 2005. The chart stated that the claimant should continue “current meds.” On June
18, 2007, the claimant’s blood pressure readings were 145/102 and 204/133, and he complained
of headaches. A few days later on June 22, 2007 his reading was 220/120, and he responded
“yes” to questions about severe headaches, dizziness, vision problems. Although the June 18,
2007 entry indicated that the claimant did not want to stay in the “HCC overnight,” the record did
not reflect noncompliance with medication in these 2007 incidents. (R. 222).
On August 22, 2008, the ADOC Health Evaluation reflects that the claimant’s blood
pressure was 175/112. The record regarding this 2008 evaluation did not reflect noncompliance
with medication. (R. 226).
In February of 2010, the claimant’s blood pressure was 126/81 with a note that he needed
to return to the clinic because his blood pressure was increasing. A month later, in March, the
chart note reflected hypertension, dizziness, and “feeling bad” with a reading of 160/100, and the
chart reflected that he would receive medications for blood pressure weekly in the infirmary. (R.
236-39). In July his reading was 124/84 and in September of 2010, his reading was 136/84. (R.
213-253). His health evaluation on October 13, 2010 reflected a blood pressure reading of
105/79. (R. 251). The claimant’s November 28, 2010 discharge health information listed
several blood pressure medications such as clonidine, lisinopril, triamterene, and hydralazine,
and he was discharged with at least a 30 day supply of each. (R. 253). None of the 2010 chart
entries reflected noncompliance with medications.
On January 22, 2011, approximately two months after the claimant’s release from prison,
Robert MacGregor, M.D., a neurologist, examined him at the request of the Agency. During the
examination, the claimant reported dizziness and frequent headaches, but also reported that he
handled his personal hygiene independently, without assistance. The claimant described taking
several blood pressure medications. Dr. MacGregor’s report did not reflect that the claimant
reported depression or any mental problems. Upon examination, the claimant could walk
without complications, get on and off the examination table without problems, and could remove
his shoes/socks without difficulty. The examiner noted that the claimant had a normal cardiac
examination, but that his blood pressure was 220/120, and that the claimant had normal sensory
responses and was neurologically intact. Dr. MacGregor provided a diagnosis of “hypertensive
urgency” and advised the claimant to have his blood pressure re-checked and to go to the
emergency room if his blood pressure remained elevated. (R. 338-342).
2. Mental Health
Paul Davis, Ph.D., a psychologist, examined the claimant on February 16, 2011, at the
request of the Agency. During the examination, the claimant reported that he left his job because
of elevated blood pressure, and that his doctor did not clear him to return to work. At the time of
the examination, the claimant reported being depressed, but was taking no medications for
depression. The claimant described poor sleep patterns; he was only sleeping 45 minutes per
day. Dr. Davis’s reports revealed a depressed mood, but no extreme shifts in emotions. The
doctor noted that the claimant’s thought content, process, and abstraction were all normal.
During the examination, the claimant reported participating independently in activities of daily
living, and has no interest in anything but interacting with his family. Dr. Davis gave the
claimant a diagnosis of major depression, recurrent but moderate symptoms; opined that the
claimant was limited by concentration problems associated with depression, but was able to
interact appropriately with supervisors, co-workers, and work pressures. Dr. Davis noted that the
claimant could fully manage his funds. (R. 343-350).
Robert Estock, M.D., a psychiatrist, performed a psychiatric review of the claimant on
March 23, 2011. (R. 351). During the examination, the claimant alleged depression and memory
loss, and stated that he had an eleventh grade education, and that he had no history of special
education classes. Dr. Estock’s review evaluated the claimant for affective disorders under
Listing12.04, finding that a medically determinable impairment is present that does not precisely
satisfy the 12.04 “disturbance of mood” diagnostic criteria for depressive syndrome, manic
syndrome or bipolar syndrome. Instead, Dr. Estock explained his disorder as “MDD [Major
Depressive Disorder], recurrent, moderate.” (R. 354).
In rating the claimant’s functional limitations, the “B” criteria of the listings, Dr. Estock
found only mild limitations in the activities of daily living, maintaining social functioning, and
maintaining concentration, persistence and pace with no episodes of decompensation. The
evidence did not establish “C” criteria under 12.04 (affective disorders) or 12.06 (anxiety-related
disorders). The consultant’s notes indicated that the claimant’s statements regarding his
limitations in activities of daily living were “partly credible,” but that the severity alleged was not
consistent with medical evidence. (R. 360-63).
In his Mental Residual Functional Capacity Assessment Summary Conclusions, Dr.
