Dumas v. Astrue
Order that the decision of the Commissioner denying plaintiff's application for disability benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 8/26/2013. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,1
Commissioner of Social Security,
) CIVIL ACTION NO. 12-00518-N
Plaintiff Pearlie Dumas (“Dumas”) filed this action seeking judicial review of a
final decision of the Commissioner of Social Security (“Commissioner”) that she was not
entitled to Disability Insurance Benefits (DIB) under Title II of the Social Security Act,
42 U.S.C. §§416(i) and 423, or Supplemental Security Income (SSI) under Title XVI of
the Social Security Act (the Act), 42 U.S.C. §§ 1381-1383c. Pursuant to the consent of
the parties (doc. 22), 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. 23. Plaintiff’s unopposed motion to waive oral
arguments (doc. 21) was granted on March 7, 2013 (doc. 24). Upon consideration of the
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the defendant in this suit. No further action need be taken to continue this suit in
view of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
administrative record (doc. 12) and the parties’ respective briefs (docs. 13 and 19), the
undersigned concludes that the decision of the Commissioner is due to be AFFIRMED.
Plaintiff, Pearlie Dumas ,filed applications for DIB and SSI benefits on November
24, 2008, claiming an onset of disability beginning July 1, 2007 (Tr. 136). Dumas alleged
that her disability was due to a seizure disorder and depression. (Tr. 151). The
application was denied on February 20, 2009. (Tr. 69-82). Dumas timely requested a
hearing on March 24, 2009 (Tr. 86) before an Administrative Law Judge (“ALJ”). A
hearing was held on August 17, 2010. (Tr. 53-68). The ALJ issued an unfavorable
decision on September 3, 2010. (Tr. 35-48). Dumas requested a review by the Appeals
Council (Tr. 27-28), which was denied on July 12, 2012 (Tr. 1-6), thereby making the
ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. § 404.981 (2009)2.
Dumas has exhausted all her administrative remedies and now appeals from that final
Issue on Appeal.
Whether the ALJ erred by failing to find that Dumas suffered from a severe mental
Standard of Review.
Scope of Judicial Review.
All references to the Code of Federal Regulations (C.F.R.) are to the 2012 edition.
In reviewing claims brought under the Social Security Act, this Court's role is a
limited one. Specifically, the Court's review is limited to determining: 1) whether the
decision is supported by substantial evidence, and 2) whether the correct legal standards
were applied. See, 42 U.S.C. § 405(g); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Thus, a court may not
decide the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996); Sewell v. Bowen,
792 F.2d 1065, 1067 (11th Cir. 1986). Rather, the Commissioner's findings of fact must
be affirmed if they are based upon substantial evidence. Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997); Chater, 84 F.3d at 1400; Brown v. Sullivan, 921 F.2d 1233,
1235 (11th Cir. 1991). See also, Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990)(“Even if the evidence preponderates against the Secretary's factual findings, we
must affirm if the decision reached is supported by substantial evidence.”); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that 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. Lynch v. Astrue, 358 Fed.Appx. 83, 86 (11th Cir. 2009);
Martino v. Barnhart, 2002 WL 32881075, * 1 (11th Cir. 2002); Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). Even where there is substantial evidence to the contrary
of the ALJ's findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ's decision. Barron v. Sullivan, 924 F.2d
227, 230 (11th Cir. 1991).
The ALJ is responsible for determining a claimant's RFC, an ingrained principle of
Social Security law. See 20 C.F.R. § 416.946(c) (“If your case is at the administrative
law judge hearing level under § 416.1429 or at the Appeals Council review level under §
416.1467, the administrative law judge or the administrative appeals judge at the Appeals
Council (when the Appeals Council makes a decision) is responsible for assessing your
residual functional capacity.”) “Residual functional capacity, or RFC, is a medical
assessment of what the claimant can do in a work setting despite any mental, physical or
environmental limitations caused by the claimant's impairments and related symptoms.”
Peeler v. Astrue, 400 Fed.Appx. 492, 493 n. 2 (11th Cir. Oct.15, 2010), citing 20 C.F.R. §
416.945(a). See also, Hanna v. Astrue, 395 Fed.Appx. 634, 635 (11th Cir. Sept.9, 2010)
(“A claimant's RFC is ‘that which [the claimant] is still able to do despite the limitations
caused by his ... impairments.’”)(quoting Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th
Cir.2004). “In making an RFC determination, the ALJ must consider all the record
evidence, including evidence of non-severe impairments.” Hanna, 395 Fed.Appx. at 635
(citation omitted); see also 20 C.F.R. § 416.945(a)(1) (“We will assess your residual
functional capacity based on all the relevant evidence in your case record.”); 20 C.F.R. §
416.945(a)(3) (“We will assess your residual functional capacity based on all of the
relevant medical and other evidence.”). The regulations provide, moreover, that while a
claimant is “responsible for providing the evidence [the ALJ] ... use[s] to make
a[n][RFC] finding[,]” the ALJ is responsible for developing the claimant's “complete
medical history, including arranging for a consultative examination(s) if necessary,” and
helping the claimant get medical reports from her own medical sources. 20 C.F.R. §
416.945(a)(3). In assessing RFC, the ALJ must consider any statements about what a
claimant can still do “that have been provided by medical sources,” as well as
“descriptions and observations” of a claimant's limitations from her impairments,
“including limitations that result from [ ] symptoms, such as pain[.]” Id.
In determining a claimant's RFC, the ALJ considers a claimant's “ability to meet
the physical, mental, sensory, or other requirements of work, as described in paragraphs
(b), (c), and (d) of this section.” 20 C.F.R. § 416.945(a)(4).
