Sullivan v. Colvin

Filing 21

Order entered that the decision of the Commissioner of Social Security denying Plaintiff's claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/31/2015. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VANESSA L. SULLIVAN,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

CIVIL ACTION NO. 14-00009-B

ORDER
Plaintiff

Vanessa

L.

Sullivan

(hereinafter

“Plaintiff”)

brings this action seeking judicial review of a final decision
of the Commissioner of Social Security denying her claim for a
supplemental

security

income

under

Title

Security Act, 42 U.S.C. §§ 1381, et seq.
the

parties

waived

oral

undersigned

conduct

any

(Docs.

18).

Thus,

17,

XVI

and

and

proceedings

the

action

the

Social

On October 22, 2014,

argument
all

of

consented

was

in

to

have

this

referred

the

case.

to

the

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

Civil

Procedure

73.

Upon

careful

consideration

of

the

administrative record and the memoranda of the parties, it is
hereby

ORDERED

AFFIRMED.

that

the

decision

of

the

Commissioner

be

I.

Procedural History
Plaintiff filed an application for supplemental security

income on June 16, 2010.1

(Tr. 167).

has

May

been

disabled

arthritis.”
denied,

since

20,

(Id. at 167, 172).

and

upon

timely

Plaintiff alleged that she

2001,

due

to

“seizures

and

Plaintiff’s application was

request,

she

was

granted

an

administrative hearing before Administrative Law Judge Thomas M.
Muth II (hereinafter “ALJ”) on November 17, 2011.
Plaintiff

attended

daughter,

and

the

Plaintiff

related to her claims.
expert

(“VE”)

testimony.

also

hearing

with

and

daughter

her

her

counsel
provided

(Id. at 51, 55, 68).

appeared

(Id. at 72).

at

the

(Id. at 51).

hearing

and

her

testimony

A vocational
and

provided

On February 10, 2012, the ALJ issued

an unfavorable decision finding that Plaintiff is not disabled.
(Id. at 46).

The Appeals Council denied Plaintiff’s request for

review on November 15, 2013.

(Id. at 1).

Thus, the ALJ’s

decision dated February 10, 2012 became the final decision of
the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

agree that this case is now ripe for judicial review and is
1

Plaintiff filed a prior application on November 27, 2001, and
was awarded disability benefits on July 25, 2002, as a result of
the severe impairments of a seizure disorder and osteoarthritis.
(Tr. 89-93).

2

properly before this Court pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3).
II.

Issues on Appeal
A.

Whether the ALJ erred in evaluating the
opinions of consultative examiners, Dr.
Keith Varden, M.D., and Dr. Kenneth
Starkey, Psy.D.?

B.

Whether the ALJ erred in evaluating the
testimony
of
Plaintiff’s
daughter
regarding the frequency of Plaintiff’s
seizures?

III. Factual Background
Plaintiff was born on December 31, 1958, and was fifty-two
years

of

age

at

November 17, 2011.

the

time

of

her

(Tr. 51, 167).

administrative

hearing

on

Plaintiff testified that she

completed the twelfth grade in high school.

(Id. at 55).

The

record also shows that Plaintiff attended Bishop State Community
College from 1991 to 1992 and from 1994 to 1995 and earned her
Early Childhood Education Certificate.2

(Tr. 223).

Plaintiff’s Work History Report shows that she last worked
in the day care industry from 1995 to 2002 as a teacher.
at 55, 179).

Plaintiff also served as a “Program Director” for

a daycare from 1995 to 1997.
that

she

(Id.

stopped

working

(Id. at 179).
in

2002

2

because

Plaintiff testified
she

began

having

In her Disability Report, Plaintiff stated that she had not
completed any type of specialized job training, trade, or
vocational school. (Tr. 173).

3

seizures on the job.

(Id. at 56).

She stated that she has

consistently had seizures at a rate of three or four a month
since 2002, which makes her unable to work.

(Id. at 56-57).

Plaintiff testified that she lives in a house with her
seventy-six year old mother and that her daughter and her sister
come over and do the housework, cooking, and grocery shopping.
(Id. at 59).
but

she

Plaintiff stated that she has a driver’s license,

does

not

drive.

(Id.

at

59-60).

According

to

Plaintiff, she gets up in the morning, gets dressed, watches
television, reads, goes outside for a few minutes to get fresh
air, and visits with friends who come over.
attends church two Sundays out of the month.
Plaintiff

reported

that

she

can

only

(Id. at 60).
(Id. at 65).
stand

for

fifteen minutes, but she can walk for twenty minutes.
57-58).