Estock found no marked limitations and found moderate limitations in the following categories:
the ability to understand and remember detailed instructions; the ability to carry out detailed
instructions; the ability to maintain attention and concentration for extended periods; the ability
to work in coordination with or proximity to others without being distracted by them; the ability
to interact appropriately with the general public; the ability to accept instructions and respond
appropriately to criticism from supervisors; the ability to get along with coworkers or peers
without distracting them or exhibiting behavioral extremes; the ability to respond appropriately
to changes in the work setting; and the ability to set realistic goals or make plans independently
of others. Dr. Estock found that the claimant had no significant limitations in the following
categories: ability to remember locations and work-like procedures; the ability to understand and
remember and carry out very short and simple instructions; the ability to perform activities within
a schedule, maintain regular attendance, and be punctual within customary tolerances; the ability
to sustain an ordinary routine without special supervision; the ability to make simple workrelated decisions; the ability to complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; the ability to ask simple questions or request
assistance; the ability to maintain socially appropriate behavior and to adhere to basic standards
of neatness and cleanliness; the ability to be aware of normal hazards and take approrpriate
precautions; and the ability to travel in unfamiliar places or use public transportation. (R. 366).
The claimant reported issues with concentration, grooming, remembering to complete tasks, and
getting along with others. (R. 365-66). During the examination, the claimant mentioned that he
performed “convenience cooking and light cleaning, shops for groceries in stores, trouble
handling money, remembering, completing tasks, concentrating, understanding, following
instructions, and getting along with others.” (R. 363).
Dr. Estock noted that no problems existed with hygiene, that no unusual behaviors or
mannerisms existed, and that the claimant’s speech was normal. Dr. Estock did note that the
claimant’s mood was depressed, but referred to Dr. Davis’s findings that the claimant was alert to
date, person, place, and situation; and that the claimant had no problems with concentration,
memory, and abstract thinking. Dr. Estock concluded that the claimants’ statements about
activities of daily living were “partly credible [;] the severity alleged is not consistent with [Dr.
Davis’s medical examiner report.]” (R. 363).
April 12, 2011 and afterwards
As the ALJ determined that the claimant was disabled beginningApril 12, 2011, the court
will not list in detail his health history after that date except where it is relevant to his condition
before April of 2011.
Because the claimant’s hypertension existed before April 12, 2011 and because
hypertension is part of what the ALJ based his finding of disability upon as of April 12, 2011,
the April 13, 2011 records for treatment of the claimant’s hypertension at Whatley Health
Services, Inc. may be helpful to determine whether a change occurred between his treatment for
hypertension in January of 2011 and the April 13, 2011 treatment. The April 13, 2011 records
reflect that the claimant complained of occasional dizziness, and headaches, with chronic joint
pain. The doctor recorded the claimant’s blood pressure at 217/141, and diagnosed the claimant
with severe hypertension and GERD. (R. 370).
In addition, because the listing 12.05C requires a “valid verbal, performance, or full-scale
IQ of 60 through 70" as the first element of the listing, the evaluation and IQ testing from
psychologist Dr. John Goff on November 21, 2011, at the request of the Agency, is relevant.
During the examination, the claimant exhibited significant problems with his memory and
concentration. Dr. Goff noted that the claimant had low immediate memory scores and that he
worked slowly, unable to finish the WRAT-IV testing. Dr. Goff opined that the claimant was
able to understand, remember, and carry out very simple instructions but not complex ones.
Noting right-hand weakness and right-hand dexterity deficits, the doctor found that the deficits
suggested left cerebral hemisphere dysfunction consistent with a stroke and his “long history of
uncontrolled hypertension.” (R. 440-448).
Dr. Goff further noted that the claimant had particular problems with verbal skills. Dr.
Goff recorded the claimant’s IQ score at 68; verbal comprehension at 66/1; perceptual reasoning
at 79/8; working memory at 77/6; and processing speed at 71/3. The doctor stated that, in his
opinion, the claimant gave a “straightforward performance.” Dr. Goff noted that the verbal
comprehension index of 66/1 and the full scale IQ score of 68 both fell within the mildly retarded
range; and that the General Ability Index (GAI) was 70, which fell at the edge of the borderline
to mildly retarded range. Dr. Goff stated that the claimant was functionally illiterate. (R. 442448). The math scores ranged “at the mid-fifth grade level so he is able to perform simple
mathematical calculations and he is able to deal with mathematics sufficiently to manage his
financial affairs probably.” (R. 443).
As a diagnosis, Dr. Goff found that the claimant had a moderate to severe cognitive disorder
“probably associated with a CVA,” and a moderate to severe reading disorder. Although the
doctor acknowledged that he did not formally assess the claimant’s psychiatric issues, the doctor
stated that “the people down at the mental health center” had given the claimant a diagnosis of
major depression. Accordingly, Dr. Goff included in his diagnosis: “Major Depressive Disorder,
Recurrent, with Psychotic Features by History.” Dr. Goff noted that, in combination with the
claimant’s psychiatric difficulties and cognitive disorder, the claimant had a severe impairment.
(R. 445). Noting the claimant’s “long history of uncontrolled hypertension,” and referring to his
“right-sided weakness and right-sided deficits in dexterity,” the doctor stated: “I think quite likely
he has had a stroke.” (R. 444-45).