(b) Physical abilities. When we assess your physical abilities, we first
assess the nature and extent of your physical limitations and then determine
your residual functional capacity for work activity on a regular and
continuing basis. A limited ability to perform certain physical demands of
work activity, such as sitting, standing, walking, lifting, carrying, pushing,
pulling, or other physical functions (including manipulative or postural
functions, such as reaching, handling, stooping or crouching), may reduce
your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first assess
the nature and extent of your mental limitations and restrictions and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to carry out certain mental activities,
such as limitations in understanding, remembering, and carrying out
instructions, and in responding appropriately to supervision, coworkers, and
work pressures in a work setting, may reduce your ability to do past work
and other work.
(d) Other abilities affected by impairment(s). Some medically determinable
impairment(s), such as skin impairment(s), epilepsy, impairment(s) of
vision, hearing or other senses, and impairment(s) which impose
environmental restrictions, may cause limitations and restrictions which
affect other work-related abilities. If you have this type of impairment(s),
we consider any resulting limitations and restrictions which may reduce
your ability to do past work and other work in deciding your residual
20 C.F.R. § 416.945(b), (c) & (d). See also Kennedy v. Astrue, 2012 WL 2873683, * 7-8
(S.D. Ala. July 13, 2012).
Statutory and Regulatory Framework.
The Social Security Act's general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C.
§ 423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line. Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical
language for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20
C.F.R. § 404.1505(a), 416.905(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), 1382c(a)(3)(A). A “physical or mental
impairment” is one that “results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§
404.1520, 416.920 (2010). The Eleventh Circuit has described the evaluation to include
the following sequence of determinations:
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the 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
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). See also Bell v. Astrue, 2012
WL 2031976, *2 (N.D. Ala. May 31, 2012); Huntley v. Astrue, 2012 WL 135591, *1
(M.D. Ala. Jan. 17, 2012).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's
Residual Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242–43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, app. 2 (“grids”),or hear testimony
from a vocational expert (VE). Id. at 1239–40.
Additionally, to qualify for a period of disability and/or disability insurance
benefits, plaintiff must prove he has a medically determinable impairment or impairments
of sufficient severity to constitute a disability as contemplated by the Act and that the
impairment or impairments became disabling while he was insured for disability
purposes. The Act places the burden of establishing disability on the plaintiff.
Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983); see also 42 U.S.C. §S
423(c)(1); 20 C.F.R. § 404.1512(a). In order to receive disability insurance benefits or a
period of disability, Dumas must establish that her condition became disabling before the
expiration of her insured status on March 31, 2007. Ware v. Schweiker, 651 F.2d 408,
411 (5th Cir. 1981), cert. denied, 455 U.S. 912 (1982)(Claimant “must show that she was
disabled on or before the last day of her insured status.”). If a plaintiff becomes disabled
after insured status has expired, the claim must be denied despite disability. See, Kirkland
v. Weinberger, 480 F.2d 46 (5th Cir. 1973); Chance v. Califano, 574 F.2d 274 (5th Cir.
1978); Morgan v. Astrue, 2008 WL 4613060, * 13 (S.D. Fla. Oct. 15, 2008)(“If a
claimant becomes disabled after she has lost insured status, her claim for disability
benefits must be denied, despite her disability.”); Benjamin v. Apfel, 2000 WL 1375287,
* 3 (S.D. Ala. August 02, 2000)(“ If a claimant becomes disabled after her insured status
has expired, her claim must be denied despite her disability.”) Dumas’s earnings record
shows she was insured through June 30. 2008, but not thereafter (Tr. 144).
IV. Findings of Fact and Conclusions of Law.
A. Statement of Facts.
1. Vocational Background.
Dumas was 55 years old as of June 30, 2008, the date she was last insured for
purposes of DIB, and 57 years old as of September 3, 2010, the date on which the
Commissioner’s decision became final for SSI purposes (Tr. 136, 144). The highest
grade of school completed by Dumas was one year of college in 2001 (Tr. 156).
Dumas’s past work experience included work as a teacher assistant, housekeeper, and
stock clerk (Tr. 57, 232). Her most recent job was working June or July 2007 through a
“temp service” at a department store stocking shelves for a grand opening (Tr. 57).
Dumas stopped working in July of 2007 “when I was diagnosed with having seizures”
(Tr. 57). Dumas was insured for a period of disability and Disability Insurance Benefits
through June 30, 2008, but not thereafter. (Tr. 144).
At the hearing on August 17, 2010, Dumas testified that the arthritis in her knees
interferes with or prevents her from working fulltime (Tr. 57). She testified that Franklin
Clinic has been treating this problem for about a month and she has required
hospitalization for the knee problem (Tr. 58).4 She contends that the pain occurs every
day at a level of seven on a scale of one to ten with ten being the worst (Tr.58-59). She
states that she only takes “arthritis” medicine for it and gets only “slight” relief (Tr. 59).
She denies any side effects from the medication she takes (Tr. 59).
Dumas further testified that she is single, can feed, bathe and dress herself, and she
can shop for groceries and do a little cooking and light housework (Tr. 56, 59-60). She
smokes but denies drinking alcohol or using street drugs (Tr. 60). She does not have a
drivers’ license (Tr. 60).
Dumas also testified that she is able to walk about four blocks before she has to sit
down (Doc. 60). She can stand about 15 minutes at a time (Tr. 60) and sit about 20
minutes at a time (Tr. 61). Dumas also testified that she can lift and carry about 15
No medical records have been submitted with regard to this alleged hospitalization.
pounds without hurting herself (Tr. 61), can use her hands to pick up small objects, can
reach overhead to wash her hair, can push and pull with her hands, and can climb a
couple of steps if she has to (Tr. 61-62). She can also climb a flight of stairs but “it takes
time” (Tr. 64). Dumas also stated that, because of water retention, she is not able to sit
for too long without having to go to the bathroom (Tr. 62). She identified no other
difficulty sitting (Tr. 62).
