Byerly v. Astrue

Filing 22

MEMORANDUM OPINION and ORDER entered. Oral argument was waived in this action. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 4/24/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEBORAH J. BYERLY,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,1
Defendant.

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CIVIL ACTION 12-0494-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 13).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 20).
argument was waived in this action (Doc. 21).

Oral

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.

1Carolyn W. Colvin became the Commissioner of Social Security on

February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), Colvin is substituted
for Michael J. Astrue as Defendant in this action. No further action needs
to be taken as a result of this substitution. 42 U.S.C. § 405(g).

1

This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.”

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).
At the time of the administrative hearing, Plaintiff was
twenty-seven years old, had completed a ninth-grade education
(Tr. 56), and had previous work experience as a cashier and
short order cook (Tr. 62).

In claiming benefits, Plaintiff

alleges disability due to obesity, bipolar disorder, PTSD, and
generalized anxiety disorder (Doc. 13 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on December 29, 2008 (Tr. 111-15; see also Tr. 23).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although Byerly could not
return to her past relevant work, there were specific jobs which
she could perform (Tr. 23-37).

Plaintiff requested review of

the hearing decision (Tr. 14) by the Appeals Council, but it was

2

denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Byerly alleges

(1) The ALJ did not properly consider the opinions of one

of her treating physicians; and (2) the ALJ did not pose a
complete and comprehensive hypothetical question to the
vocational expert (hereinafter VE) (Doc. 13).

Defendant has

responded to—and denies—these claims (Doc. 16).

The relevant

evidence of record follows.
On February 15, 2008, Dr. Juliana Fort, of Baldwin County
Mental Health, examined Byerly who admitted numerous problems,
including previously misusing ice and methamphetamines, stress,
memory loss, and ADHD (Tr. 259-61).

The Psychiatrist noted that

Plaintiff was alert and oriented in three spheres, though
irritable; affect was blunted.

Thought processes were grossly

organized though circumstantial and tangential.

Dr. Fort’s

assessment was recurrent major depressive disorder, moderate
with psychosis; generalized anxiety disorder; and ADHD.
doctor prescribed Cymbalta,2 Ritalin,3 and Seroquel.4

The

On July

25, 2008, Dr. Fort’s records indicate that Byerly was sleeping

2

Cymbalta is used in the treatment of major depressive disorder.
Error! Main Document Only.Physician's Desk Reference 1791-93 (62nd ed.
2008).
3
Error! Main Document Only.“Ritalin is a mild central nervous
system stimulant” used to treat Attention Deficit Disorders in
Children. Physician's Desk Reference 1896-98 (52nd ed. 1998).
4
Seroquel is used in the treatment of schizophrenia. Error! Main
Document Only.Physician's Desk Reference 670-72 (62nd ed. 2008).

3

well, though she indicated that she was easily agitated, but not
as easily as in the past; she had quit exercising (Tr. 262).
The Psychiatrist noted that Plaintiff was oriented in three
spheres, happy, but also agitated at times; thought processes
were organized and goal directed (Tr. 263).
Seroquel were discontinued.

The Ritalin and

On October 17, 2008, Dr. Fort found

Byerly oriented in three spheres and mildly anxious; she was
talkative and her thought processes were grossly organized (Tr.
264).

Vyvanse5 was prescribed (Tr. 265).

On December 12,

Plaintiff reported being more angry and having worse mood swings
since her previous visit; the Psychiatrist noted orientation in
three spheres as well as organized and goal-directed thought
processes along with some vague paranoia (Tr. 266).
was switched to Adderall6 (Tr. 267).

The Vyvanse

On January 9, 2009, Dr.

Fort noted that Byerly’s mood was agitated at times though
“[t]hought processes [were] organized and goal directed with
mild impairment in attention span and concentration” (Tr. 268).
On February 9, 2009, Joanna Koulianos, Ph.D., completed a
Psychiatric Review Technique Form based on the evidence
submitted by Plaintiff and Dr. Fort in which she indicated that
Byerly suffered from ADHD nos; Major Depressive Disorder,

5Vyvanse is used in the treatment of ADHD.

Error! Main Document
Only.Physician's Desk Reference 3115 (62nd ed. 2008).
6Error!
 Main
 Document
 Only.Adderall is an amphetamine used for the

treatment of Attention Deficit Disorder with Hyperactivity.
Physician's Desk Reference 2395-96 (52nd ed. 1998).

4

recurrent, moderate, without psychosis; and Generalized Anxiety
Disorder (Tr. 269-81).

Koulianos opined that Plaintiff had mild

restrictions of activities of daily living, moderate
difficulties in maintaining social functioning, and moderate
difficulties in maintaining concentration, persistence, or pace
(Tr. 279).

She went on to complete a mental residual functional

capacity (hereinafter RFC) assessment in which she found that
Byerly had no marked limitations, but was moderately limited in
her ability to do the following:

understand and remember

detailed instructions; carry out detailed instructions; maintain
attention and concentration for extended periods; interact
appropriately with the general public; accept instructions and
respond appropriately to criticism from supervisors; and respond
appropriately to changes in the work setting (Tr. 283-84).
Koulianos expressed the opinion that Plaintiff was capable of
understanding and remembering short, simple instructions;
capable of performing simple tasks over an eight-hour workday
with the ability to concentrate for two-hour periods; and engage
in contact with the general public on an infrequent basis.