In his Medical Source Statement (Mental), Dr. Goff found extreme deficits in the
claimant’s ability to understand, remember, and carry out complex instructions and in his ability
to understand, remember, and carry out repetitive tasks. He found marked deficits in the
following: constriction of interests; ability to understand, remember, and carry out simple
instructions; ability to maintain attention and concentration for extended periods; ability to
perform activities within a schedule, maintain regular attendance, and be punctual with
customary tolerances; and ability to respond to customary work pressures. The other deficits
were mild to moderate. Dr. Goff found that these impairments caused limitations that have
lasted or can expect to last for 12 months or longer. (R. 446-448).
The ALJ Hearing
The ALJ held a hearing on August 17, 2012. (R. 39-64). At the hearing, the claimant’s
attorney asked the ALJ to evaluate his client under the listing of § 202.09 based on his functional
illiteracy and history of unskilled work. He did not mention any other listing as applicable. The
attorney pointed to the claimant’s “chronically uncontrolled hypertension” accompanied by
cognitive loss and psychological problems and argued that the combination of physical and
mental conditions resulted in the claimant’s inability to work. (R. 44).
The claimant testified that he was disabled because of uncontrolled hypertension and
cognitive loss. The claimant also reported anger management difficulties and difficulty
understanding, remembering, and carrying out instructions. (R. 56).
The claimant testified that he did not graduate from high school, but that he did complete
the 11th grade, noting that he did not participate in special education or alternative schooling.
The claimant testified that he was divorced and lived with a friend. The claimant also stated that
he has two children, but that he did not know their ages. The claimant further stated that he did
not read or write very well. The claimant also reported that he had worked several jobs as an
assembler. (R. 46-48).
The claimant testified that, while he was incarcerated, he did not have a particular job.
However, he did report that for approximately two of the five years in prison, he was on a
cleaning crew and picked up paper. The claimant’s attorney stated to the ALJ that the client had
been hospitalized twice while in prison because of his blood pressure, listing the hospitalization
dates of August 22, 2008, and March 5, 2010 . (R.48-49).
The claimant testified that he has memory loss, and that he needs help remembering to
take his medications and taking a bath. The claimant also stated that he becomes dizzy while
standing and bending, requiring him to sit down or lie down. The claimant further testified that
his blood pressure stays elevated. The claimant reported having shortness of breath and dizziness
while walking from the parking lot into the ALJ hearing and walking to a friend’s house down
the block. (R. 49-51). As far as household chores, he has a difficult time finishing those tasks
because such activity caused his blood pressure to rise, and he became dizzy and short of breath.
(R. 54 & 57). The claimant described having two to three bad days a week that require him to sit
or lie down, not do anything, and isolate himself from others. The claimant also testified that he
had problems being around others, so he isolates himself. He described himself as being
nervous all the time and testified as well that both hands shake, which makes shaving difficult.
At the hearing, the vocational expert, William A. Crunk, testified that, a hypothetical
individual with the claimant’s age, education, work experience, and condition before April 12,
2011 with some dementia, and a history of hypertension with some fluctuation, and a history of
depression and anger management, could perform work in the national economy. The
hypothetical acknowledged that a question existed about functional literacy in terms of reading
but the ALJ noted that “math can be done ... [s]o I would probably be more inclined to go with
your limited testimony limitations.” The hypothetical also assumed that the individual could
perform light work and would “have to avoid heights, dangerous situations with moving
machinery, and anything that would be prohibited by hypertensive episode.” The vocational
expert testified that such an individual could perform occupations such as a laundry worker, with
4,700 positions available in Alabama and 240,000 nationally; a cleaner, with 6,000 jobs in
Alabama and 450,000 nationally; and a hand packer with 2,600 jobs in Alabama and 256, 000
nationally. (R. 58-60).
As a second hypothetical, the ALJ further asked the vocational expert to consider the
same information as before–age, education, work experience, and capacities–but included an
assumption that the individual
would be able to understand and remember simple instructions, but would have
difficulty with detailed and complex; could carry out short and simple instructions
and attend concentration for two hour periods on simple tasks, with customary
breaks to rest; could benefit from a flexible schedule, but may miss one to two
days a month due to psych-like symptoms. The interaction is contact with the
public would be causal; criticism and feedback from supervisors and coworkers in
the workplace would be casual and not confrontational. Changes [ ] gradually,
and the individual may need assistance in setting realistic [inaudible].
(R. 60-61). The vocational expert responded “No,” but because the end of the hypothetical is
inaudible, the record does not make clear whether the expert is responding “no” as in no work
existed or “no” as in the changes would not preclude work.
As a third hypothetical, the ALJ added to the factors above that the hypertensive issue is
more consistently high with difficulty controlling it; hand-shaking; dizziness, and shortness of
breath. The expert responded that no jobs would exist under hypothetical three.
As a fourth hypothetical, the ALJ asked whether an individual with the factors listed in
the first two hypotheticals but with an increase in depressive symptoms as well as difficulty being
around people. Under the fourth hypothetical, according to the expert, the individual would not
be able to work. (R. 58-62).
In a fifth hypothetical, the claimant’s attorney asked whether if the individual “would
likely miss another day on physical conditions on average per month, would this individual be
able to sustain substantial gainful activity?” The VE replied that if the individual would miss at
least two or more days per month, he would not be able to work. (R. 62).
