Jordan v. Astrue

Filing 21

Order ent. that the decision of the Commissioner of Social Security, denying Plaintiffs claim for a period of disability and disability insurance benefits, be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/27/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHERRI K. JORDAN,

*
*
Plaintiff,
*
*
vs.
*
*
MICHAEL J. ASTRUE,
*
Commissioner of Social Security, *
*
Defendant.
*

CIVIL ACTION 11-00302-B

ORDER
Plaintiff Sherri K. Jordan (“Plaintiff”) brings this action
seeking judicial review of a final decision of the Commissioner
of Social Security denying her claim for a period of disability
and disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. § 401, et seq.

On March 26, 2012, the

parties consented to have the undersigned conduct any and all
proceedings

in

this

case.

(Doc.

18).

Thus,

the

action

was

referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636 (c).
(Doc.

19).

Oral

argument

was

waived.

Upon

careful

consideration of the administrative record and the arguments and
briefs of the parties, it is hereby ORDERED that the decision of
the Commissioner be AFFIRMED.

I.

Procedural History
Plaintiff protectively filed applications for a period of

disability

and

disability

insurance

benefits

on

February

21,

2007. (Tr. 166). Plaintiff alleges that she has been disabled
since October 4, 2004, due to bipolar disorder. (Id. at 56, 153,
165). Plaintiff’s applications were denied at the initial stage
and upon reconsideration.

(Id. at 102-06).

She filed a timely

Request for Hearing before an Administrative Law Judge (“ALJ”).
(Id. at 109).

On June 8, 2009, Administrative Law Judge Ricardo

Ryan

administrative

held

an

hearing,

which

was

attended

by

Plaintiff, her attorney, and vocational expert, Barry Murphy.
(Id. at 46-69). The ALJ determined that Plaintiff should be
evaluated
continued.

by

a

psychologist.

Therefore,

the

hearing

was

ALJ Ryan held a second administrative hearing on

October 26, 2009, which was attended by Plaintiff, her attorney,
and

vocational

expert,

Sue

Berthaume.

(Id.

at

25-44).

On

November 3, 2009, the ALJ1 issued an unfavorable decision finding
that Plaintiff is not disabled.

(Id. at 11-24).

Plaintiff’s

request for review was denied by the Appeals Council (“AC”) on
April 13, 2011.

(Id. at 1-6).

1

The opinion was signed by ALJ Ben E. Sheely, on behalf of
ALJ Ryan.

2

The parties agree that this case is now ripe for judicial
review and is properly before this Court pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3).
II.

Issue on Appeal
Whether the ALJ erred in rejecting the opinions of
Plaintiff’s treating psychiatrist?

III. Factual Background
Plaintiff was born on February 12, 1967, and was forty-two
(42) years of age at the time of both administrative hearings.
(Tr. 28, 49, 96-98, 145).

She has a 12th grade education and

past relevant work (“PRW”) as a
(Id. at 175, 191, 234).
in

2004

as

a

counter

clerk, cashier, and bagger.

According to Plaintiff, she last worked
clerk

at

a

drycleaners.

Plaintiff took a medical leave from the position.

(Id.

at

54).

(Id.).

At the June 8, 2009 hearing, Plaintiff testified that she
is 5’1” and weighs 170 pounds, which is approximately 55 pounds
above her normal weight.

Plaintiff attributed her weight gain

to her current medications.
Plaintiff

further

(Id. at 50).

testified

that

she

resides

with

her

parents and her two children ages 8 and 13. (Id. at 51, 57).
According to Plaintiff, she experiences a lot of anxiety, but
does well with her parents, children, and other family members
with whom she lives.

(Id. at 57-58).

Plaintiff reported that

she takes medications to prevent her from “going into mania.”

3

(Id. at 58).
engages in
behavior.

According to Plaintiff, when she is “manic”, she

reckless behavior such as drug use and risky sexual
(Id. at 58-59).

Plaintiff testified that she last

experienced “true mania” in October 2004, and she had a slight
case of “mania” which lasted about a week and a half at the end
of 2007.

(Id.).

Plaintiff acknowledged that she is stable on

her medications, that “the medicines are working,” and that she
is able to perform daily activities.

(Id. at 60-64).

Plaintiff

testified that she can perform most household chores, including
cleaning the house, occasionally cooking for her children, and
doing laundry.

She further testified that she does not go out

often, and that she is generally at home taking care of her
children

or

reading

books.

(Id.

at

63-64).

Additionally,

Plaintiff testified that her parents take care of her financial
obligations.

(Id. at 52).

At the October 26, 2009 hearing, Plaintiff confirmed that
her last “manic” episode was in December 2007 and that it lasted
about two weeks.

Plaintiff also testified that she has been on

Risperdal2

or

stable.”

three

four

(Id. at 30-31).

years,

and

it

“keeps

[her]

pretty

Plaintiff further reported that she

2

Risperdal is used to treat schizophrenia and symptoms of
bipolar disorder (manic depression). See http://www.drugs.com/
risperdal.html. (Last visited September 27, 2012).

4

takes Trazodone3 at night to help her sleep, and because the
medicine

makes

migraines,

she

her
is

sleepy,
not

sluggish,

able

to

and

work.

tired

(Id.

at

and
32,

causes
36-37).

According to Plaintiff, she generally takes a nap during the
day, but she can forgo a nap if she has to go somewhere.

(Id.

at 37-38).
IV.

Analysis
A.

Standard Of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).4

Martin v. Sullivan, 894 F.2d

A court

may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.

3

Trazodone is a serotonin modulator used to treat
depression. See http://www.nlm.nih.gov/medlineplus/druginfo/meds
/a681038.html (Last visited September 27, 2012).
4

This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
5

Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S.