She

also cautioned that supervisors should offer corrective action/
instructions in a simple, supportive manner and that changes in
the work duties should be limited and introduced gradually (Tr.
285).
On February 6, 2009, Byerly reported erratic sleeping

5

patterns and her moods ranged from being really happy to really
depressed with easy agitation; she also stated that she was no
longer depressed (Tr. 289).

Dr. Fort described Plaintiff as

oriented in three spheres, agitated, and both tearful and
euphoric; she noted some mild impairment in attention span and
concentration (Tr. 290).

The Psychiatrist changed her primary

assessment to bipolar disorder, rapid cycling primarily mixed
and manic; she prescribed Geodon7 for mania and agitation (Tr.
290).

On February 27, Byerly complained that the Geodon caused

muscle spasms, although it did help her mood; Fort noted good
thought processes with vague paranoia and mild impairment in
attention span and concentration (Tr. 287-88).
prescription was dropped and Abilify8 was added.

The Geodon
On April 24,

Plaintiff reported sleeping a great deal and social avoidance
due to anxiety; the Psychiatrist noted no particular changes
(Tr. 293-94).

On that same date, Dr. Fort completed a mental

RFC questionnaire in which he indicated that Plaintiff had
marked difficulty in maintaining social functioning and marked
deficiencies of concentration, persistence, or pace resulting in
failure to complete tasks in a timely manner; Fort also
indicated that Byerly was unable to organize herself (Tr. 291).

7Geodon is used in the treatment of schizophrenia.

Error! Main
Document Only.Physician's Desk Reference 2507-09 (62nd ed. 2008).
8
Abilify is a psychotropic drug used in the treatment of
schizophrenia. Error! Main Document Only.Physician's Desk Reference
872-74 (62nd ed. 2008).

6

The Psychiatrist indicated that Plaintiff had had at least four
episodes of deterioration or decomposition in work or work-like
settings, causing her to withdraw or experience exacerbation of
her symptoms.

Fort indicated that Byerly was markedly limited

in her ability to respond appropriately to supervision.
Plaintiff had experienced these limitations for longer than a
year and her medications caused her to sleep all the time and
become easily agitated (Tr. 292).
On March 23, 2010, Psychologist John W. Davis performed a
consultative examination of Plaintiff and noted anxiety and
depression though noting that she had “the capacity for a full
range of emotional qualities” (Tr. 300; see generally Tr. 299303).

Byerly was oriented in three spheres; immediate, recent,

and remote memory was good.

There were no loose associations,

tangential or circumstantial thinking; judgment and insight were
good.

Davis indicated that Plaintiff had average intelligence;

she expressed “feelings of worthlessness, difficulty
concentrating, flight of ideas, [was] easily distracted, and
involvement in risk behavior” (Tr. 302).

The Psychologist’s

diagnostic impression was that Byerly suffered from Bipolar
Disorder and that she could expect a favorable response to
treatment within six-to-twelve months.
following comments about Plaintiff:

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Davis also made the

The claimant’s ability to understand
and remember simple instructions, carry out
simple instructions, and make judgments on
complex work-related decisions is mildly
impaired.
The claimant’s ability to understand
and remember [complex]9 instructions, carry
out [complex] instructions, and make
judgments on complex work-related decisions
is moderately impaired.
The claimant’s ability to interact
appropriately with the public, interact
appropriately with supervisors and interact
appropriately with co-workers, respond
appropriately to usual work situations and
to changes in routine settings is moderately
impaired.
(Tr. 303; cf. Tr. 304-05).
On April 7, 2010, Donna Swearingen, CRNP, with the Baldwin
County Mental Health Center, examined Plaintiff and noted that
she was stable and oriented in four spheres (Tr. 308-10).

Her

mood was calm and her thoughts were organized; memory was intact
and intelligence was estimated to be average.

Byerly had

insight into her illness and treatment though her judgment was
impaired.

This concludes the relevant evidence.

Plaintiff’s first claim is that the ALJ did not properly
consider the opinions of one of her treating physicians.

More

specifically, Byerly asserts that the reports of Psychiatrist

9

The bracketed words both say simple in the original text, but
were changed herein to say complex to more accurately reflect what the
Court believes Dr. Davis really meant, based on the marked form
completed by Dr. Davis at the same time (cf. Tr. 303-04). The Court
also notes that the corrections make more sense in context with the
balance of the rest of the text.

8

Fort were not given the attention they deserved (Doc. 13, pp. 415).

It should be noted that "although the opinion of an

examining physician is generally entitled to more weight than
the opinion of a non-examining physician, the ALJ is free to
reject the opinion of any physician when the evidence supports a
contrary conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084

(5th Cir. 1981);10 see also 20 C.F.R. § 404.1527 (2012).
In his decision, the ALJ assigned no evidentiary weight to
Dr. Fort’s conclusions, noting that her opinion that Byerly had
marked deficiencies of concentration, persistence, or pace was
unsupported by the information in her own records (Tr. 33).