She

also

reported

that

she

minutes, and is able to lift five pounds.
Plaintiff

testified

that

she

had

can

She

sit

for

ten

to

(Id. at
about

ten

(Id. at 58, 67).
surgery

on

her

right

shoulder in 2008 and still has pain which she rated as an eight
on a ten-point pain scale.

(Id. at 60-61).

She also began

having arthritis pain in her left hand in October 2011, for
which she received a cortisone injection, which greatly improved
her condition.
Plaintiff’s

(Id. at 61-62).
medications

include

Norvasc

and

Hydrochlorothiazide (for high blood pressure), Trileptal (for

4

seizures), Celebrex (for arthritis), Nexium (for acid reflux),
Darvocet (for pain) and Zoloft (for depression).
63-64, 175).
medications

Plaintiff reported that the side effects from her
include

dizziness,

drowsiness,

confusion, double vision, and hostility.
IV.

(Id. at 57,

nausea,

headaches,

(Id. at 67, 197).

Analysis
A.

Standard of Review

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

is

a

limited

determining

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).

3

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.
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
3

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

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, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

§§

regulations
process

determining if a claimant has proven his disability. 4

4

C.F.R.

for

20 C.F.R.

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
6

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since June 16,
2010,

the

alleged

impairment

of

onset

date,

depressive

and

that

disorder,

she

has

the

mathematics

severe

learning

disorder, seizure disorder, impingement of the right shoulder
status post arthroscopic surgery, venous insufficiency, plantar
fasciitis, obesity, and radial styloiditis.

(Tr. 38).

The ALJ

further found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of
the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1.
The

ALJ

(Id.).
concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform light work,
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; and (4) the claimant’s age,
education and work history.
Id.
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, 836 (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

with the following exceptions: “The [Plaintiff] can lift and/or
carry ten pounds occasionally and items of negligible weight
frequently.

She can stand and/or walk for six hours and sit for

six hours.

She can occasionally perform pushing and/or pulling

with the right upper extremity, perform frequent pushing and/or
pulling

with

the

left

upper

extremity,

and

perform

frequent

pushing and/or pulling with the lower extremities bilaterally.
The

[Plaintiff]

stooping,

can

perform

occasional

frequent

kneeling,

balancing,

occasional

frequent

crouching,

no

crawling, and occasional climbing of ramps and stairs.

The

[Plaintiff]

can

and

scaffolds.

The [Plaintiff] can perform no overhead reaching

with

the

reaching

right
in

perform

arm.

other

no

The

climbing

[Plaintiff]

directions

[Plaintiff]

has

unlimited

[Plaintiff]

can

perform

of

with

reaching

frequent

ladders,

can

the

with

perform

right
the

handling,

ropes

frequent

arm.

left

The

arm.

The

bilaterally.

The

[Plaintiff] can perform frequent fingering with the left hand.
The [Plaintiff] has unlimited fingering with the right hand.
The [Plaintiff] can frequent[ly] perform feeling, bilaterally.
The [Plaintiff] can perform work that requires no

more than

occasional exposure to extreme heat and occasional exposure to
extreme

cold.

She

must

avoid

all

heights and dangerous machinery.

exposures

unprotected

The [Plaintiff] cannot work in

close proximity to unprotected bodies of water.

8

to

The [Plaintiff]

could perform no commercial driving.
one unplanned absence per month.
[work]

involving

instructions.
simple

simple

The [Plaintiff] would have

The [Plaintiff] could perform

routine

tasks

and

short,

simple

The [Plaintiff] could perform work involving only

work-related

decision[s]

with

few

work

place

changes.

The [Plaintiff] would be able to perform work that involves no
more than non-transactional and occasional interaction with the
public.

She can sustain concentration and attention for two-

hour periods with customary breaks.”
determined

that

while

(Id. at 40).

The ALJ also

medically

determinable

Plaintiff’s

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 described.
Given
unable

to

Plaintiff’s
perform

(Id. at 43).
RFC,

any

the

past

ALJ

found

relevant

that

work.

Plaintiff
(Id.

at

is

44).

However, utilizing the testimony of a VE, the ALJ concluded that
considering Plaintiff’s residual functional capacity for a range
of

light

work,

as

well

as

her

age,

education

and

work

experience, there are also other jobs existing in the national
economy

that

preparation

Plaintiff

worker”

is

(light

able
and

to

perform,

unskilled),

such

“storage

as

“food

facility

clerk” (light and unskilled), and “order clerk” (sedentary and
unskilled).