In response to a question about when she had her last seizure, Dumas first stated
that it was in 2008 or 2009 when she was kept in Mobile Infirmary Hospital for two and a
half days” (Tr. 63). She then claimed to have had “a mild one” since then (Tr. 63). She
described the seizures as “going on while I’m asleep” (Tr. 63). She knows it is a mild
one if there is only a “nipping of, the biting of my tongue” (Tr. 63). “If it’s real, real
heavy I have a severe bite in the back of my, on my tongue” (Tr. 63). When she wakes
up after an episode, she states that she feels “[n]ausea, in a daze . . . and then I’m
coherent” (Tr. 64).
Dumas also testified that she can bend over to clean out the tub but it takes time
“for my back” (Tr. 64). In addition to preparing meals for herself, she can sweep and
mop the house (Tr. 64). Dumas described her usual day as follows: at 6:00 am. she gets
up and takes her medicine; she fixes breakfast; does a little cleaning; takes medicine
around 10:00 a.m.; watches a little TV; takes medicine and then a nap at 2:00 p.m.; gets
up and fixes dinner; after dinner, she exercises her knees by rotating them; and takes her
bath and last medicine for the day at 10:00 p.m. and goes to bed (Tr. 65). She again
denied any side effects from her medicine (Tr. 65).
Medical Evidence Before the ALJ.
Dumas’s relevant medical evidence begins with her visit to the Mobile Infirmary
emergency room on December 28, 2007, for a seizure (Tr. 304 – 315). Dumas was
reported to be alert and oriented, and demonstrated normal cranial nerve functioning;
equal, round, reactive pupils; normal cerebellar functioning; the absence of sensory or
motor deficits; normal reflexes; normal extremity ranges of motion and the ability to
move all extremities; and a normal gait (Tr. 307-309). Her blood chemistries were
normal but she did test positive for cocaine resulting in a notation of “substance abuse”
(Tr. 307). She was discharged in stable condition (Tr. 309).
On March 3, 2008, Dumas presented to Altapointe Health Systems (“Altapointe”)
with complaints of depression and visual hallucinations (Tr. 239-243). She was
examined by Dr. Billett, a psychiatrist, who diagnosed with schizophrenia or
schizoaffective disorder and (Tr. 241-242). Dr. Billett reported a blunted affect, poor
hygiene, and impaired concentration, but also noted that Dumas was oriented and goal
directed and demonstrated logical, coherent thoughts and unimpaired memory (Tr. 240241). He recommended laboratory studies and psychotherapy and prescribed a trial of
Invega5 and Zoloft6 (Tr. 242).
Invega (paliperidone) is an antipsychotic medication that works by changing the effects of
chemicals in the brain and is used to treat schizophrenia. See http://www.drugs.com/invega.html.
Zoloft (sertraline) is an antidepressant in a group of drugs called selective serotonin reuptake
inhibitors (SSRIs) that affects chemicals in the brain that may become unbalanced and cause depression,
panic, anxiety, or obsessive-compulsive symptoms. See http://www.drugs.com/zoloft.html.
Dumas did not return to Altapointe until July 11, 2008 (Tr. 238). She was seen by
Danette Overstreet, a Certified Registered Nurse Practitioner (“CRNP”), who noted that
“[s]he is friendly and smiling and neatly dressed with neatly groomed graying hair and
br[i]ght clothing” (Tr. 238). Dumas told Overstreet that she was still seeking
employment but “does feel overwhelmed and uncertain when she goes for a job
interview” (Tr. 238). Overstreet reported that Dumas was “[u]ncertain why she came in
today after such a long time since intake but she seems happy to try SSRI, Zoloft today at
a lower dose” (Tr.238). According to Overstreet, Dumas “filled but never took either
[the “invega 3 mg and zoloft 100mg” ordered by Dr. Billett at her intake on March 3,
2008]” (Tr. 238). Overstreet explained to Dumas “how to titrate up to start and down if
needed to stop” these prescription drugs, because Dumas reported being “fearful of side
effects” (Tr. 238). Overstreet also reported that Dumas had no suicidal or homicidal
ideation, no symptoms of psychosis or mood swing, no self mutilation, and her sleep was
good. Overstreet set forth a plan for Dumas to return in one month “or next available
[appointment]”and to “restart Zoloft at lower dose, 25 mg in am x 7 days then 50mg
daily” (Tr. 238).
Dumas did not return until October 21, 2008, at which time she was seen by Florin
Ghelmez, M.D. (Tr. 237). She reported to him that she had stopped taking her Zoloft
after she had one of two seizures for which she did not seek medical care “because of
insurance problems” (Tr. 237). She also reported “some unusual perceptual experiences
like some children in her neighborhood being stuck at the same age or a preacher that
died and came back alive” (Tr. 237). Dr. Ghelmez noted, however, that Dumas “does not
seem preoccupied by [these] thoughts [and] [h]er mood is OK despite stopping the
Zoloft” (Tr. 237). Dr. Ghelmez also reported that “[s]he says the only reason she came to
this clinic is because a cousin told her to [come] so she could get social security” (Tr.
237). Dr. Ghelmez opined that Dumas did not have a psychotic disease but, rather,
“schizotypal personality disorder” (Tr. 237). He set forth a plan for Dumas to
discontinue Zoloft, continue on no medications and return in three months (Tr. 237).
Dumas was hospitalized at Mobile Infirmary from February 26-28, 2009, with a
complaint of a seizure episode the night previous to admission lasting 10 to 15 minutes,
without bowel or bladder incontinence (Tr. 279-301). Dumas reported to a consulting
physician, John G. Yager, M.D., that she had a previous seizure "maybe a year or two
ago" (Tr. 284). A head computerized tomography scan was negative for an acute process
(Tr. 289, 300), and she had no seizure activity during hospitalization (Tr. 289). Dumas
received a loading dose of Dilantin7 in three doses of 300 mg on February 27, 2013, and
was discharged on February 28, 2009 with a prescription for Dilantin 100 mg three times
a day (Tr. 280, 284). Dumas’s discharge medications also included hydrochlorothiazide,8
Dilantin (phenytoin) is an anti-epileptic drug, also called an anticonvulsant, that works by
slowing down impulses in the brain that cause seizures and is used to control seizures. See
Hydrochlorothiazide is a thiazide diuretic (water pill) that helps prevent your body from
absorbing too much salt, which can cause fluid retention, and is also used to treat high blood pressure. See
Lisinopril,9 and Omeprazole10 (Tr. 280). Dumas was instructed to “followup with either
the Franklin Clinic or USA Neurology (Tr. 284).