Dist. LEXIS 10163

(S.D. Ala. 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits must prove his disability.
416.912.
substantial

20 C.F.R.

§§ 404.1512,

Disability is defined as the “inability to do any
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.

416.905(a).

§§

423(d)(1)(A),

20

C.F.R.

404.1505(a),

20

C.F.R.

The Social Security regulations provide a five-step

6

sequential evaluation process for determining if a claimant has
proven her disability.

20 C.F.R. §§ 404.1520, 416.920.5

In the case sub judice, the ALJ determined that Plaintiff
met

the

non-disability

requirements

benefits through September 30, 2009.

for

disability

(Tr. 16).

insurance

The ALJ found

that Plaintiff has not engaged in substantial gainful activity
since her alleged onset date.

(Id.)

The ALJ concluded that

while Plaintiff has the severe impairment of bipolar disorder,

5

The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
impairment or combination of impairments.
If, at the third
step, the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; (4) the claimant’s
age, education and work history. Id. at 1005. Once a claimant
meets this burden, it becomes the Commissioner’s burden to prove
at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
If the Commissioner can demonstrate that there are such jobs the
claimant can perform, the claimant must prove inability to
perform those jobs in order to be found disabled.
Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

7

it does not meet or medically equal the criteria for any of the
impairments

listed

Regulations No. 4.6
The

ALJ

in

20

C.F.R.

Pt.

404,

Subpt.

P,

App.

1,

(Id. at 16-18).

concluded

that

Plaintiff

retains

the

residual

functional capacity (“RFC”) to perform a full range of work at
all exertional levels. The ALJ also determined that Plaintiff
has the following non-exertional limitations: she is limited to
work which only requires her to perform simple (one and two
step) routine tasks; to occasionally interact with the general
public;

to

have

non-confrontational

supervision;

to

work

independently (although she can work in close proximity to coworkers); and to have occasional changes in the routine work
setting.

(Id. at 18-19).

The ALJ next determined that while Plaintiff’s medically
determinable impairments could reasonably be expected to produce
the alleged symptoms, her statements concerning the intensity,
persistence, and limiting effects of the alleged symptoms were
not credible to the extent they are inconsistent with the RFC
assessment.

(Id. at 19).

The ALJ concluded that Plaintiff’s

RFC precludes her from performing any of her past work.
22).

(Id. at

Relying on the testimony of the VE, the ALJ concluded
6

The ALJ determined that Plaintiff’s past history of drug
and alcohol abuse, as well as her diagnosed acute bronchitis and
sinusitis, were non-severe impairments. (Id. at 16-17).

8

that, considering Plaintiff’s RFC and vocational factors, such
as age, education and work experience, Plaintiff is able to
perform
national

other

jobs

economy

existing
such

as

in

significant

numbers

cleaner/housekeeper,

assembler, and microfilm processor.

(Id. at 23).

in

the

production
The ALJ thus

concluded that Plaintiff is not disabled.
1. Medical Evidence
The relevant evidence of record reflects that Plaintiff was
treated by Singing River Services (“SRS”) November 2004 through
September 2009.

(Tr. 235-313, 339-42, 359-74, 378-91).

While

at SRS, Plaintiff was treated by psychiatrist Roy Barnes, M.D.
(hereinafter

“Dr.

Barnes”)

and

Rose

Marie

Morton,

MMSW

(hereinafter “Ms. Morton”).
Plaintiff was treated at SRS on November 10, 2004 following
a

drug-related

automobile

accident.

Notes

taken

at

intake

reflect that Plaintiff had cocaine and methamphetamine in her
system.

Plaintiff was diagnosed with moderate bipolar disorder,

polysubstance dependence, and sinus problems, and was prescribed
Paxil7,

Risperdal,

and

Seroquel.8

7

Plaintiff

was

directed

to

Paxil is an antidepressant that affects chemicals in the
brain that may become unbalanced and is used to treat
depression, obsessive-compulsive disorder, anxiety disorders,
post-traumatic
stress
disorder
(PTSD),
and
premenstrual
dysphoric disorder (PMDD). See http://www.drugs.com/paxil.html.
(Last visited September 27, 2012).

9

complete

a

twenty-week

continue AA meetings.

Dual

Disorder

Group

Program

(Id. at 241, 245-54).

and

to

Plaintiff was

provided mental health treatment again on December 10 and 28,
2004. (Id. at 241, 274).

During the December 10, 2004 visit,

Plaintiff’s GAF9 score was 60.

(Id. at 241).

At some point, Plaintiff was prescribed Lexapro10, but on
May 17, 2005, she was directed to cease Lexapro and to continue
treatment

with

Seroquel

and

Lithium.11

(Id.

at

270).

A

SRS

8

The record also reflects that in 2001, SRS diagnosed
Plaintiff with ADHD and prescribed Ritalin. (Id. at 246, 394).
9

The Global Assessment of Functioning (GAF) is a numeric
scale (0 through 100) used by mental health clinicians that
measures a patient’s overall level of psychological, social, and
occupational functioning on a hypothetical continuum. A GAF
score of 41-50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or
serious social dysfunction (e.g., no friends, unable to keep a
job). A GAF score of 51-60 suggests 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 coworkers). A GAF score of 61-70 is indicative of mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy,
or
theft
within
the
household),
but
generally
functioning pretty well, has some meaningful interpersonal
relationships.
See
http://www.gafscore.com/.
(Last
visited
September 27, 2012).
10

Lexapro is an antidepressant affecting chemicals in the
brain that may become unbalanced and cause depression or
anxiety. See http://www.drugs.com/lexapro.html. (Last visited
September 27, 2012).
11

Lithium is used to treat the manic episodes of manic
depression by affecting the flow of sodium through nerve and
(Continued)
10

therapist’s treatment notes dated December 8 and December 30,
2005 reflect that Plaintiff reported she had been sober since
beginning

treatment

Katrina.