(Id.

at

45).

Thus,

9

the

ALJ

concluded

that

Plaintiff is not disabled.

(Id. at 46).

In assessing the Plaintiff’s RFC, the ALJ also made the
following relevant findings:
In a Disability Report, the claimant states
she is disabled from arthritis and seizures.
The claimant indicates she stands five feet
eight inches and weighs two-hundred
twenty
pounds.
The claimant indicates she stopped
working on May 1, 2001, because of other
reasons.
She kept having seizures on the
job; therefore, she quit working on May 1,
2001.
She indicates that she completed the
twelfth grade.
The claimant states she has
not completed any type of specialized job
training, trade, or vocational school.
The
claimant state[s] she worked as a childcare
worker at a day care from 1995 to 2001. The
claimant indicates that she lifted and
carried children that weigh between twentyfive pounds and fifty pounds (Exhibit B4E).
On July 27, 2010, the claimant in a
Questionnaire for Description of Seizures
and treatment for seizures notes she has
been having seizures since 2001. When asked
to give the date of the last three seizures,
the claimant named 2010.
The claimant
reports that she had twelve seizures or
more.
The claimant states that she blacks
out;
however,
she
does
not
experience
unconsciousness.
If a seizure is coming
on, the claimant state[s] she gets quiet[,]
gets headaches,
day [d]ream[s] and [makes]
noise with [her] mouth. The claimant states
she does not chew the tongue, but she has
jerking motion of the arms and legs.
The
claimant notes she loses control of her
bladder.
After an attack, she notes that
she goes to sleep.
After an attack, the
claimant states she feels tired for fortyfive to sixty minutes. The claimant states
she takes Tegretol for
seizures. The
claimant states she has side effects of
dizziness,
drowsiness,
nausea,
headache,
confusion, double vision, and hostility.

10

She gets her medicine refilled every three
months.
She sees Dr. Salter for seizures
and last saw him in May 2010.
She reports
she underwent magnetic resonance imaging and
CT in 2009.
The claimant reports she does
not drink beer, whiskey or alcohol in any
form (Exhibit B7E).
The medical evidence of record for the
period at issue, June 16, 2010, the date of
the application for supplemental security
income, discloses:
With regard to the alleged right shoulder
problems and arthritis, the medical evidence
shows that in July 2008, the claimant
underwent arthroscopy of her right shoulder,
arthroscopic
acromioplasty,
and
distal
clavicle excision.
J. Michael Cockrell,
M.D.,
performed
the
arthroscopic
procedures.
On July 18, 2008, Dr. Cockrell
notes the claimant still has trouble with
her right shoulder.
The magnetic resonance
imaging
reveals
AC
impingement
and
tendinitis.
At that point, the claimant
opted
for
arthroscopic
decompression
(Exhibit Bl2F, p. 3-4).
X-rays showed some
degenerative changes of osteoarthritis but
no significant focal arthritic problem such
as thumb CMC arthritis. Both of these areas
were injected with Celestone-1-ml (Id., p.
1).
On October 11, 2011, Dr. Ben Freeman
diagnosed
the
claimant
with
radial
styloiditis vs. Dequervain’s tenosynovitis
(Id., p. 1).
With regards to the alleged seizures, the
medical evidence shows that on September 15,
2010, Keith Varden, M.D., reports that the
claimant is a fifty-one year-old female who
presents with complaint seizures.
Dr.
Varden indicates she has osteoarthritis
of
her legs and all over and she has been off
work from teaching since 2001. The claimant
told Dr. Varden that her last seizure was
two weeks ago.
Dr. Varden notes the
claimant moves all extremities and has