Dumas returned to Altapointe on April 3, 2009, to see Dr. Ghelmez because “she
needs SSD” (Tr. 316). She told Dr. Ghelmez that she is depressed but he noted:
She smiles and make[s] small jokes. No psychomotor retardation or
agitation. No loss of energy. No concentration problems noted. No
hopelessness or helplessness. No racing thoughts. No pressured speech.
No irritability. No elevation of the mood. No grandiosity. No [audio or
visual hallucinations]. She does not seem preoccupied with delusional
thoughts. She told the RN she is ‘delusional’ but only mentioned numbness
on the left side of her back. . . . She is asking me to fill disability papers but
it is our policy not to fill those type of papers.
(Tr. 316). Dr. Ghelmez further noted in his plan for Dumas that “[t]his patient has no
psychiatric symptoms at this time, therefore needs no follow up appointment [but] she
can return to clinic in the future if she has psychiatric problems” (Tr. 316).
Dumas was seen a number of times at Franklin Primary Health Center, Inc.
(“Franklin Clinic”) between April 9, 209 and June 15, 2010. Specifically, on her April 9,
2009, visit to Franklin Clinic, Dumas received a refill of her antiseizure and
antihypertension medications and her records indicate that she demonstrated a normal
musculoskeletal, neurological, and mental functioning (Tr. 321-322). On her May 1,
2009, it was noted that Dumas's hypertension was controlled (Tr. 320). On June 15, 2009,
Lisinopril is in a group of drugs called ACE inhibitors is used to treat high blood pressure
(hypertension). See http://www.drugs.com/lisinopril.html. It was noted that Dumas’s blood pressure was
“well controlled” with the Lisinpril and Hydrochlorothiazide (Tr. 280).
Omeprazole (Prilosec) belongs to group of drugs called proton pump inhibitors that
decreases the amount of acid produced in the stomach and is used to treat symptoms of
gastroesophageal reflux disease (GERD) and other conditions caused by excess stomach acid.
Christopher L. Hall, M.D., a physician at Franklin, noted normal musculoskeletal and
neurological functioning, and concluded that Dumas's seizure disorder and hypertension
were stable (Tr. 317-318). On September 8, 2009, Dumas was noted to have normal
ranges of motion of the hips and shoulders, and normal neurological functioning, and
controlled hypertension (Tr. 327-328).
On December 1, 2009, Dumas reported to the Franklin Clinic that she was not
aware of having any seizures since February (presumably 2009) (Tr. 325). The Clinic’s
progress note reports normal musculoskeletal and neurological functioning (Tr. 325).
When Dumas presented at Franklin Clinic on December 30, 2009, a nonphysician
provider noted normal neurological functioning, including intact cranial nerve
functioning (Tr. 323).
On June 15, 2010, Anita R. Smith, M.D., a physician at Franklin Clinic, examined
Dumas (Tr. 218-219, 341-342). Dumas reported that she was out of antiseizure
medication but had not had a seizure in one year; and she denied that she was prone to
falls (Tr. 341). Examination revealed a small right knee effusion without erythema, and
intact cranial nerve functioning (Tr. 341). Dr. Smith diagnosed a seizure disorder and
osteoarthritis, and restarted antiseizure medication and prescribed nonsteroidal antiinflammatory medication (Tr. 324).
On January 12, 2009, Hope Jackson, Ph.D., reviewed the evidence on file and
completed a Mental Residual Functional Capacity Assessment based on that review (Tr.
245). Dr. Jackson concluded that Dumas was not significantly limited in her ability to
remember locations and work-like procedures; to understand, remember and carry out
detailed instructions; to perform activities within a schedule; to maintain regular
attendance and be punctual within customary tolerances; to sustain an ordinary routine
without supervision; to work in coordination with or proximity to others without 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 unreasonable number and length of rest periods; to
ask simple questions or request assistance; to maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness; 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 (Tr. 245-246). The only
areas identified by Dr. Jackson as moderately limiting to Dumas included the ability to
maintain attention and concentration for extended periods; to interact appropriately with
the general public; to accept instructions and respond appropriately to criticism from
supervisors; to get along with coworkers or peers without distracting them or exhibiting
behavioral extremes; and to respond appropriately to changes in the work setting (Tr.
245-246). Dr. Jackson opined that Dumas “can underand [sic] sustain attention for 2hr
intervals” (Tr. 247).
An examination of Dumas by Jennifer M. Jackson, Psy.D., a consultative
psychologist, on April 19, 2010, revealed that she was oriented and demonstrated no
obvious fine or gross motor skill difficulties; her behavior appeared rather dramatic and
histrionic; her grooming was good; her mood appeared euthymic, with smiling and
occasional laughter; her speech was easily understood; her memory was intact; there were
no signs of confusion; her judgment seemed fair; and she was estimated to function in the
average range of intelligence (Tr. 335-337). Dumas informed Dr. Jackson about being
treated previously but not currently for depression, and reported seeing a shadow once or
twice a year of which she was not afraid (Tr. 334, 337). She also reported being able to
stay home unsupervised, to care for her personal needs, to perform household chores, and
to shop (Tr. 339). Personality testing revealed a tendency to exaggerate problems in an
attempt to appear psychologically disturbed (Tr. 337). Dr. Jackson diagnosed a
personality disorder (Tr. 338), and concluded that Dumas's ability to understand,
remember, and carry out instructions was not affected by her mental condition and that
her abilities to interact appropriately with others, and respond appropriately to usual work
situations and to changes in a routine work setting were mildly affected by her mental
condition (Tr. 332).