Her GAF score was noted as 60.

reported

she

medications

was

except

for

compliant

controlled

“manic”

Hurricane

Plaintiff further

medications

and

symptoms.

Plaintiff

monitor

or

adjust

the

day

and

the
also

She was directed to attend the medical clinic at least
to

during

that

weight.

year

sluggish

during

that

a

was

with

relapse

reported

once

she

her

one

prescriptions

gaining

and

to

be

evaluated one-on-one bi-monthly to help learn effective coping
skills and to monitor relapses.

(Id. at 239-40).

The treatment

notes dated September 13 and December 13, 2005

reflect that

Plaintiff was compliant with her medications, and she was doing
well,

although

anxiety

for

she

the

becoming “manic”.

reported

last

that

several

she

weeks

had

and

experienced

could

feel

some

herself

(Id. at 265-67).

The February 21 and May 23, 2006 treatment notes reflect
that

Plaintiff

was

compliant

with

her

medications,

Tegretol,

Trazodone, and Seroquel, and that she was “doing well.”
261,

263).

In

treatment

notes

dated

December

13,

(Id. at

2006,

Ms.

Morton diagnosed Plaintiff with bipolar I disorder, hypomania,

muscle cells in the body. See http://www.drugs.com/lithium.html.
(Last visited September 27, 2012).

11

polysubstance dependence, and sinus headaches, and assigned a
GAF of 65.
Plaintiff

(Id. at 238).
reported

that

The treatment notes also reflect that
she

felt

“slow”

when

taking

her

prescribed medications and often had to force herself to take
them.

Plaintiff also reported that she gets irritable twice a

month

when

taking

her

medication.

Ms.

Morton

noted

that

Plaintiff’s symptoms interfered with her ability to work and
with her social functioning.

(Id.)

On January 2, 2007, Plaintiff reported that Tegretol was
not working.

(Id. at 259, 374).

During April 18 and June 13,

2007 visits, Plaintiff reported that she was doing well on her
current medications.

(Id. at 368-69).

On September 12, 2007,

Plaintiff reported to Dr. Barnes that she felt nervous all the
time and was very anxious.

The October 9, 2007 treatment notes

reflect that Plaintiff reported to Dr. Barnes that she was doing
well.

The notes also reflect that Plaintiff was stable.

(Id.

at 366-67).
On June 28, 2007, Ms. Morton and Dr. Barnes completed an
abilities questionnaire at the request of the Agency.
339-42).

Both

opined

that

Plaintiff

has

“poor”

(Id. at

ability

to

follow work rules, relate to coworkers, deal with the public,
use judgment, interact with supervisors, deal with work stress,
function independently, and maintain attention/ concentration.
(Id. at 341).

They reported that Plaintiff goes into mania
12

under stressful situations, even while on medication, and will
go into rages.

(Id.).

They also reported that Plaintiff does

not handle authority well.
ability

to

understand,

(Id.).

remember

They opined that Plaintiff’s
and

carry

out

complex

job

instructions and detailed, but not complex, job instructions was
“poor,” while her ability to understand, remember, and carry out
simple job instructions was “fair.”
noted

that

Plaintiff

has

extreme

(Id.).
memory

In addition, they
problems,

that

she

cannot concentrate, that she has racing thoughts when manic, and
that she is unable to multi-task. (Id.).

They also noted that

Plaintiff’s ability to maintain personal appearance was “good,”
her

ability

“fair,”

and

to
her

relate

predictably

ability

to

behave

in

social

in

an

manner and demonstrate reliability was “poor.”
The

also

noted

that

Plaintiff

forgets

situations

emotionally

was

stable

(Id.).
her

appointments.

Her family has to remind her to take her medications, and she
often

has

triggered.

anger

or

(Id.).

rage

with

no

cause

which

can

be

easily

Dr. Barnes and Ms. Morton observed that

treatment was helpful to Plaintiff and medications help but do
not fully control moods.

(Id. at 342).

They further observed

that Plaintiff “is learning about the disorder and identifying
triggers, trying to avoid stressful situations which could set
her off.”

(Id. at 342).

13

Plaintiff was evaluated by Dr. Barnes on January 8, 2008
and the treatment notes reflect that she was “doing good” and
was stable.

(Id. at 365).

SRS treatment notes completed by

Patricia J. Wall, M.S., and dated January 11, 2008 reflect that
Plaintiff became manic at the end of 2007 and experienced a
relapse.

(Id. at 361).

During that time, Plaintiff abused

Klonapin, Lortab, and cocaine.
Plaintiff’s GAF score at 45.

(Id.).

(Id.).

Ms. Wall identified

Plaintiff reported she was

on a binge for a week and a half whereas, in the past, her manic
episodes would last for months.
Dr.

Barnes

twice

a

year

(Id.).

to

monitor

She was directed to see
symptoms

and

adjust

medications as needed, to take medications as prescribed, to
report any uncontrolled symptoms or side effects to staff, to
continue individual therapy, and to work toward goals set during
therapy.
On

(Id. at 361-62).
February

Questionnaire,

28,

wherein

2008,
she

Ms.
listed

Morton

completed

Plaintiff’s

a

diagnosis

RFC
as

bipolar I disorder and opined that Plaintiff has no restrictions
in activities of daily living and that she had a “moderate”
degree of difficulty in maintaining social functioning.
376).
“marked”

Ms.

Morton

further

deficiencies

of

opined

that

concentration,

Plaintiff

(Id. at

experienced

persistence,

or

pace

resulting in failure to complete tasks in a timely manner, and
she would experience four or more episodes of deterioration or
14

decomposition in work or work-like settings.

(Id.).