The ALJ’s Decision
The ALJ issued a partially favorable decision on September 21, 2012. (R. 20-38).
In support of her findings, the ALJ first noted that the claimant met the insured status
requirements of the Social Security Act through December 31, 2010. Second, the ALJ also noted
that the claimant had not engaged in substantial gainful activity since the amended onset date.
Third, the ALJ found that since the amended onset date of disability, November 29, 2010,
the claimant had the following severe impairments: hypertension and depression. (R. 26). The
ALJ also noted that the claimant had a history of alcohol abuse, but no evidence existed of abuse
since 2004. Thus, the ALJ determined that the claimant’s alcohol abuse was a non-severe
impairment and not material. (R. 27).
Fourth, the ALJ found that since the amended onset date of disability, the claimant did
not have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments. In supporting her decision, the ALJ specifically
considered the listed impairments and criteria under Listings 4.00 (cardiovascular systems), and
12.04 (affective disorders). The ALJ noted that the evidence showed that the claimant’s
symptoms did not meet the criteria, as no evidence existed of loss of function or impairment that
interfered very seriously with the claimant’s ability to independently initiate, sustain, or complete
activities. (R. 27).
Fifth, the ALJ determined that, prior to April 12, 2011, the date the claimant became
disabled, the claimant had the residual functional capacity to perform light work, as defined by
the Social Security Act with the following limitations: no working around heights, dangerous, or
moving machinery. In making this determination, the ALJ specifically noted that the assessment
of the claimant’s RFC allowed for many of his subjective complaints and limitations. However,
the ALJ applied the pain standard to the subjective complaints and found that the claimant’s
allegations and subjective complaints on some matters, such as the extent of dizziness and
shaking of hands and light-headedness that he suffered and their effect on his daily activities,
were not fully credible when considered in light of the claimant’s own description of his
activities set out in reports and hearing testimony.
In considering these alleged symptoms, the ALJ gave the following reasons for finding
not fully credible the claimant’s allegations that he is unable to perform an significant work
activities on a sustained basis: (1) the claimant’s “described daily activities [ ]are not limited to
the extent one would expect, given the complaints of disabling symptoms and limitations”; (2)
the claimant completed his assigned work detail while incarcerated; (3) the claimant gave
differing reasons for not returning to work; and (4) the claimant testified to two hospitalizations
while incarcerated, but the evidence only documents one hospitalization.
As to the described daily activities, the ALJ found that they were not limited to the extent
that one would expect, given the complaints of disabling symptoms and limitations. The ALJ
noted that the claimant reported being completely independent in participating in activities of
daily living and personal hygiene, except that his hands shook, making shaving difficult.
Nevertheless, the ALJ noted that the claimant reported “shopping, watching television, preparing
microwaveable foods, cleaning his room, going out of the home two to three times a week, and
riding in a car (no driver’s license).” (R. 29).
As to the prison job, the ALJ focused on the claimant’s report acknowledging, according
to the ALJ, that while he was incarcerated, he completed his assigned work details. As to the
inconsistencies in work history, the ALJ pointed to what she characterized as contrary
statements, explaining that the claimant described in his Function Report (Exhibit 3E) being fired
for spitting on the floor but stated elsewhere that he “described not returning to work due to his
hypertension.” (R. 29). Finally, the ALJ noted that the claimant testified that he had two
admissions while incarcerated, but, according to the ALJ, “the evidence only documents one. He
was hospitalized in 2005, which was well before his incarceration.” (Id.).
The ALJ ultimately determined that the claimant’s symptoms and subjective complaints
were not fully credible, because they were not consistent with the objective medical evidence and
other evidence. (R. 29).
In addition to these subjective complaints, the ALJ addressed the claimant’s assertion of
severe hypertension that was not adequately controlled by medication. The ALJ noted the
examination by Robert MacGregor, M.D. on January 22, 2011. During the examination, the
claimant reported dizziness and frequent headaches, but upon examination the claimant could
walk and move without difficulty. The ALJ noted that during the examination, the claimant had
a normal cardiac examination, normal sensory, and was neurologically intact. Acknowledging
that Dr. MacGregor took a blood pressure reading of 220/120 and “advised [the claimant] to go
to the emergency room if his blood pressure remained elevated,” the ALJ proceeded to explain
that “[o]therwise, claimant had a normal examination.” The ALJ noted that the claimant was
seen on April 13, 2011, with “severe hypertension with dizziness, headaches, and pain.”
Therefore, the ALJ found that, prior to April 12, 2011, the claimant’s hypertension was
controlled with oral medications, finding that the claimant was able to perform a modified range
of light work activity. (R. 29).
The ALJ also gave great weight to the opinion of Paul Davis, Ph.D. The ALJ noted that,
during the examination at the request of the Agency, the claimant reported that he left his job
secondary to elevated blood pressure and that his doctor had not cleared him to return to work.