The Administrative Law Judge’s Decision.
After considering all of the evidence, the ALJ found that Dumas’s hypertension,
and osteoarthritis of the left side and knees were severe impairments but that her
schizotypal personality disorder was not “severe” and she did not have an impairment or
a combination of impairments listed in or medically equal to one listed in 20 C.F.R. pt.
404, subpt. P., app. 1 (Tr. 37-38).
With specific respect to Dumas’s complaint of seizures, the ALJ noted that on a
“Questionnaire for a Description of seizures and Treatment of Seizures” completed by
Dumas February 5, 2009, she claimed to have been having seizures for two years and
could not identify the dates for the first two seizures but recalled that the third seizure
took place on November 27, 2008 and lasted 15 minutes (Tr. 40, 181). The ALJ also
noted that, during this seizure, Dumas claimed to bite her tongue and have jerking
motions of her arms and legs but never lost control over her bladder and, after the seizure,
was able to do whatever was being done before the attack and did not remember the
attack or how long it lasted (Tr. 40, 181). The ALJ also noted Dumas’s hospitalization
on February 26 to February 29, 2009 for a seizure episode the night prior to admission
(Tr. 43, 279-301). A CT scan of Dumas’s head performed during that hospitalization was
negative and she exhibited no episodes of seizure activity during the hospitalization (Tr.
43, 289). The ALJ also found that “no physician has been seen recently for treatment of
seizures” (Tr. 40) and:
Attempts to retrieve clinical information regarding the claimant’s allegation
of seizures has been unsuccessful because claimant has not sought medical
attention, the claimant does not take any anti-seizure medication and,
therefore, the claimant’s seizure activities cannot be measured; therefore
those allegations are considered to be non-severe.
(Tr. 43). Dumas does not challenge these findings and conclusions.
The ALJ determined that Dumas’s mental impairment did not satisfy the
“paragraph B criteria” because she did not have “at least two of the following: marked
restriction of activities of daily living; marked difficulties in maintaining social
functioning; marked difficulties in maintaining concentration, persistence, or pace; or
repeated episodes of decompensation, each of extended duration” (Tr. 38)11. The ALJ
The ALJ noted that “[a] marked limitation means more than moderate but less than extreme”
also rejected the opinion of Dr. Hope Jackson that Dumas had moderate difficulties
maintaining social functioning, concentration, persistence or pace, part of her January 20,
2009 assessment of Dumas’s records (Tr. 259)12, and found that she had only mild
difficulties in those areas (Tr. 38). Although rejecting some of the opinions expressed by
personnel of AltaPointe (Tr. 46), the ALJ found credible the notes by Dr. Ghelmez on
April 3, 2009, disclosing that:
[C]laimant told her therapist she needs social security disability, as
claimant spoke of depression but she [smiles] and makes small jokes. No
psychomotor retardation or agitation was shown. No concentration
problems were noted. No hopelessness or helplessness, no racing thoughts,
no pressured speech, no irritability, no elevation of mood, no grandiosity
with no auditory or visual hallucinations. . . [C]laimant asked for therapist
to complete disability forms but it is our policy not to fill those type of
(Tr. 43, citing Tr. 316). The ALJ also assigned significant weight to the report of
Jennifer M. Jackson, Psy.D., an examining consultant clinical psychologist, who reported
that she administered the Minnesota Multiphasic Inventory–II (MMPI-II) test which
revealed that Dumas has “a tendency to exaggerate problems in an attempt to appear very
psychologically disturbed” (Tr. 45, 337). The ALJ found that “[t]his over endorsement of
symptoms is supported by her history as noted in the record from Altapointe Health
System which indicated “no symptoms of psychosis or mood swings,” and the last note
stated “no psychiatric symptoms at this time.” (Tr. 45, 316).
Dr. Hope Jackson’s January 20, 2009 review was for the period from July 1, 2007 until
December 12, 2008 (Tr. 249) while the January 22, 2009 review encompasses July 1, 2007 to June 30,
2008, Dumas’s date last insured (Tr. 263). In both reviews, Dr. Hope Jackson opines that Dumas has
moderate difficulties (Tr. 249, 273) in areas the ALJ finds merely mild difficulties (Tr. 38, 42-43).
Based on all the evidence of record, particularly the opinion of Dr. Jennifer
Jackson, the ALJ concluded that, as of June 30, 2008, and thereafter, Plaintiff retained the
residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b),13 reduced by limitations from work not allowing mild to
moderate postural limitations and avoidance of heights and machinery (Tr. 38). Dumas
does not challenge the ALJ’s RFC determination on any grounds of physical impairment,
such as an inability to satisfy the walking, standing, sitting or lifting requirements.
Rather, Dumas challenges only on the basis of an alleged mental impairment.
Vocational Expert Testimony.
The ALJ relied upon the testimony of Barry Murphy, a vocational expert. (Tr.
280-285). Mr. Murphy was asked to give an exertional and skill level of Dumas’s most
significant past work (Tr. 66). He testified that Dumas's past work as a housekeeper, a
teacher's aide, and a retail stock clerk were light jobs (Tr. 66). He also testified that an
individual with the residual functional capacity to perform light work reduced by mild to
moderate postural limitations and work allowing avoidance of hazards such as dangerous
machinery and heights, would be able to perform those jobs (Tr. 66). He further testified
that, considering an individual of Dumas's age, educational level, and vocational history,
with the residual functional capacity determined by the ALJ, jobs existed in the regional
and national economies such an individual could perform (Tr. 66). He testified that such
Light work involves sitting two hours, walking and standing six hours, and lifting no more than
20 pounds at a time. See 20 C.F.R. §§ 404.1567(b), 416.967(b) (2012); Social Security Ruling (S.S.R.)