According

to Ms. Morton, in a work setting, Plaintiff was “marked” in her
ability

to

understand,

carry

out,

and

remember

instructions,

respond appropriately to supervision, respond appropriately to
coworkers, perform simple tasks, and perform repetitive tasks.
(Id.).
sex

She listed headaches, sluggishness, tiredness, lack of

drive,

and

medications.

forgetfulness

(Id.

at

377).

as

side-effects

With

respect

of
to

Plaintiff’s
Plaintiff’s

prognosis, Ms. Morton opined that “even with medications, mood
swings

are

inevitable”,

and

that

Plaintiff’s

lifelong condition for which there is no cure.

illness

is

a

(Id.).

Treatment notes dated April 8, July 9, and September 9,
2008 reflect that Plaintiff reported that she was doing well on
her medications.12

(Id. at 384-88).

During a December 9, 2008

visit, Plaintiff asked to discontinue BuSpar13 because it made
her dizzy and break out in a cold sweat.
listed as doing well.

Otherwise, she was

(Id. at 383).

On January 16, 2009, Plaintiff was evaluated by Ms. Morton,
and

diagnosed

with

moderate

bipolar

I

disorder,

hypomanic,

12

During the July visit, Plaintiff reported that Trazodone
made her legs restless.
13

BuSpar is an anti-anxiety medicine that affects chemicals
in your brain that may become unbalanced and cause anxiety. See
http://www.drugs.com/buspar.html. (Last visited September 27,
2012).

15

polysubstance

dependence

in

remission,

and

sinus

headaches.

(Id. at 381).

Ms. Morton noted that Plaintiff experienced mood

swings,

were

which

less

frequent

with

medications,

hypomania

lasting a week, that she feels “down” once a month, and has
daily anxiety, which prevents her from driving.

(Id.).

directed to continue with her current treatment plan

She was
and to

contact a hospital to begin smoking cessation program within the
next three months.

(Id.).

Plaintiff was seen at SRS on June 2, 2009, and she reported
that

she

no

longer

wanted

to

take

valium,

which

effective, and that she sleeps well on Trazodone.

was

not

The treatment

notes reflect that Plaintiff was doing well, was stable, and was
compliant with her medication.

(Id. at 390-91, 401).

Dr. Barnes and Ms. Morton completed a RFC Questionnaire
dated June 3, 2009.
Plaintiff

(Id. at 392-93).

experiences

“mild”

to

In it, they opined that

“moderate”

restrictions

in

activities of daily living, specifically that she is “unable to
manage her own finances,” and a “moderate” degree of difficulty
in maintaining social functioning.
and

Ms.

“marked”

Morton

further

deficiencies

of

opined

(Id. at 392).
that

concentration,

Plaintiff

Dr. Barnes
experienced

persistence,

or

pace

resulting in failure to complete tasks in a timely manner, and
she would experience four or more episodes of deterioration or
decomposition in work or work-like settings.
16

(Id.).

They further opined that in a work setting, Plaintiff had
“marked” limitations in her ability to understand, carry out,
and

remember

limitations

instructions,

in

her

ability

and
to

“moderate”
respond

to

“marked”

appropriately

to

supervision, respond appropriately to coworkers, perform simple
tasks, and perform repetitive tasks.
side-effects

of

Plaintiff’s

(Id.).

medications

Additionally, the
were

headaches, fatigue, dizziness, and forgetfulness.
They

also

noted

that

mood

swings

would

listed

as

(Id. at 393).

continue

even

on

medications, that Plaintiff is unable to handle workplace stress
because stress triggers manic episodes, that Plaintiff is unable
to multi-task, that she lacks impulse control when manic, and
that her condition is chronic. (Id.).
SRS treatment notes dated September 1, 2009 reflect that
Plaintiff reported that she could no longer take Vistaril14 due
to increased anxiety.

She was directed to discontinue Vistaril

and Artane and to continue Risperdal and Trazodone and to return
in six months.

(Id. at 403).

14

Vistaril is used to relieve the itching caused by
allergies and to control the nausea and vomiting caused by
various conditions, including motion sickness. It is also used
for anxiety and to treat the symptoms of alcohol withdrawal. See
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682866.html
(Last visited September 27, 2012).

17

Larry E. Pickel, Ph.D. (hereinafter “Dr. Pickel”) examined
Plaintiff, at the request of the Agency, on May 8, 2007.
at

316-20).

remembered

Plaintiff

having

reported

problems

in

her

to

Dr.

Pickel

youth

and

(Id.

that

that

she

bipolar

disorder runs in her family, and includes her older sister, twin
sister, and uncle.

At the time of the evaluation, Plaintiff was

taking three Trazodone 100 mg daily, one Neurontin 600 mg, and
one-half Risperdal 4 mg daily.
took

Seroquel

due

to

leg

Plaintiff reported she no longer

problems

and

was

no

longer

taking

Lithium because it “made her mean.”

(Id. at 317).

Plaintiff

reported

that

homicidal

no

suicidal

thoughts

but

thoughts toward her former husband.

she

had

Plaintiff indicated her

main difficulty was short-term memory, lack of concentration,
and attention.

Plaintiff reported infrequent socialization but

strong family support.
On

mental

(Id. at 317-18).

status

exam,

Plaintiff

had

an

appropriate

attitude and affect, she seemed stable, cooperative, talkative,
oriented,
318).

alert

and

responsive,

and

reality-based.

(Id.

at

Dr. Pickel noted that Plaintiff described mood swings;

however, no mood swings were observed during the evaluation, and
Plaintiff did not appear anxious.

(Id.).

Her memory seemed

intact, and she remembered 5/5 objects in the room after 10
minutes and could remember five digits forward and three digits
reversed.

(Id.).

She was able to solve four out of five math
18

problems, and Dr. Pickel remarked that she was average on simple
proverbs

and

average

on

comprehension

Weschler Adult Intelligence Scale.

questions

from

the

(Id.).