However, the ALJ pointed out again, that the claimant reported on his function report that he was
fired for spitting on the floor. (Exhibit 3E). The ALJ further noted that the claimant reported to
Dr. Davis being depressed, but that he was taking no medications; the claimant also described
poor sleeping habits, only sleeping 45 minutes per day. The ALJ found the claimant’s reports
inconsistent with the function report, which, according to the ALJ, stated that the claimant had
normal sleep behavior, no history of special education services, and had made no allegations of
poor reading or writing skills. (R. 30).
The ALJ found Dr. Davis’s diagnosis of major depression, but ability to interact
appropriately with supervisors, co-workers, and work pressures, consistent with the overall
objective medical evidence. The ALJ found that as of April 2011, the claimant’s symptoms
exacerbated to the point of disabling symptoms; thus, the ALJ gave great weight to Dr. Davis’s
assessments. (R. 30).
The ALJ also considered the findings and opinion of DDS consultant Robert Estock,
M.D. Dr. Estock determined the claimant’s limitations to be mild. The ALJ determined that
these findings were consistent with the record as a whole. The ALJ noted that the record was
clear that the claimant’s symptoms were mild to moderate, up until April 12, 2011. Under these
circumstances, the ALJ gave the opinion of Dr. Estock great weight. (R. 30).
The ALJ ultimately found that, prior to April 12, 2011. the objective medical evidence
clearly supported a residual functional capacity for light work except no working around heights,
dangerous or moving machinery, etc.; the ALJ concluded that the claimant was not disabled prior
to April 12, 2011. (R. 30).
Sixth, the ALJ found that, in combination with his hypertension reported on April 13,
2011 and depression, the claimant’s alleged disability would preclude performance of work in
terms of absenteeism and staying on tasks more than 80% of the day. Thus, the ALJ determined
that the claimant’s disability began April 12, 2011. (R. 31). In reaching this decision, the ALJ
found that, beginning April 12, 2011, the claimant’s allegations regarding his symptoms and
limitations were generally credible. (R. 31).
The ALJ stated that the claimant’s objective medical evidence established, beginning on
April 12, 2011, that the claimant’s symptoms exacerbated to the point of disability. The ALJ
noted that the claimant presented himself to Indian Rivers Mental Health Clinic on April 12,
2011, with significant depressive symptoms. At the appointment, the doctor noted that even with
psychotropic medications, the claimant only had a tiny change in his symptoms; and that the
claimant’s GAF ranged from 36 to 48, which indicated serious to very serious problems. (R.31).
In support of the claimant’s disability date, the ALJ noted the examination by Dr. John
Goff, Ph.D., on November 21, 2011. During this examination, Dr. Goff indicated significant
problems with claimant’s memory and concentration secondary to depression. Dr. Goff noted
that the claimant was functionally illiterate, very depressed, and suffered from marked deficits in
his ability to maintain concentration, persistence for extended periods, performing activities
within a scheduled time, and ability to respond to customary work pressures. (R. 31).
The ALJ considered the findings and opinions of Dr. Goff to be consistent with the
overall objective medical evidence. The ALJ noted that the record clearly showed that beginning
in April 2011, the claimant had marked to extreme limitations associated to his depression and
cognitive disorder. The ALJ concluded that the findings were supported by the mental health
treatment notes and Dr. Goff’s mental status examination. Therefore, the ALJ gave great weight
to Dr. Goff’s assessments. (R. 31).
Seventh, the ALJ found that since November 29, 2010, the claimant was unable to
perform any past relevant work. The ALJ noted that the demands of the claimant’s past relevant
work exceeded the residual functional capacity. (R. 32).
Eighth, the ALJ found that prior to April 12, 2011, considering the claimant’s age,
education, work experience, and residual functional capacity, jobs existed in significant numbers
in the national economy that the hypothetical person could perform. Based on the vocational
expert’s testimony, the ALJ determined that a finding of “not disabled” was appropriate, prior to
April 12, 2011. (R. 32-33).
The ALJ further found that beginning on April 12, 2011, considering the claimant’s age,
education, work experience, and residual functional capacity, no jobs existed in significant
numbers in the national economy that the hypothetical person could perform. Based on the
vocational expert’s testimony, the ALJ concluded that a finding of “disabled” was appropriate
under the framework of the Medical-Vocational Guidelines, as of April 12, 2011. (R. 33).
Lastly, the ALJ determined that the claimant was not disabled prior to April 12, 2011, but
became disabled on that date, and continued to be disabled through the date of the ALJ’s
decision. The ALJ noted that the claimant was not under a disability within the meaning of the
Social Security Act at any time through December 31, 2010, the date last insured; setting the date
of disability four months after the last insured date meant that the claimant was ineligible for
disability insurance benefits. (R. 33).
On November 21, 2012, the claimant’s counsel hand delivered a letter to the Appeals
Council appealing the ALJ’s decision, and asserting that substantial evidence did not support it.
In a Notice of Appeal Council Action dated July 17, 2014, the Appeals Council denied
the claimant’s request for review. (R. 1-4).