11

muscle strength of 5/5, equal bilaterally.
Dr. Varden notes the claimant squats to
about fifteen degrees.
Her gait is slow,
but it is within normal range.
Vision is
20/25.
Dr. Varden diagnosed the claimant
with seizure disorder.
He noted that these
are not well controlled despite being on
anti-epileptics, having had seizures within
the last two or three weeks. He reports the
seizure disorder would put her at increased
risk for work-related activities currently.
Dr. Varden opines that until these can be
better controlled, he would consider her
disabled
from
normal
work-related
activities,
sitting,
standing,
walking,
carrying objects, traveling, and driving,
which would most likely impair her abilities
or put her at risk for most work-related
activities (Exhibit B7F).
With regards to venous insufficiency, I find
that Victor[y] Health Center records show
that on September 10, 2010, the claimant was
examined for right leg swelling of one year
with pain in the right heel.
Dr. Lightfoot
diagnosed the claimant with hypertension,
venous insufficiency, and plantar fasciitis
(Exhibit B6F, p. 2). On December 20, 2010,
the claimant was examined for earaches.
Notes disclose the claimant has swelling of
the feet - venous insufficiency better when
she wears hose (Exhibit 8F, pp. 3-5).
On
January 21,2011, the claimant received a
well check (Id., p. 1).
Records from
Victory Health Center, on April 28, 2011,
show
claimant
was
seen
for
medication
refills. [She] ran out of Norvasc-10-mg for
hypertension along with Zoloft.
Notes
disclose a co-morbid disease of seizure
disorder with no seizure activity while on
Trileptal. The claimant was diagnosed with
hypertension, not at goal, seizure disorder
controlled, and obesity. Lab records show
total cholesterol was high at 294 on May 5,
2011 (Id., p. 3).
On September 27, 2011,
notes disclosed the claimant was seen with
pain in her left shoulder and wrist.
Dr.

12

Lightfoot diagnosed the claimant with C4hand and wrist tenosynovitis,
hypertension
under
poor
control
and
compliance,
depression, and seizures.
There is (sic) treatment evidence does not
support an inference that the claimant would
have more than one seizure per month that
would interfere with work (Exhibits B6F,
Exhibit B8F, Exhibit B10F and Exhibit B13F).
The residual functional capacity includes
seizure precautions.
With regards to a depressive disorder and
mathematics learning disorder, the medical
evidence shows that on September 1, 2010,
Kenneth R. Starkey, Psy.D, examined the
claimant.
Dr. Starkey notes that symptoms
of depression appeared in partial remission,
at the time of the meeting.
Treatment for
her reported problems with seizures and
depression
has
been
limited
to
pharmacotherapy.
She has never received
outpatient counseling for problems with
depression. With regards to work-related
activities, Dr. Starkey notes the claimant
reports
prevailing
seizures
make
it
difficult to perform work duties.
Dr.
Starkey notes that her mother raised the
claimant and her father died when she was
eleven years old. Dr. Starkey indicates the
claimant completed the twelfth grade in
school. Dr. Starkey reports the claimant is
presently unemployed, and she last worked
full time as a teacher for the Open Door Day
Care for six months until 2001. Dr. Starkey
notes
her
husband
and
grandchildren
accompanied
the claimant.
She was able to
focus and sustain attention,
but with mild
and intermittent distraction from extraneous
stimuli. She struggled to complete the
serial three’s task without error, but
accurately spelled WORLD backwards.
She
states three plus four equal seven, but she
was unable to compute $1.00 minus >.17
(seemingly
due
to
computation
difficulties).
Dr. Starkey reports there

13

was evidence of flight of ideas, tangential
thinking, or loosening of associations.
Intellectual function was estimated to be in
the low average to borderline range.
Dr.
Starkey opines that her ability to focus and
sustain attention and for immediate memory
appear limited.
She reports both trials of
only four digits verbally presented in
random fashion, and both trials of only
three digits randomly
presented in reverse
order. She accurately
recalled only three
of
three
objects
verbally
presented
following a ten-minute delay.
With regards
to remote memory, the claimant reports
employment
and
school
dates
with
mild
difficulty.
Her fund of knowledge appears
somewhat limited.
She incorrectly reports
the number of weeks in a year to be twohundred and sixty-five. Dr. Starkey opined
that her insight and judgment appeared
limited. Dr. Starkey diagnosed the claimant
with Depressive Disorder-partial remission,
mathematics
disorder, and a current global
assessment of sixty-five.
Dr. Starkey
opines that the claimant’s progress appears
guarded
to
fair
(from
psychological
perspective).
Some additional improvement
of existing mild depressive symptoms might
occur over the next six months with more
formal psychiatric care and the addition of
weekly counseling.
Dr. Starkey opined that
the
claimant’s
ability
to
understand,
remember, and carry out simple and concrete
instructions appear adequate.
Her ability
to work independently
(vs. with Close
Supervision) also appear adequate now.
Her
ability to work with supervisors, co-workers
and public appears adequate. Her ability to
work with pressures common to most every day
work settings is marginal (Exhibit B3F). On
September 2, 2010, Ellen N. Eno, Ph.D., in a
Psychiatric Review Technique, opined that
the claimant reports difficulty with sleep;
she is able to take care of her personal
needs
with
few
modifications
for
mild
restriction of activities of daily living.
Dr. Eno notes that claimant often visits