83-10, 1983 WL 31251, at *5.
an individual could perform light, unskilled work as a mail clerk in a non-postal capacity
(DOT 209.687-026) with 1800 such jobs available in the state and 250,000 available in
the national economy (Tr. 67). He also identified light, unskilled work as a cashier
(DOT 211.462-010) with 18,000 such jobs available in the state and 1.5 million available
in the national economy (Tr. 67). He also testified that there was light packing job (DOT
920.686-038) with 1200 such jobs available in the state and 350,000 available in the
national economy (Tr. 67).
Dumas argues, in sum, that she “received treatment for more than one year for a
mental impairment” and that her mental impairment must be deemed “severe” because, at
her intake on March 3, 2008, at Altapointe, Dr. Billett noted her inappropriate general
appearance, sad mood, blunted affect, poor hygiene, impaired concentration, vague and
circumstantial speech, naive insight and delusions, and opined that she had either
schizophrenia or schizoaffective disorder. (Doc. 13 at 4; see also Tr. 239-243). Dumas
also relies on her visit to Altapointe on July 11, 2008, because she was given another
prescription for Zoloft. She also relies on her third visit to Altapointe on October 21,
2009, because “Dr. Ghelmez stated that [she] had a schizotypal personality disorder.”
(Id.; see also Tr. 238, 237). Although Dumas acknowledges that she “was released from
Altapointe’s care on April 3, 2009,” her fourth visit, she completely ignores the opinions
Dr. Ghelmez reported in the progress note, including his diagnosis that Dumas “has no
psychiatric symptoms at this time, therefore needs no follow up appointment (Tr. 237)”
and his observation that she came to Altapointe merely to obtain documentation for social
security benefits. Dumas maintains that “[in order for] an impairment to be non-severe,
‘it [must be] a slight abnormality which has such a minimal effect on the individual that it
would not be expected to interfere with the individual’s ability to work, irrespective of
age, education, or work experience’.” (Doc. 13 at 3, quoting Brady v. Heckler, 724 F.2d
914, 920 (11th Cir. 1984)). In addition to the diagnostic labels attributed to Dumas as set
forth above, Dumas relies on the assessment made by Dr. Hope Jackson on January 12,
2009, that she suffers from certain moderate limitations in her ability to maintain
attention and concentration for an extended period of time (Tr. 245), to respond
appropriately to changes in the work setting (Tr. 246), and to interact appropriately with
co-workers, supervisors or the general public (Tr. 246).14
The Commissioner argues, in sum, that the ALJ’s determination regarding the
severity of Dumas’s mental impairment was consistent with the opinions of Dr. Ghelmez,
Dr. Jennifer Jackson, and Dumas’s own statements and was, therefore, supported by
substantial evidence. (Doc. 19 at 11). The Commissioner further asserts that Dumas’s
reliance upon the mere diagnosis of psychosis-related mental disorders is misplaced
because it is the resultant functional limitations arising from such disorders, if any, that
must be used by the Commissioner to formulate a claimant’s residual functional capacity.
(Id., citing, 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520, 416.920
Dumas also relies on Dr. Hope Jackson’s assessments on January 20 and 22, 2009, of
moderate limitations associated with social functioning and ability to maintain concentration,
persistence and pace (Tr. 259, 273).
(2012) (impairments must be so functionally limiting as to preclude either past work or
any other work existing in significant numbers in national economy).
Dumas has the burden of proving her disability by establishing a physical or
mental impairment lasting at least twelve months that prevents her from engaging in any
substantial gainful activity. See Barnhart v. Walton, 535 U.S. 212, 220 (2002); 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines "physical or mental impairment" as "an
impairment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). Dumas is required to show that
her impairments were so functionally limiting as to preclude either her past work or any
other work that existed in significant numbers in the national economy. See 42 U.S.C. §§
423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520, 416.920 (2012) (an individual who
files an application for disability benefits must prove she is disabled). Dumas must show
that her disability, not simply her impairment, has lasted for at least twelve consecutive
months. See Walton, 535 U.S. at 220.
Further, in order to establish her eligibility for DIB, Dumas must establish that she
became "disabled," that is, unable to engage in any substantial gainful activity, prior to
the expiration of her insured status. See Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir.
1981))(Claimant “must show that she was disabled on or before the last day of her
insured status.”).15 See also, Morgan, supra, 2008 WL 4613060 at * 13 (If a claimant
becomes disabled after she has lost insured status, her claim for disability must be denied,
despite her disability). Dumas’s earning record shows that she was insured through June
30, 2008, but not thereafter (Tr. 144). Therefore, she was required to establish the onset
of disability on or prior to June 30, 2008. Thus, the relevant time period in this case is
between July 1, 2007, Dumas's alleged onset date, and June 30, 2008, the date she was
last insured, for purposes of DIB.
Despite Dumas’s assertions to the contrary, her mental disorder is not severe and
the ALJ did not err in failing to find that she suffered a severe mental impairment. The
Commissioner does not dispute that Dumas was diagnosed with schizotypal personality
disorder. However, the presence of an ailment does not automatically entitle a claimant to
disability benefits; there must be a showing of related functional loss or impairment. See
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). No such functional loss or impairment has
been documented in this case. In fact, the record supports the opposite.
In this case, Dr. Ghelmez, a treating physician, declared that Dumas “has no
psychiatric symptoms at this time, therefore needs no follow up appointment” (Tr. 237).