In

discussing this point, the ALJ noted that Fort’s records
regularly reported a mild impairment in attention span and
concentration (id.; cf. Tr. 268, 288, 290).

The ALJ also

discounted Fort’s conclusions because she indicated that Byerly
had had four or more episodes of deterioration or
decompensation, noting that the “evidentiary record contains no
documented events” (Tr. 33-34).

The ALJ also noted that the

Psychiatrist’s opinions in her mental RFC questionnaire were
internally inconsistent, giving two different examples (Tr. 34).
The Court notes that the ALJ also gave significant

10The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent
decisions of the former Fifth Circuit rendered prior to October 1,
1981.

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evidentiary weight to the opinions of Psychologist Davis,
pointing out that his opinions were supported by the conclusions
of non-examiner Koulianos (Tr. 32-33).

The Court finds that the

ALJ’s reasoning in discrediting Dr. Fort’s conclusions is
supported by substantial evidence, noting that her medical notes
are more consistent with the conclusions of Davis than with her
own conclusions.

Plaintiff’s claim otherwise is without merit.

Byerly also claims that the ALJ did not pose a complete and
comprehensive hypothetical question to the VE.

Specifically,

Plaintiff asserts that the ALJ should have included his finding
that Byerly suffers from a moderate limitation of ability with
regard to maintaining concentration, persistence or pace in his
hypothetical (TR. 13, pp. 15-20).
The Eleventh Circuit Court of Appeals has held that an
ALJ's failure to include severe impairments suffered by a
claimant in a hypothetical question to a vocational expert to be
reversible error where the ALJ relied on that expert's testimony
in reaching a disability decision.
1561 (11th Cir. 1985).

Pendley v. Heckler, 767 F.2d

More recently, in Winschel v.

Commissioner of Social Security, 631 F.3d 1176, 1181 (11th cir.
2011), the Eleventh Circuit Court of Appeals held that, after
determining that a claimant had a moderate limitation in
maintaining concentration, persistence, or pace, an ALJ had to
either determine that the limitation would not affect the

10

claimant’s ability to work or include that limitation as part of
the hypothetical question to the VE.
In questioning the VE, the ALJ posed the following
hypothetical:
Then in the first hypothetical I’d like you
to assume that this hypothetical person
could understand, remember, and carry out
simple one or two-step instructions and
tasks on a frequent basis, like you would
assume that the person would be able to
understand, remember, and carry out complex
instructions and tasks on only an occasional
basis. I’d like you to assume that the
person could only have occasional
interaction with the general public,
coworkers, and supervisors. I’d like you to
assume that the person would be limited to
work that has only occasional changes in the
work setting. I’d like you to assume that
the person would be unable to engage in the
climbing of ladders, ropes, and scaffolds.
That the person would be unable to engage in
crawling, crouching and would be limited to
occasional kneeling. In this first
hypothetical, I’d like you to assume that
the person could not be exposed to extreme
cold or extreme heat. And let me stop there
and ask whether you’d be able to identify
any jobs in the regional or national economy
that a person of that profile could sustain?
(Tr. 63).

The VE identified specific jobs that Byerly could

perform based on this hypothetical (Tr. 64).

The ALJ based his

conclusions on the VE’s testimony, finding that Plaintiff could
perform the specific jobs suggested by the VE (TR. 37).
The Court notes that although the ALJ did not use the words

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“moderately limited in maintaining concentration, persistence or
pace,” he listed limitations that help define the specific
issues he thought Byerly would have.

Those limitations are that

Plaintiff (1) “could understand, remember, and carry out simple
one or two-step instructions and tasks on a frequent basis;” (2)
“the person would be able to understand, remember, and carry out
complex instructions and tasks on only an occasional basis;” (3)
“the person could only have occasional interaction with the
general public, coworkers, and supervisors;” and (4) “the person
would be limited to work that has only occasional changes in the
work setting.”

The Court notes that this mirrors the ALJ’s

determination of Byerly’s RFC (Tr. 31).

The Court finds that

the ALJ’s hypothetical question to the VE was complete and does
not violate the holdings in either Pendley or Winschel.
Plaintiff’s claim is without merit.
The Court also notes that Byerly has produced evidence for
this Court’s review that was submitted to the Appeals Council
(Doc. 13, Exhibit A).

The Council rejected it, noting that the

evidence did not “specifically relate[] to the period in issue
before the [ALJ] that extended only through July 1, 2010, the
date of the hearing decision” (Tr. 2).

The Court finds that the

Appeals Council’s rejection of the evidence was proper as
Plaintiff has not demonstrated that the evidence related to the
period of time under consideration for her claim of disability.

12

Byerly has raised two different claims in bringing this
action.

Both are without merit.

Upon consideration of the

entire record, the Court finds "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."

Perales, 402 U.S. at 401.

Therefore, it is

ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and
that this action be DISMISSED.

Judgment will be entered by

separate Order.
DONE this 24th day of April, 2013.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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