14

others by phone and in person for a mild
functional
limitation
in
difficulties
maintaining social interaction. Dr. Eno
notes the claimant occasionally
forgets to
take prescribed medications and shops for
two-hour intervals, and is able to drive
when allowed due to her seizures.
Dr. Eno
notes that her attention span varies and she
does not usually complete tasks that she
starts, which are the source of a moderate
difficulties in maintaining concentration,
persistence, or pace.
Dr. Eno notes that
the claimant does not handle stress well,
but she is able to accept changes and she
reports depression and cries a lot (Exhibit
B4F, p. 11).
By moderate, Dr. Eno means
that the claimant has the ability to
understand, remember, and carry out very
short and simple instructions, as she could
attend for two-hour intervals (Exhibit B5F,
p. 3).
...
Dr. Varden diagnosed the claimant with
seizure
disorder,
not
well
controlled
despite being on medication, having had
seizures with[in] the last two or three
weeks.
He also stated these seizures would
put the claimant at increased risk for workrelated activities currently.
Dr. Varden
opines
that
until
these
are
better
controlled, he would consider her disabled
from normal work-related activities.
This
opinion concerning the claimant’s capacity
to work is not consistent with other medical
evidence of record regarding the lack of a
psychologically
medically
determinable
impairment and is inconsistent with the
other medical evidence of record.
As for the opinion evidence, the residual
functional capacity in Exhibit B5F and PRTF
in Exhibit B4F [both completed by Dr. Eno]
are generally consistent with the other
credible medical evidence of record and
thus,
merits
significant
weight.
The

15

opinions in Exhibit B3F [completed by Dr.
Starkey] are consistent with the other
credible medical evidence and, thus, merit
significant weight. The opinion in Exhibit
7F [completed by Dr. Varden] consultative
examination
opinion
concerning
the
claimant’s
capacity
to
work
is
not
consistent with other medical evidence of
record and thus, merits substantial but not
significant
weight.
The Consultative
examination report is not consistent with
the
other
medical
evidence
of
record
regarding
the
lack
of
a
psychological
medically
determinable impairment.
Thus,
it merits no substantial weight.
In
sum,
the
above
residual
functional
capacity assessment is supported by Dr.
Ellen Eno in Exhibit B4F and B5F, as they
are consistent with the other credible
medical
evidence,
and,
thus,
merit
significant weight. The opinion in Exhibit
B7F by K. Keith Varden, M.D., consultative
examination
opinion
concerning
the
claimant’s
capacity
to
work
is
not
consistent with the other medical evidence
of record and, thus, merits substantial but
not significant
weight.
The consultative
examination
report is not consistent with
the
other
medical
evidence
of
record
regarding
the
lack
of
a
psychological
medically determinable impairment.
Thus,
it merits no substantial weight.
(Id. at 41-44).

The Court now considers the foregoing in light

of the record in this case and the issue on appeal.
1.

Issue
A. Whether the ALJ erred in evaluating
the opinions of consultative examiners,
Dr. Keith Varden, M.D., and Dr. Kenneth
Starkey, Psy.D.?

Plaintiff

argues

that

the

16

ALJ

erred

in

rejecting

the

opinions of consultative examiners, Dr. Keith Varden, M.D., and
Dr.

Kenneth

seizure

Starkey,

disorder,

and

Psy.D,

regarding

adopting

the

the

opinion

reviewing psychologist, Dr. Ellen Eno, Ph.D.

severity
of

State

of

her

Agency

(Doc. 14 at 2).

The Commissioner counters that the ALJ properly weighed all of
the medical opinions at issue, considering their consistency, or
lack thereof, with the medical evidence of record, and that the
ALJ’s

RFC

determination

evidence in the record.

is

supported

by

(Doc. 15 at 2-6).

substantial

medical

Having reviewed the

record at length, the Court agrees that Plaintiff’s claims are
without merit.
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
404.1545.

See 20 C.F.R. §

Determinations of a claimant’s residual functional

capacity are reserved for the ALJ, and the assessment is to be
based upon all the relevant evidence of a claimant’s remaining
ability to work despite his or her impairments, and must be
supported by substantial evidence.
Supp.

2d

1323,

1331 (S.D.

Ala.

See Beech v. Apfel, 100 F.
2000)

(citing

20

C.F.R.

§

404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997)); Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10,
2012 WL 997222, *4 (M.D. Ala. March 23, 2012).
determined
claimant

the

bears

Plaintiff’s

residual

the

of

burden

17

Once the ALJ has

functional

demonstrating

capacity,

that

the

the

ALJ’s

decision is not supported by substantial evidence.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).