The medical records contain the following objective findings regarding Dumas's mental
functioning: she was goal-directed (Tr. 239), and demonstrated normal behavior and the
absence of psychomotor retardation or agitation (Tr. 237, 316), normal speech (Tr. 237Decisions of the former Fifth Circuit rendered prior to October 1, 1981, are binding precedent
on the Eleventh Circuit. Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir.1981) (en
238, 316, 336-337), logical, coherent thoughts (Tr. 237, 241, 316), normal perceptions
(Tr. 237, 316), intact memory (Tr. 237, 241, 316, 336), normal concentration (Tr. 237,
316), the absence of signs of confusion (Tr. 337), and fair judgment (Tr. 337). Dumas
was also found to be alert (Tr. 307-309), and oriented (Tr. 241, 307-309, 336), and
demonstrated good grooming (Tr. 237-238, 316, 335), a normal, euthymic mood, with
smiling and occasional laughter (Tr. 237, 316, 336), an appropriate affect (Tr. 237, 316),
and estimated average intellectual functioning (Tr. 337). In addition, Dumas denied
experiencing hallucinations (Tr. 237), or reported seeing a shadow once or twice a year of
which she was not afraid (Tr. 337); and Dr. Ghelmez noted that Plaintiff did not appear
preoccupied with delusional thoughts (Tr. 316). Dumas also reported having an "OK"
mood despite discontinuing antidepressant medication (Tr. 237) and Dr. Ghelmez
concluded that she required no follow up appointment and recommended continuing
treatment with no medication (Tr. 237, 316). These favorable objective medical findings
clearly support the ALJ’s decision. See Bridges v. Bowen, 815 F.2d 622, 625 (11th Cir.
1987)(Upheld ALJ’s finding that “[a]lthough the claimant alleges symptomatology of a
disabling nature, his symptoms are not fully corroborated by laboratory and clinical
findings.”). See also Bowen v. Yuckert, 482 U.S. 137, 154 (1987), in which the
Supreme Court acknowledges that a ruling had issued from the Secretary of Social
Security “[t]o clarify the policy for determining when a person's impairment(s) may be
found ‘not severe’....,” providing, in pertinent part:
“An impairment or combination of impairments is found ‘not severe’ and a
finding of ‘not disabled’ is made at [step two] when medical evidence
establishes only a slight abnormality or a combination of slight
abnormalities which would have no more than a minimal effect on an
individual's ability to work even if the individual's age, education, or work
experience were specifically considered ( i.e., the person's impairment(s)
has no more than a minimal effect on his or her physical or mental
ability(ies) to perform basic work activities).”
482 U.S. at 154, n. 12, quoting Social Security Ruling 85–28 (1985).
In light of the above findings from Dumas’s medical records, her reliance on the
assessments of a non-treating, non-examining consultant, Dr. Hope Jackson, is
misplaced. The ALJ is required to consider several factors when evaluating all medical
opinions, including the length of the treatment relationship, the extent of the treatment
Relationship, the consistency of the opinion with other evidence, the physician's
specialization, and the degree to which the opinion is supported by the evidence. 20
C.F.R. §§ 404.1527(c), 416.927(c) (2012). The ALJ should also explain the weight given
to the opinion. 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii). In this case, Dr.
Ghelmez, a treating physician, concluded that Dumas had no psychiatric symptoms (Tr.
316). Similarly, Dr. Jennifer M. Jackson, an examining clinical psychologist, concluded
that Dumas's ability to understand, remember, and carry out instructions was not affected
by her mental condition; and that her abilities to interact appropriately with others, and
respond appropriately to usual work situations and to changes in a routine work setting
were only mildly affected by her mental condition (Tr. 332). The opinions of Drs.
Ghelmez and Jennifer M. Jackson were supported by the favorable objective medical
findings discussed above.
The ALJ's decision regarding Dumas's mental functioning was also consistent with
the opinion of Dr. Ghelmez, her treating psychiatrist. If the Commissioner finds that a
treating source's opinion on the issues of the nature and severity of the claimant's
impairments is well supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the claimant’s
case record, the Commissioner will give it controlling weight. See 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2) (2012); see also Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997) (treating physician testimony must be given substantial or considerable
weight unless good cause is shown to the contrary.).
The ALJ's decision regarding Plaintiff's mental functioning was also consistent
with the opinion of Dr. Jennifer M. Jackson, an examining licensed psychologist. See
Flowers v. Commissioner of Social Security, 441 Fed.Appx. 735, 742 (11th Cir. 2011)
(“[A]n ALJ generally gives treating and examining physicians' opinions more weight.”).
Even evidence from a non-examining, non-treating physician can be relied upon when it
is consistent with the record. See e.g., Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th
Cir. 1991) (“[T]he report of a non-examining doctor is accorded little weight if it
contradicts an examining doctor's report; such a report, standing alone, cannot constitute
substantial evidence.”); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984)(“[T]he
testimony of a non-examining, non-treating physician should be discounted and is not
substantial evidence when totally contradicted by other evidence in the record [but] the
testimony of a non-examining physician can be relied upon when it is consistent with the
record.”). See also, KDB ex rel. Bailey v. Social Security Administration Commissioner,
444 Fed.Appx. 365, 367 (11th Cir. 2011)(“[A]dministrative law judges must consider
findings and other opinions of State agency medical and psychological consultants and
other program physicians, psychologists, and other medical specialists as opinion
evidence” of non-examining sources.), quoting 20 C.F.R. § 404.1527(f)(2)(i). S.S.R. 966p, 1996 WL 374180, at *2-3 (findings made by State agency physicians must be treated
as expert opinion evidence). The ALJ in this case appropriately assigned significant
weight to Dr. Jennifer Jackson’s assessment of Dumas.
Dumas herself reported that she required no special reminders to care for her
personal needs or to take medication (Tr. 175); that she could stay home unsupervised
(Tr. 339), and go out alone (Tr. 176-177); and that her condition did not affect her
abilities to complete tasks, understand, or follow instructions (Tr. 178). The
Commissioner may rely on a claimant's own statement of limitations in evaluating
disability. See McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000).
Since the ALJ's determination with respect to the severity of Dumas’s mental
impairment was consistent not only with the opinions of Drs. Ghelmez and Jennifer M.