The claimant argues that the ALJ failed to properly consider listing 12.05C (Mental
retardation) of the regulations; and that substantial evidence fails to support the ALJ’s RFC
A. 12.05C Listing
The claimant argues that his impairments met subsection C of Listing 12.05, and that the
ALJ failed to properly consider the listing. The Commissioner argues that the claimant failed to
Although the claimant’s brief did not have a separate section challenging the ALJ’s RFC
finding, the claimant’s brief discussed the RFC findings and pointed out alleged errors in them.
The Commissioner’s brief acknowledged the challenge to the RFC findings and addressed that
notify the ALJ that he should apply listing 12.05C, and, alternatively, that the claimant does not
meet that listing.
At the time of the ALJ’s decision on September 21, 2012, Listing 12.05C stated4:
Mental retardation: Mental retardation refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested
during the developmental period, i.e., the evidence demonstrates or supports
onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in
A, B, C, or D are satisfied.
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical
or other mental impairment imposing an additional and significant work-related
limitation of function.
20 C.F.R. pt. 404, subpt P, app 1, § 12.05 (2012). To be considered for disability benefits under
section 12.05, a claimant must at least (1) have significantly subaverage general intellectual
functioning; (2) have deficits in adaptive behavior; and (3) have manifested deficits in adaptive
behavior before age 22.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997) (emphasis
Although the claimant now asserts that the ALJ failed to consider Listing 12.05C, the
claimant did not allege mental retardation in his disability application, and the only Listing that
the claimant’s attorney mentioned at the hearing was Listing 12.02. Neither the claimant nor his
attorney referred to the claimant’s IQ score in the application or at the hearing, and did not
otherwise notify the ALJ that they were alleging disability pursuant to mental retardation or
intellectual disability. Further, in the claimant’s hearing testimony, he stated that he did not
On August 1, 2013, the SSA changed the terminology in Listing 12.04 from “mental
retardation” to “intellectual disability.” 78 Fed. Reg. 46, 499-01 (Aug. 1, 2013); see Hickel v.
Comm’r of Soc. Sec., 539 F. App’x 980, 982 n.2 (11th Cir. 2013) (acknowledging change).
participate in special education or alternative schooling; that testimony would be relevant to the
12.05C requirement that the intellectual deficits manifested before age 22.
When the claimant fails to bring the ALJ’s attention to a specific listing, the ALJ has no
obligation to specifically discuss whether the claimant’s impairments meet or equal a specific
listing. Robinson v. Astrue, 365 F. App’x 993, 995 (11th Cir. 2010). Furthermore, the ALJ need
not search the record for other impairments that might be disabling that have not been identified
by the claimant. Street v. Barnhart, 133 F. App’x 621, 627 (11th Cir. 2005). The ALJ is under
no obligation to investigate a claim not presented at the time of the application for benefits, and
not offered at the hearing as a basis for disability. Pena v. Chater, 76 F.3d 906, 909 (8th Cir.
Applying this law to the instant case, the court FINDS that, under these circumstances,
the ALJ did not err in failing to consider Listing 12.05C when evaluating the claimant. Neither
the disability application nor arguments and testimony at the hearing placed the ALJ on notice
that Listing 12.05C should be considered. Without such notice, the ALJ had no obligation to
search the record for a 12.05C impairment.5
B. RFC Prior to April 12, 2011
The claimant also challenges the ALJ’s findings that the claimant’s conditions
The court notes that the claimant’s low IQ scores would not necessarily mean that
12.05C applied to the claimant. Section 12.05’s introductory paragraph, which the claimant’s
brief ignores, requires, among other things, that the intellectual deficit manifest itself before age
22. Evidence in the record submitted to the ALJ, such the claimant’s lack of special education
classes when he was in school and Dr. Goff’s evaluation that the claimant’s cognitive disorder
was “probably associated with a CVA” (R. 444-45), would be consistent with onset of the
impairment after the developmental period and would not be consistent with the applicability of
represented mild to moderate limitations on work or activities of daily living prior to April 12,
2011. The claimant asserts instead that his hypertension was severe long before that date, and
that his severe hypertension combined with his symptoms and cognitive loss resulted in disability
prior to April 12, 2011, and, presumably, prior to his last insured date of December 31, 2010.
This court does indeed find perplexing the ALJ’s determination that, before April of
2011, the record fails to document any major problems with hypertension as long as the claimant
was taking appropriate medication. The court recognizes that the February 2005 hypertensive
crisis occurred when the claimant was noncompliant with blood pressure medication. However,
the ALJ’s characterization of the claimant’s blood pressure condition between March 2005 and
April 2011 as responsive to oral medications with an absence of major problems is not accurate.