See Flynn v.
Plaintiff has

failed to meet her burden in this case.
As

previously

Plaintiff

has

the

stated,
severe

the

ALJ

concluded

impairments

of

that,

seizure

although
disorder,

depressive disorder, mathematics learning disorder, impingement
of the right shoulder status post arthroscopic surgery, venous
insufficiency,

plantar

fasciitis,

styloiditis, she is not disabled.

obesity,

and

(Tr. 38).

radial

In making this

determination, the ALJ relied upon Plaintiff’s medical records
from

her

treating

physicians,

the

report

of

consultative

psychological examiner Dr. Kenneth Starkey, Psy.D., the report
of State Agency reviewing psychologist Dr. Ellen Eno, Ph.D., and
the Plaintiff’s testimony.
this

evidence

confirms

(Id. at 41-44).

that

Plaintiff’s

As the ALJ found,
medical

conditions,

while significant, are not disabling in nature.5
To support her claim on appeal that her seizure disorder
and

depression

are

disabling,

Plaintiff

argues

that

the

ALJ

erred in giving greater weight to the opinions of State Agency
reviewer,

Dr.

Ellen

Eno,

Ph.D.,

6

than

those

of

consultative

5

On appeal, Plaintiff focuses only on her seizure disorder and
depression. (Doc. 14 at 4).

6

On September 2, 2010, Dr. Eno completed a Psychiatric Review
Technique finding that Plaintiff suffered from depressive
disorder resulting in no more than “mild” limitations in
18

physical

examiner

Dr.

Keith

Varden,

M.D.,

and

consultative

psychological examiner Dr. Kenneth Starkey, Psy.D.

However, the

record shows that the ALJ actually afforded the same weight,
i.e., “significant weight,” to the opinions of Dr. Starkey and
Dr. Eno, and he afforded “substantial” weight to Dr. Varden’s
opinions.

(Id. at 43-44).

Weighing the opinions and findings of treating, examining,
and non-examining physicians is an important part of steps four
and five of the disability determination process.

In reaching a

decision, the ALJ must specify the weight given to different
medical opinions and the reasons for doing so.

See Winschel v.

Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
The failure to do so is reversible error.

See Williams v.

Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009).
When
ALJ

weighing

the

opinion

of

a

treating

physician,

the

must give the opinions “substantial weight,” unless good

cause exists for not doing so.

Costigan v. Commissioner, Soc.

activities of daily living and social functioning, “moderate”
limitations in maintaining concentration, persistence, or pace,
and no episodes of decompensation.
(Tr. 262, 269).
Dr. Eno
also completed a Mental RFC assessment, finding “moderate”
limitations in three functional categories, and no significant
limitations in the remaining seventeen functional categories.
(Id. at 273). Dr. Eno opined that Plaintiff has the ability to
understand, remember, and carry out very short and simple
instructions and that she can attend for two hour intervals.
(Id. at 275).

19

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4
(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).

The opinion of “a

one-time examining physician — or psychologist,” on the other
hand,

is

not

entitled

to

the

same

deference

as

a

treating

physician, Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,
2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160), and an ALJ must have good cause to credit an
examining consulting physician’s opinion over that of a treating
physician.

See Adamo v. Commissioner of Soc. Sec., 365 F. Appx.

209, 213 (11th Cir. 2010).
opinion

of

a

Furthermore, absent good cause, the

non-examining

physician

is

entitled

to

little

weight if it is contrary to either the treating or examining
physician’s findings.

See Lamb v. Bowen, 847 F.2d 698, 703

(11th Cir. 1988); Broughton v. Heckler, 776 F.2d at 962.
The
discredit

foregoing
the

notwithstanding,

testimony

of

any

good

medical

cause
source

exists
when

contrary to or unsupported by the evidence of record.
v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004).

it

to
is

Phillips

“Good cause

may also exist where a doctor’s opinions are merely conclusory,
inconsistent with the doctor’s medical records, or unsupported
by objective medical evidence.”

Hogan v. Astrue, 2012 U.S.

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).

20

The

ALJ

is

[treating,

“free

to

reject

examining,

or

the

opinion

non-examining]

of
when

any
the

physician
evidence

supports a contrary conclusion.” Sryock v. Heckler, 764 F.2d
834,

835

(11th

Cir.