Dr. Pickel diagnosed Plaintiff with bipolar disorder not
otherwise specified and recent hypomanic episodes without major
depressive

disorder.

He

also

considered

generalized

anxiety

disorder, social anxiety type, and ruled out prior history of
attention deficit hyperactivity disorder, childhood onset. Dr.
Pickel opined Plaintiff’s diagnosis was fair.

(Id. at 318-19).

Medical consultant Janise Hinson, Ph.D. (hereinafter “Dr.
Hinson”), reviewed Plaintiff’s medical records at the request of
the Agency and on May 31, 2007, she completed a Mental RFC.
(Id.

at

314-15,

321-338).

She

opined

that

Plaintiff

is

moderately limited in the ability to understand and remember
detailed instructions, to carry out detailed instructions, to
maintain attention and concentration for extended periods, to
perform

activities

within

a

schedule,

to

maintain

regular

attendance and be punctual with customary tolerances, to sustain
an

ordinary

coordination

routine
with

without
or

special

proximity

supervision,

to

others

to

work

without

in

being

distracted by them, to make simple work-related decisions, to
complete

a

normal

workday

and

workweek

without

interruptions

from psychologically based symptoms, to perform at a consistent
pace without an unreasonable number and length of rest periods,
19

to interact appropriately with the general public, to accept
instructions

and

supervisors,

to

respond
get

appropriately

along

with

to

coworkers

criticism

or

peers

from

without

distracting them or exhibiting behavioral extremes, to maintain
socially appropriate behavior and adhere to basic standards of
neatness and cleanliness, to respond appropriately to changes in
the

work

setting,

to

be

aware

of

normal

hazards

and

take

appropriate precautions, to travel in unfamiliar places or use
public transportation, and to set realistic goals or make plans
independently

of

others.

(Id.

at

321-22).

She

Plaintiff is not otherwise significantly limited.

found

that

(Id. at 321-

24).
In a Psychiatric Review Technique completed on the same
day,

Dr.

Hinson

specifically

diagnosed

disturbance

Plaintiff

of

mood,

with

Affective

accompanied

by

Disorder,

a

full

or

partial manic or depressive syndrome, as evidenced by bipolar
syndrome with a history of episodic periods manifested by the
full symptomatic picture of both manic and depressive syndromes,
and Anxiety-Related Disorder.
opined

that

Plaintiff

has

a

(Id. at 325-28).
moderate

degree

of

Dr. Hinson
functional

limitations due to mental illness in the areas of activities of
daily living, maintaining social functioning, and maintaining
concentration, persistence, and pace.

20

(Id. at 335-338).

The record includes treatment notes from Dr. Linda Haynes
dated July 12, 2007 and December 12, 2007.

(Id. at 354-58)

During the July 12 visit, Plaintiff complained of sinus pain
with

headache.

She

also

crying, and agitation.

reported

racing

(Id. at 357).

thoughts,

tension,

During the December 12

visit, Plaintiff’s chief complaint was sinus pain, with cough
and headache.

She also reported that she could not afford her

Risperdal and was experiencing rages, and that while Klonapin
works for her bipolar disorder, she was out of her prescription
because her sister stole it.

(Id. at 355).

Dr. Haynes noted

that Plaintiff was anxious but was in no acute distress.

(Id.

at 355-56).
On

October

29,

2007,

Robert

Cobb,

MD

(hereinafter

Cobb”) performed a consultative examination of Plaintiff.
at

343-52).

He

diagnosed

Plaintiff

cigarette smoking and cardiac murmur.

with

COPD

“Dr.
(Id.

secondary

(Id. at 345).

to

Dr. Robert

Culpepper completed a physical RFC assessment on November 8,
2007, and determined that Plaintiff’s COPD was not severe.

(Id.

at 353).
The

record

includes

a

Clinical

Assessment

prepared by Dr. L. Sean Stokes on May 1, 2009.

of

Pain

form

(Id. at 389).

In it, Dr. Stokes indicates that Plaintiff experienced pain to
such an extent as to be distracting to the adequate performance
of work activities and that medication side effects could be
21

expected to be severe and to limit Plaintiff’s effectiveness due
to distraction, inattention, and drowsiness.

(Id.).

Plaintiff was evaluated by Jack Carney, Ph.D. (hereinafter
“Dr. Carney”), at the request of the Agency on July 14, 2009.
(Id. at 394-397).
times

three.

dental

On mental status exam, Plaintiff was oriented

Plaintiff

work,

and

Dr.

admitted
Carney

commensurate with her mood.

to

being

observed

irritable

her

affect

due

to

to

be

He noted she appeared anxious, and

that she described her usual mood as “happy.”

(Id. at 395).

Plaintiff’s memory was intact, and she could recall five digits
forward and backward and could recall two objects after five
minutes.
for

the

Plaintiff was able to describe recent general memories
day

without

apparent

difficulty,

as

well

as

remote

memories, such as her oldest child’s birthday or the name of the
last school she attended.
average.

Plaintiff’s intelligence was noted as

(Id.).

Dr.
Personality

Carney

administered

Inventory-2

Test.

the
The

Minnesota

resulting

Multiphasic

clinical

profile

indicated that Plaintiff was “likely to be experiencing a great
deal of distress and turmoil.
tense, and restless.
problems.”

She tends to be very anxious,

She also seems to be experiencing somatic

(Id. at 396).

The profile further indicated that

Plaintiff was neither currently depressed nor manic; however,
the profile reflected elevated levels of mood, speech, motor
22

activity,

and

medication.
Dr.

irritability

though

Plaintiff

was

on

(Id.).