Contrary to the ALJ’s finding, the medical charts in the record after February of 2005
show repeated incidents of high blood pressure with no indication that the claimant was
noncompliant with medications: May 2005–readings of 142/67, 151/103, 174/122 (accompanied
by dizziness); March 13, 2007–220/120 (accompanied by headaches, dizziness, and vision
problems); March 15, 2007–210/130; June 18, 2007–145/102 & 204/133 (accompanied by
headaches; notation to continue current meds); June 22, 2007–220/120 (accompanied by severe
headaches, dizziness, and vision problems); August 22, 2008– 175/112; [the record reflects no
blood pressure readings, normal or abnormal, for 2009]; February 2010–126/81; March 2010 of
160/100 (accompanied by dizziness and “feeling bad”); July of 2010–124/84; September of
2010– 136/84; January 22, 2011–220/120. Despite these readings, five of which reflect a systolic
blood pressure reading over 200, the ALJ “find[s] that prior to April 12, 2011 his hypertension
was controlled with oral medications.” (R. 29).
The court can find no meaningful distinction between many of these pre-April 12, 2011
incidents, with 200 plus systolic readings accompanied with headache and/or dizziness, and the
April 13, 2011 reading of 217/141 with dizziness and headaches. Further, the ALJ’s
characterization of the claimant’s pre-April 12, 2011 hypertension as “controlled” runs counter
not only to the high readings but also to the notations in the charts indicating that the claimant
was asked to stay in the clinic for monitoring (R. 222), and that, at one point, he was told to
return to the infirmary weekly. (R. 236).
Finally, the ALJ’s finding that the claimant’s hypertension was controlled before April of
2011 is contrary to Dr. MacGregor’s treatment notes in January of 2011, shortly after the last
insured date. Dr. MacGregor’s diagnosis of “hypertensive urgency” with a direction that the
claimant should go to the emergency room if his blood pressure remained at the elevated level is
not compatible with the ALJ’s characterization of the claimant’s condition as “controlled.” (R.
342). The ALJ’s statement that the doctor advised the claimant to go to the emergency room if
his blood pressure remain high but “[o]therwise, claimant had a normal examination,” is
another example of the ALJ’s trivializing the claimant’s serious health issues; in phrasing akin to
the proverbial “other than THAT, Mrs. Lincoln, how was the play?” the ALJ ignores Dr.
MacGregor’s serious diagnosis of “hypertensive urgency.” In short, the ALJ’s opinion ignores
and trivializes the evidence of claimant’s serious hypertensive problems existing before the last
insured date; substantial evidence does not support the ALJ’s opinion to the extent that the ALJ
finds that a meaningful change occurred in the claimant’s hypertensive condition from April 12,
In addition, the court finds that substantial evidence does not support the ALJ’s pain
standard analysis discrediting many of the claimant’s subjective complaints and supporting the
ALJ’s RFC. In evaluating pain and other subjective complaints, the Commissioner must
consider whether the claimant demonstrated an underlying medical condition, and either (1)
objective medical evidence that confirms the severity of the alleged pain arising from that
condition, or (2) that the objectively determined medical condition is of such a severity that it can
reasonably be expected to give rise to the alleged pain. Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991). If the ALJ decides to discredit the claimant’s testimony as to his [subjective
complaints], she must articulate explicit and adequate reasons for that decision; failure to
articulate reasons for discrediting claimant’s testimony requires that the court accept the
testimony as true. Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995).
Here, the court finds that the articulated reasons for discrediting the claimant’s testimony
are not adequate. The ALJ noted the claimant’s subjective allegations, such as that he was “dizzy
with standing and bending [and] walking to a friend’s house down the block,” that “walking from
the parking lot he had shortness of breath and dizziness,” that he had “two to three bad days a
week that requires him to lie down,” and “that his hands shake, which makes it difficult to
shave.” (R. 28-29). In considering these alleged symptoms, the ALJ gave the following
reasons6 for finding not fully credible the claimant’s allegations that he is unable to perform an
The court notes that the ALJ also stated in the section of her opinion discussing the
claimant’s mental status that the claimant’s description of sleep problems to Dr. Davis (45
minutes per day (R. 345)) was contrary to “his own function report [where h]e reported normal
sleep behavior.” (R. 30). However, the ALJ’s statement is not accurate. In the Function Report,
the claimant reported that his normal routine was going to sleep at 2-3 AM and waking at about 5
AM. (R. 191). Although 2-3 hours of sleep is more than the 45 minutes of sleep that the
claimant reported to Dr. Davis, that amount of sleep is not “normal sleep behavior” and is
consistent with sleep problems.
significant work activities on a sustained basis: (1) the claimant’s “described daily activities ...
are not limited to the extent one would expect, given the complaints of disabling symptoms and
limitations”; (2) the claimant completed his assigned work detail while incarcerated; (3) the
claimant gave differing reasons for not returning to work; and (4) the claimant testified to two
hospitalizations while incarcerated, but the evidence only documents one hospitalization in 2005,
before his incarceration. (R. 29).
The daily activities that the claimant described in his function report were watching tv;
dressing himself, but routinely using a seat during the dressing process; bathing and grooming
himself, but using a shower chair to avoid falling and having difficulty shaving because of
shaking hands; preparing easy dinners such as tv dinners and other microwave-able meals, cold
cuts, and finger foods; making his own bed and cleaning his room but doing the process slowly
in a one-to-two-hour period; shopping for food twice a month but he does not reflect that he
shops independently; and riding in a car two or three times per week with someone else driving.