1985)

(per

curiam)

(citation

omitted);

Adamo, 365 Fed. Appx. at 212 (The ALJ may reject any medical
opinion if the evidence supports a contrary finding.).
Turning now to the opinions of Dr. Kenneth Starkey, Psy.D.,
who performed a mental examination and evaluation of Plaintiff
at the request of the Agency on September 1, 2010, his report
shows
‘off

that
and

Plaintiff

on

for

reported

about

12

“having

years,’”

problems

her

last

with

seizures

seizure

having

occurred “last month,” which would have been in August 2010. 7
(Id. at 255-56).
year

history

of

Plaintiff also reported that she had a twoproblems

with

depression;

however,

she

acknowledged that she was able to feed, bathe, groom, and dress
herself without assistance, prepare meals, manage money, shop
for groceries, and drive without assistance. 8

(Id. at 256).

7

Notably, the record reflects that on September 10, 2010, only
nine days after Plaintiff’s consultative examination by Dr.
Starkey, she was treated by her regular treating physician, Dr.
Robert Lightfoot, M.D., and his treatment notes do not reflect
that Plaintiff reported any recent seizure activity. (Tr. 277).

8

Plaintiff reported that, other than seizures and depression,
she had no other physical or psychological condition that would
prevent her from working.
(Tr. 256).
She further stated that
her treatment for both conditions had been limited to
medication. (Id.).

21

Dr. Starkey diagnosed Plaintiff with “depressive disorder” in
“partial remission,” and “mathematics disorder,” finding that
her mental abilities were largely “adequate” and her limitations
were largely “mild.”

(Id. at 257-58).

Dr. Starkey also noted

that Plaintiff’s insight and judgment were “limited,” and that
her

focus,

“somewhat

immediate

limited.”

memory,
(Id.).

and
He

fund

of

knowledge

concluded

that

were

Plaintiff’s

prognosis was “guarded to fair,” that her ability to understand,
remember,

and

carry

out

simple/concrete

instructions

was

“adequate,” and that her ability to work independently, with
supervisors,
“adequate.”
65. 9

with

co-workers,

(Id. at 258).

and

with

the

public

was

He also assigned her a GAF score of

Notwithstanding these findings, Dr. Starkey also opined

that Plaintiff’s ability to work with the pressures common to
most every day work settings “appears marginal.”
Plaintiff
reflects

Dr.

argues
Starkey’s

that

the

opinion

phrase,
that

her

severe that they prevent her from working.

9

(Id.).

“appears

marginal,”

limitations

are

so

It is clear that

According to the Diagnostic and Statistical Manual of Mental
Disorders (DSM–IV), Fourth Edition, the GAF scale is used to
report an individual’s overall level of functioning.
A rating
of 61–70 on the GAF scale indicates some mild symptoms or some
difficulty in social, occupational, or school functioning, but
generally
functioning
pretty
well,
with
some
meaningful
interpersonal relationships.
See generally Jackson v. Astrue,
2011 U.S. Dist. LEXIS 148347, *8, 2011 WL 6780744, *3 (S.D. Ala.
Dec. 27, 2011).

22

while the ALJ assigned significant weight to opinions expressed
by Dr. Starkey in his written evaluation, the ALJ implicitly
rejected

Dr.

Starkey’s

lone

statement

regarding

Plaintiff’s

ability to deal with work place pressures because it stands in
stark

contrast

to

Dr.

Starkey’s

examination

findings

(as

detailed above), including his opinion that Plaintiff’s ability
to work independently, with supervisors, with co-workers, and
with the public was “adequate.”

The statement regarding work

pressure also conflicts with the fact that Dr. Starkey assigned
Plaintiff a GAF score of 65, denoting only “mild” symptoms, as
well

as

with

Accordingly,

the
the

other
ALJ

substantial

had

good

evidence

cause

for

in

the

record.

disregarding

this

isolated and inconsistent statement contained in Dr. Starkey’s
written evaluation, and Plaintiff’s argument that the ALJ erred
in rejecting the opinion is without merit.
Next, with respect to the opinions of Dr. Keith Varden,
M.D.,

who

performed

a

consultative

physical

examination

of

Plaintiff at the request of the Agency on September 15, 2010,
his report shows that Plaintiff reported having recently had
seizures “within the last two or three weeks.” 10

(Id. at 280).

Dr. Varden’s examination findings revealed that Plaintiff was in
10

As noted in the discussion of Dr. Starkey’s evaluation, Dr.
Lightfoot’s notes from Plaintiff’s September 10, 2010 visit do
not reflect that she mentioned any recent seizure activity
during that visit. (Tr. 277).