Carney

dependence,

even

diagnosed

in

full

bipolar

remission,

disorder

and

opined

that

and

polysubstance
her

symptoms

would likely show improvement, with medication, within six to
twelve

months.

prognosis

(Id.

for

at

396-97).

treatment

of

He

bipolar

noted

that

disorder

is

long-term
“always

uncertain” and that patients often relapse because they do not
like to or do not want to take their medications.

(Id. at 397).

Dr. Carney observed that Plaintiff seems capable of managing her
funds currently, but would need someone to manage her money
should she go into a manic phase.

(Id.).

With regard to Plaintiff’s ability to perform work related
activities,

Dr.

Carney

opined

that

Plaintiff’s

ability

to

understand, remember, and carry out instructions was affected by
her impairment, and that she experienced “marked” limitations in
her ability to make judgments on complex work-related decisions,
and

experienced

“moderate”

limitations

in

her

ability

to

understand and remember simple instructions, to carry out simple
instructions,

to

make

judgments

on

simple

work-related

decisions, to understand and remember complex instructions, to
carry out complex instructions, and in her ability to interact
appropriately with the public, supervisors, coworkers, and to
respond to changes in a routine work setting.
23

(Id. at 398-99).

2.

Issue
Whether the ALJ erred in rejecting the opinions
of Plaintiff’s treating psychiatrist?

In her brief, Plaintiff asserts that the ALJ erred in not
accepting the opinions of her long-time treating mental health
practitioner, Dr. Barnes.

Specifically, Plaintiff alleges that

the ALJ improperly relied on the opinions of Dr. Carney and Dr.
Hinson.

Plaintiff

points

to

the

June

28,

2007

Disability

Determination form signed by both Dr. Barnes and Ms. Morton, the
February

28,

2008

mental

RFC

Questionnaire

prepared

by

Ms.

Morton, and the June 3, 2009 mental RFC signed by Dr. Barnes and
Ms.

Morton.

According

to

Plaintiff,

the

ALJ’s

reasons

for

giving little weight to Dr. Barnes’ June 3, 2009 mental RFC
“fall far short of being adequate and persuasive,” and do not
constitute good cause.

Further, Plaintiff argues that the ALJ

failed to recognize that her disorder would likely “wax and wane
over time.”

Plaintiff also alleges that she is “presumptively

disabled based upon meeting the requirements of ¶12.04 of the
Listings.”
In
properly

(Doc. 14).

opposition,
gave

little

the

Commissioner

weight

to

Dr.

argues
Barnes’

that

the

ALJ

opinions

and

identified good cause for doing so because they were not wellsupported by his treatment notes or by the evidence of record.
Additionally, the Commissioner contends that social workers are

24

not valid medical sources under the Social Security Rulings; and
thus, Ms. Morton’s mental RFC dated February 28, 2008 was not
deserving

of

significant

weight.

The

Commissioner

further

states that Plaintiff has the burden of showing she meets a
Listing, but she has not developed or explained how the Listing
requirements have been met; thus, any argument that she met a
Listing has been waived. (Doc. 15).
Case law provides that “[t]he ALJ must generally give the
opinion

of

a

treating

physician

‘substantial

or

considerable

weight’ absent a showing of good cause not to do so.”

Newton v.

Astrue, 297 Fed. Appx. 880, 883 (11th Cir. 2008).

See also

Lewis

1997)

v.

Callahan,

125

F.3d

1436,

1440

(11th

Cir.

(a

treating physician’s opinion must be given substantial weight
unless

good

Circuit

has

physician’s
contrary

to

cause

is

shown

to

concluded

“good

cause”

opinion
the

is

not

evidence,

the

contrary).
exists

bolstered
or

when

the

by

The

Eleventh

a

treating

when
the

evidence,

treating

is

physician’s

opinion is inconsistent with his or her own medical records.
Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
Generally, an ALJ commits reversible error where he fails to
articulate the reason for giving less weight to the opinion of a
treating physician.

MacGregor v. Bowen, 786 F. 2d 1050, 1053

(llth Cir. 1986); Crawford v. Comm’r of Soc. Sec., 363 F. 3d
1155,

1159

(llth

Cir.

2004)(per
25

curiam)(the

ALJ

must

accord

substantial

or

considerable

weight

to

opinion

of

treating

physician unless “good cause” is shown to the contrary.).
When

a

treating

physician’s

opinion

does

not

warrant

controlling weight, the ALJ must nevertheless weigh the medical
opinion based on: 1) the length of the treatment relationship
and the frequency of examination; 2) the nature and extent of
the treatment relationship; 3) medical evidence supporting the
opinion;

4)

consistency

with

the

record

as

a

whole;

5)

specialization in the medical issues at issue; and 6) other
factors which tend to support or contradict the opinion. 20
C.F.R. § 404.1527(d).
is

entitled

opinion.
1984).
choose

to

more

Generally, a treating physician’s opinion
weight

than

a

consulting

physician's

See Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.
Of course, it is the ALJ’s duty, as finder of fact, to

between

conflicting

evidence,

and

he

may

reject

the

opinion of any physician when the evidence supports a finding to
the contrary.

Ellison v. Barnhart, 355 F.3d 1272, 1275-76 (11th

Cir. 2003) (per curiam), citing Oldham v. Schweiker, 660 F.2d
1078, 1084 (5th Cir. 1981) (holding that “the ALJ is free to
reject the opinion of any physician when the evidence supports a
contrary

conclusion”)

(citation

omitted);

Kennedy

v.

Astrue,

2010 U.S. Dist. LEXIS 39492, *22-23 (S.D. Ala. Apr. 21, 2010)
(“[I]t is the ALJ's duty, as finder of fact, to choose between
conflicting evidence[,] and he may reject the opinion
26

of any

physician

when

contrary.”).

the

evidence

supports

a

finding

to

the

Based upon a careful review of the record, the

undersigned finds that substantial evidence supports the ALJ’s
decision

not

to

assign

great

or

controlling

weight

to

the

opinions contained in Dr. Barnes’ assessments dated June 28,
2007 and June 3,

2009.