In his hearing testimony, the claimant testified: “[w]hen I try to do little things around the
house, you know, it runs my blood pressure up. I be about to pass out. I have shortness of
breath.” (R. 49). He further testified that he became dizzy when he goes from sitting to standing,
when he remains standing for a short period of time, when he bends over, and when he walks
short distances, such as from the parking lot to the hearing room or to a friend’s house down the
street. He explained that he had two to three bad days a week when he lies and/or sits down and
isolates himself from other people. As to doing chores around the house, such as cleaning his
room, his chores take two hours or longer because he becomes sick and dizzy. As he stated in his
function report, both hands shake when he attempts to shave. (R. 52, 54-58).
Contrary to the ALJ’s opinion, this information reflects that the claimant’s daily
activities are very limited, and those activities are not inconsistent with complaints of disabling
symptoms and limitations.
As to the ALJ’s reference to the claimant’s completing job assignments when
incarcerated, the claimant’s testimony was that he worked about two of the five years when
incarcerated “doing a little cleaning and stuff like that, but other than that, I didn’t do [a job].”
The claimant explained that by cleaning, he meant that he picked up paper. (R. 48-49). The
court notes that the prison records do not reflect when the claimant worked, but the health charts
of prison doctor Dr. Tahir Saddiq indicated that he treated the claimant for hypertension,
headaches, high blood pressure, and dizziness beginning in 2007. Because the claimant
apparently went to prison sometime in 2005, the prison charts reflecting treatment for
hypertension and dizziness beginning in 2007 would be consistent with the claimant’s assertion
that hypertension and dizziness prevent him from working, that the prison health system
appeared to acknowledge these health problems as of 2007, and that the prison system only
required him to work about two years out of the five that he was incarcerated. In any event, the
claimant’s testimony about the nature and extent of his prison work through his discharge from
prison in December of 2010, particularly his statement that the prison did not make him work
three of the five years he was incarcerated, is not inconsistent with the claimant’s allegations of
disability prior to December 31, 2010.
As to the ALJ’s opinion that the claimant is not credible because he gave conflicting
statements about why he left his job, the ALJ mischaracterizes the claimant’s statements to
establish inconsistency where none exists. The ALJ points to the claimant’s statement in his
Function Report, which says, in response to a question whether he had ever been fired, that he
was fired from Franklin Transportation for allegedly spitting on the floor. (R. 196). In the
Disability Report the claimant submitted to the Agency, he stated that in February of 2005, he
left his last employment with Johnson Control because of his conditions of “1. Hbp; stroke;
headaches; dizziness; depression; 2. memory loss, 3. carpal tunnel.” (R. 185). The ALJ
incorrectly conflated two different work situations into one, when the claimant clearly identified
two different employers in the reports, and different reason(s) for leaving each. The reports were
not inconsistent, but the ALJ mistakenly characterized them to be so, and twice mentioned this
“inconsistency” in the section of her opinion discussing the claimant’s RFC for the period prior
to April 12, 2011. The ALJ’s own error cannot form an appropriate basis for a pain standard
The ALJ’s final reason for challenging the claimant’s credibility is that the claimant
testified to having two hospital admission while incarcerated when the record only documents
one hospitalization before incarceration. The court first notes that the claimant did not testify to
two hospital admissions while incarcerated: the claimant’s attorney made a statement at the
hearing that the claimant had been hospitalized on August 22, 2008 and on March 5, 2010, both
dates occurring during the period he was in prison. (R. 50). While the record reflects high
blood pressure readings on those days, it does not reflect hospital admissions on either of those
days. The court notes that the record contains many holes in the claimant’s health history,
particularly in the prison health records. In any case, the fact that the claimant’s attorney may
have mis-spoken does not provide support for the ALJ’s finding that the claimant himself is not
In sum, the reasons that the ALJ gave for finding that the claimant’s statements about the
intensity, persisting and limiting effects of his subjective complaints were not credible fail to
support that finding; the ALJ’s application of the pain standard was improper, and substantial
evidence does not support her finding that the claimant’s subjective testimony regarding
dizziness, hand-shaking, and other subjective effects of hypertension is not credible.
The court returns to the third hypothetical, which asked the VE to assume, among other
things, that the hypothetical person’s “hypertensive issue is such that it is a more consistent high
reading; that there is difficulty controlling it, and that it causes some hand shaking, some
dizziness, some shortness of breath. Would there be jobs?” (R. 61). The expert responded that
no jobs would exist under this hypothetical. In light of this court’s findings, added to this
hypothetical, the court FINDS that substantial evidence does not support the ALJ’s opinion.
For the reasons stated above, the court FINDS that the ALJ’s determination regarding the
claimant’s condition prior to April 12, 2011 is not supported by substantial evidence on the
record as a whole. Accordingly, this case is due to be is REVERSED and REMANDED to the
Commissioner for further action consistent with this opinion.
Dated this 2nd day of March, 2016.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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