Jackson, but Dumas’s own statements, substantial evidence supported the ALJ's
assessment of Dumas's functional limitations in this case. Dumas's reliance upon the
mere diagnoses of psychosis-related mental disorders by Drs. Billett, Ghelmez, and
Jennifer M. Jackson, is misplaced because the mere diagnosis of a disorder, absent any
resultant functional limitations, is insufficient to formulate a claimant's residual
functional capacity. See 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§
404.1520, 416.920 (2012) (impairments must be so functionally limiting as to preclude
either past work or any other work existing in significant numbers in the national
In contrast, Dr. M. Hope Jackson's findings of moderate limitations in certain
specific areas of mental functioning, were not consistent with either the opinions of
Dumas’s treating physician, Dr. Ghelmez, or examining consultant, Dr. Jennifer Jackson,
or Dumas’s own statements. Evidence from a non-examining, non-treating physician can
be relied upon only when it is consistent with the record. Jarrett v. Commissioner of
Social Sec., 422 Fed.Appx. 869, 873 (11th Cir. 2011)(“The weight due to a nonexamining physician's opinion depends, among other things, on the extent to which it is
supported by clinical findings and is consistent with other evidence.”).
The Commissioner also distinguishes between summary conclusions derived from
the evidence, as were Dr. Hope Jackson’s findings (Tr. 245-246), which merely aid in
deciding the presence and degree of functional limitations and the adequacy of
documentation, and do not constitute the residual functional capacity assessment, see
Program Operations Manual System (POMS) § DI 24510.060B.2, and the actual mental
residual functional capacity assessment. See POMS § DI 24510.060B.4. Moreover, it is
the ALJ's duty under the regulations to review the evidence and make the requisite
findings of fact and conclusions of law, including the determination of a claimant's
residual functional capacity. See 20 C.F.R. §§ 404.1527(e)(2), 404.1546, 416.927(e)(2),
416.946 (2012). It was not a duty delegated to Dr. Hope Jackson.
In addition to the objective medical evidence discussed above, the ALJ expressly
considered activities in which Dumas engaged, and concluded that she had only a mild
limitation in activities of daily living (Tr. 38-43, 45). Dumas cared for her personal
needs without difficulty (Tr. 59, 65, 173-174, 240, 339), performed household chores (Tr.
60, 64-65, 173, 175, 339), prepared complete meals (Tr. 64-65, 173, 175), used public
transportation (Tr. 176), shopped (Tr. 60, 173, 176, 339), and attended church services
(Tr. 177). The ALJ may consider evidence regarding a claimant's daily activities in
assessing credibility. See Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987)(“The
regulations do not, however, prevent the ALJ from considering daily activities at the
fourth step of the sequential evaluation process.”). See also Strouse v. Colvin, 2013 WL
3063718, * 7 (M.D.Fla. June 18, 2013)(“The ability to engage in everyday activities of
short duration such as housework or fishing does not disqualify a claimant from receiving
disability benefits [but] an ALJ may properly rely on a claimant's daily activities, among
other evidence, in assessing a claimant's credibility.”). The ALJ also noted in his
decision (Tr. 41) that Dumas reported seeking employment, albeit with difficulty (Tr.
238). See Turner v. Commissioner of Social Security, 182 F. App'x 946, 949
(11th Cir. 2006)(Social Security disability claimant's activities including her admission
that she looked for work while she was allegedly disabled, were inconsistent with her
complaints of disabling symptoms).
Dumas also made statements which indicated to her treating physician that she
was seeking mental health treatment only to obtain Social Security benefits. She told Dr.
Ghelmez in October 2008, that she came because a relative "told her to so she could get
Social Security" (Tr. 237); and in April 2009, that she "need[ed] SSD[,]" at which time
Dr. Ghelmez noted multiple inconsistencies on examination and concluded that Dumas
had no psychiatric symptoms (Tr. 316). The records also reflect that Dumas declined
medication for reported magical thinking (Tr. 238) and “filled but did never took either”
the invega or Zoloft prescribed at her first visit to Altapointe (Tr. 238). It is proper for
ALJ to consider failure to seek treatment. See Mack v. Commissioner of Social Security,
420 Fed.Appx. 881, 882-883 (11th Cir. 2011)(“An individual who would otherwise be
found to be under a disability, but who fails without justifiable cause to follow treatment
prescribed by a treating source which the [SSA] determines can be expected to restore the
individual's ability to work, cannot by virtue of such “failure” be found to be under a
disability.”)(quoting SSR 82–59 at 2 (1982)); see also 20 C.F.R. §§ 404.1530; u, 848
F.2d 1211, 1213 (11th Cir.1988)(failure to follow prescribed medical treatment will
preclude a finding of disability); Watson v. Heckler, 738 F.2d 1169, 1173 (11th Cir.
1984)(ALJ properly considered claimant’s “failure to seek treatment after June 1981
(until after the denial of benefits by the administrative law judge).”).
Additionally, Dr. Jennifer M. Jackson noted, inter alia, that personality testing
revealed a tendency of Dumas to exaggerate problems (Tr. 336-337). See Anderson v.
Barnhart, 344 F.3d. 809, 815 (8th Cir. 2003) (citing Jones v. Callahan, 122 F.2d 1148,
1152 (8th Cir. 1997) (an ALJ may consider evidence that a Social Security disability
claimant exaggerated his symptoms when evaluation the claimant's subjective complaints
of pain)); Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990) (false or exaggerated
responses are entitled to weight in determining whether an impairment existed). In view
of the inconsistencies in the record, the ALJ was permitted to disbelieve Dumas’s
subjective complaints of disabling limitations.
The ALJ correctly determined that, considering the record as a whole, Dumas
could perform a reduced range of light work. The ALJ's decision was supported by
substantial evidence and is a correct application of the law and regulations.
For the reasons stated above, the Court concludes and it is therefore ORDERED
that the decision of the Commissioner denying plaintiff’s application for disability
benefits is supported by substantial evidence and is due to be and is hereby AFFIRMED.
26th day of August, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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