As noted above, the ALJ concluded that Plaintiff has the
severe impairment of bipolar disorder but determined that she
was

not

disabled.

In

doing

so,

he

considered

the

medical

opinions of Dr. Carney, Dr. Hinson, Dr. Barnes, and Dr. Stokes.15
The

ALJ

gave

little

weight

to

the

Barnes’ June 3, 2009 mental RFC

opinion

contained

in

Dr.

questionnaire and found the

following:

15

The ALJ considered Ms. Morton’s opinions in accordance
with acceptable Regulations. Social workers, like Ms. Morton,
are not listed as acceptable medical sources for the purpose of
establishing an impairment; however, “evidence from other
sources [may be used] to show the severity of [the claimant’s]
impairment(s) and how it affects [the] ability to work.”
20
C.F.R. §§ 404.1513(d), 416.913(d) (stating other sources may
include “therapists, social workers”). Pursuant to SSR 06-03p,
only
“acceptable
medical
sources”
can
give
...
medical
opinions.” 2006 SSR LEXIS 5, *3 (2006) (citing 20 C.F.R.
404.1527(a)(2) and 416.927(a)(2)).
However, “[o]pinions from
[nurse
practitioners,
physician
assistants,
and
licensed
clinical social workers], who are not technically deemed
‘acceptable medical sources’ ... are important and should be
evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in
the file.” 2006 SSR LEXIS 5, *8.

27

Dr. Barnes opined the claimant is markedly
limited in her ability to understand, carry
out and remember instructions. He also
opined
the
claimant
is
moderately
to
markedly limited in her ability to: respond
appropriately to supervision in a work
setting; respond appropriately to coworkers
in a work setting; perform simple tasks in a
work setting; and perform repetitive tasks
in a work setting. (Exhibit 16F) The
undersigned gives little weight to this
opinion. This opinion is not well-supported
by
Dr.
Barnes’
treatment
notes,
which
indicate that claimant is doing well on
medications and has few (and short-lived)
manic episodes while on medications.
Dr.
Barnes has not made significant changes to
the claimant’s medications.
He has not
attempted
new
or
different
treatment
modalities (which suggest he is satisfied
with the claimant’s response to her current
treatment). The course of treatment pursued
by the doctor has not been consistent with
what one would expect if the claimant were
truly as limited as the doctor opined. This
opinion is inconsistent with the opinions of
Dr. Carney and Dr. Hinson which are less
limiting. This opinion is inconsistent with
the claimant’s testimony and her activities
of daily living. The possibility always
exists that a doctor may express an opinion
in an effort to assist a patient with whom
he or she sympathizes for one reason or
another.
Another reality which should be
mentioned is that patients can be quite
insistent
and
demanding
in
seeking
supportive notes or reports from their
doctors, who might provide such a note in
order to satisfy their patients’ requests
and
avoid
unnecessary
doctor/patient
tension.
While it is difficult to confirm
the presence of such motives, they are more
likely in situations where the opinion in
question departs substantially from the rest
of the evidence of record, as in the current
case.

28

(Tr. 21).
In this case, it is clear that ALJ did not reject all of
Dr. Barnes’ opinions.

It is clear that he considered and relied

heavily on the treatment records from SRS, including Dr. Barnes’
treatment

notes.

He

concluded

however

that

the

restrictive

limitations contained in Dr. Barnes’ June 2009 mental assessment
were

not

supported

by

his

treatment

notes,

which

repeatedly

reflect that Plaintiff is doing well on medications and has had
only one, short manic episode while on prescribed medications
since 2004.16

See Choate v. Barnhart, 457 F.3d 865, 870 (8th

Cir. 2006) (ALJ permitted to disregard a treating physician’s
opinion regarding limitations, when no limitations were stated
in the physician’s treatment notes).

16

As noted supra, Dr. Barnes

While the ALJ did not specifically address the abilities
questionnaire prepared by Ms. Morton and Dr. Barnes on June 8,
2007, based on the record before the Court, the undersigned
concludes that the ALJ considered the opinion and rejected it.
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (stating
“there is no rigid requirement that the ALJ specifically refer
to every piece of evidence in his decision so long as [his]
decision ... is not a broad rejection which is ‘not enough to
enable [a court] to conclude that the ALJ considered [a
claimant’s] medical condition as a whole.’”) (citation omitted).
In the questionnaire, Dr. Barnes and Ms. Morton noted that
Plaintiff’s abilities to function in a work setting were “poor”
in almost all aspects.
The questionnaire indicates that
Plaintiff “has many interpersonal conflicts,” “has extreme
memory problems,” and “forgets appointments,” among other
things.
However, the record, specifically the treatment notes
from SRS, does not support such extreme limitations, and the ALJ
reasonably rejected the opinion for the reasons set forth supra.

29

and Ms. Morton opined that Plaintiff was “markedly” limited in
certain

areas

of

functioning,

including

in

concentration,

persistence, and pace, and in her ability to understand, carry
out,

and

remember

instructions.

Dr.

Barnes

and

Ms.

Morton

further opined Plaintiff was “moderately” to “markedly” limited
in her ability to respond appropriately to coworkers, perform
simple tasks, and perform repetitive tasks in a work setting.
The

ALJ

found

acknowledged

that

the

these

extreme

opinions,

in

were

limitations

and

rejecting

at

odds

them,

with

the

treatment notes, which contain repeated notations that Plaintiff
was “stable,” and “doing good” or “doing well” on medications.
The

record

reflects

that

in

November

2004,

Plaintiff

received treatment at SRS for “moderate” bipolar disorder.

She

was treated with therapy and medications.

(Tr. 241, 245-54).

The

and

SRS

treatment

notes

for

2005,

2006,

most

of

2007

indicate that Plaintiff’s medications were occasionally adjusted
due to effectiveness or side effects such as restless legs but
that they controlled her manic symptoms, and she was routinely
noted as “stable” and “doing well.”

Plaintiff was continuously

compliant with her medication regime until December 2007 when
she became manic and experienced a drug relapse, which lasted a
week and a half.
previously

lasted

Plaintiff reported that her manic episodes
for

brief in comparison.

months;

however,

(Id. at 361-62).
30

the

2007

episode

was

Plaintiff’s treatment at

SRS did not change as a result of the relapse, and she was
directed

to

continue

to

see

Dr.

Barnes

to

monitor

her

medications twice yearly and to continue to see a therapist at
SRS.
8,

From that point forward and up until the date of the June

2009

hearing,

medications,

Plaintiff

with

was

occasional

noted

as

adjustment,

compliant
and

was

with

her

repeatedly

observed as “doing well” and “stable.”
Given

that

throughout

his

treatment

records,

Dr.

Barnes

noted that Plaintiff was stable and doing well on medication,
except for one brief relapse, and that her course of treatment
never materially changed, the record evidence, or lack thereof,
in

Dr.

Barnes’

proffered

treatment

functional

notes

limitations.

do

not

support

Accordingly,

Plaintiff’s
good

cause

exists for the ALJ’s rejection of the opinions contained in Dr.
Barnes’ assessment because they were not supported by either Dr.
Barnes’ treatment notes nor the other record evidence.
Although the ALJ did not mention the evaluation completed
by Dr. Pickel on May 8, 2007, Dr. Pickel observed that on exam,
Plaintiff seemed stable, cooperative, and oriented, and that she
did not appear anxious.
short-term

memory,

lack

While Plaintiff’s main complaint was
of

concentration,

and

attention,

Dr.

Pickel noted Plaintiff’s memory seemed intact, and she was able
to remember 5/5 objects after 10 minutes and five digits forward

31

and

three

digits

backward.

Dr.

Pickel

also

opined

that

Plaintiff’s diagnosis was “fair.”
Further, the Mental RFC Assessment prepared by Dr. Hinson
on May 31, 2007, which reflected Plaintiff’s abilities as of
that date, found that Plaintiff had no “marked” limitations in
any of the twenty areas of functioning she was asked to assess,
and she opined that Plaintiff was capable of working and was
able to understand and carry out instructions and could maintain
attention
within

and

an

concentration

eight-hour

adequately

workday.

She

for

two-hour

further

periods

observed

that

Plaintiff could complete a normal work-week without excessive
interruptions

from

psychological

symptoms,

interact

appropriately with coworkers and supervisors on a limited basis,
and adapt to a work setting.
In

addition,

medications

Plaintiff

control

her

taking them at times.
“happy.”
years

(Id. at 395).

earlier,

(Id. at 323).
reported

symptoms;

to

Dr.

however,

Carney

she

did

that

her

not

like

She further described her usual mood as
Like Dr. Pickel’s examination over two

Plaintiff’s

memory

was

intact

on

examination.

While Dr. Carney opined that Plaintiff was “markedly” limited in
her ability to make judgments on complex work-related decisions,
he determined she was only “moderately” limited in her ability
to understand, to remember, and to carry out simple and complex
instructions.

(Id. at 398-400).
32

Additionally,

Plaintiff

testified

at

the

June

8,

2009

hearing that the medication controls her manic symptoms and that
she had not experienced “true mania” since October 2004.
at 58).

(Id.

She further testified she experienced a “slight” case

of “mania” in December 2007 that lasted less than two weeks,
which

was

episodes.

significantly
(Id. at 59).

shorter

than

her

previous

manic

Plaintiff also reported that while she

still has some anxiety, she is stable on her medications, which
“keep [her] on track” (id. at 64) and that she could function in
her everyday activities, including doing laundry, keeping her
home clean, reading books, and taking care of her kids.
57-65).
that

(Id. at

She later testified at a hearing on October 26, 2009,

she

typically

takes

a

nap

during

the

day

due

to

the

sluggishness, tiredness, sleepiness, and headaches caused by her
medications.

She also acknowledged that she is able to function

without a nap when she has things to take care of.

(Id. at 32,

37).
A

review

instances

of

since

complained

about

the

treatment

Plaintiff’s
the

records

2004

side-effects

appropriate adjustments were made.

reveal

diagnosis
of

her

a

in

couple

of

which

she

medications,

and

Overall, the records reflect

that Plaintiff has had a good response to her medications and
that she is doing well notwithstanding the cyclical nature of
her

bipolar

disorder.

The

undersigned
33

finds

that

that

the

record

demonstrates

balanced
including

the

that

medical

that

the

evidence

supporting

disability claim.

ALJ
and
and

properly
other

considered

evidence

contradicting

of

and

record,

Plaintiff’s

This Court may not re-weigh the evidence or

substitute its own judgment for that of the Commissioner, but
rather, must give deference to the Commissioner’s decision if it
is supported by substantial evidence.
F.

3d

1206,

1210

(llth

Cir.

See Dyer v. Barnhart, 395

2005).

Given

that

the

ALJ

considered the record evidence, and that substantial evidence
supports

the

ALJ’s

determination

rejecting

the

marked

limitations contained in Dr. Barnes’ assessments, as well as his
ultimate conclusion that Plaintiff is not disabled, the Court
finds that the ALJ’s decision is due to be affirmed.
V.

Conclusion
For the reasons set forth, and upon careful consideration

of the administrative record and memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner of Social
Security, denying Plaintiff’s claim for a period of disability
and disability insurance benefits, be AFFIRMED.
DONE this 27th day of September, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

34