23

“no

acute

deficits;

distress;”
her

she

reflexes

was

were

alert,

oriented,

symmetrical;

her

without
fine

focal

dexterity

motor skills were intact; and, in essentially every respect, her
physical

examination

was

completely

normal.

(Id.).

Notwithstanding these findings, Dr. Varden opined, based solely
on

Plaintiff’s

“[a]pparently

reports

of

[Plaintiff’s

recent

seizure

activity,

are

well

seizures]

not

that:

controlled

despite being on antiepileptics, having had seizures within the
last

two

or

three

weeks.”

(Id.

at

280).

“[Her

seizure

disorder] [w]ould put her at increased risk for work-related
activities currently.”

(Id.).

“Until these can be better

controlled, I would consider [her] disabled from normal workrelated

activities,

carrying

objects,

[such

traveling,

as]

sitting,

driving,

standing,

etc.,

which

walking,

would

most

likely impair her abilities or put her at risk for most workrelated activities.”
As

the

ALJ

(Id.).

found,

Dr.

Varden’s

opinions

are

not

only

inconsistent with the medical evidence in this case, they are
inconsistent

with

his

completely “normal.” 11

own

examination

(Id. at 280).

findings,

which

were

Indeed, after examining

Plaintiff on one occasion and finding essentially no physical
11

As stated, the ALJ gave the bulk of Dr. Varden’s findings
“substantial” weight; however, the ALJ discounted the opinions
that were inconsistent with the medical evidence and Dr.
Varden’s own examination findings. (Tr. 43-44, 280).

24

problems

whatsoever,

“apparently”

were

Dr.

not

Varden

well

opined

that

controlled,

her

despite

seizures
being

on

medication, and thus, until they could be better controlled, he
would consider her disabled.

Notably, as previously stated,

Plaintiff

saw

physician,

September

10,

her

treating

2010,

five

days

Dr.

before

Lightfoot,

her

on

consultative

examination by Dr. Varden, and yet Dr. Lightfoot’s treatment
notes do not reflect that Plaintiff mentioned any recent seizure
activity.

(Id. at 277, 280).

Given the inconsistencies between

Dr. Varden’s opinions and Plaintiff’s contemporaneous treatment
records, as well as the inconsistences with Dr. Varden’s own
findings, the ALJ had good cause to discredit this opinion.
In addition to the foregoing evidence, the record shows, as
the

ALJ

found,

that

Plaintiff

claims

that

she

began

having

seizures in 2001 and has had them unceasingly at a rate of three
or

four

a

Plaintiff’s

month

from

medical

2002

records

to

2011.

show

that

(Id.
her

at

56-57,

treating

196).

physician

from 2004 to 2008 was Dr. David Harding, M.D., who treated her
for

various

ailments,

including

back

strain,

vomiting,

chest

pain, ulcers, migraines, sinus infections, depression, stress,
and anxiety.

(Id. at 228-41).

however,

Harding’s

Dr.

Contrary to

treatment

records

Plaintiff’s claims,
are

devoid

of

any

mention of Plaintiff ever having a seizure during that four-year
period.

(Id. at 56-57, 228-41).

25

Similarly, with respect to

Plaintiff’s depression, Dr. Harding’s treatment notes in August
2004 reflect that Plaintiff’s depression was “much better” after
starting

on

Lexapro.

(Id.

at

239).

This

evidence

belies

Plaintiff’s claims that her seizure disorder and depression were
disabling in nature.
In addition, the record contains the report of consultative
psychological examiner, Dr. Linda Lindman, Ph.D., who performed
a psychological examination and evaluation of Plaintiff on July
3, 2008, at the request of the Agency.

(Id. at 301).

Plaintiff

reported to Dr. Lindman that she had a history of seizures and
that she had been prescribed Tegretol.

(Id. at 302).

However,

Plaintiff told Dr. Lindman that she “quit taking the medication
about

one

year

ago

and

no

longer

has

seizures.”

(Id.).

Similarly, with regard to Plaintiff’s depression, Dr. Lindman’s
examination

findings

were

essentially

“normal,”

with

exception that Plaintiff’s “fund of information” was poor.
at 303).
were

the
(Id.

Dr. Lindman found that Plaintiff’s mood and affect

“good”

and

“appropriate.”

(Id.).

Plaintiff

further

acknowledged that, while she was worried about her husband’s
health, she was “not overwhelmed by depression and anxiety;” she
was sleeping well; and her appetite was good. (Id. at 302-03).
This

evidence

further

undermines

Plaintiff’s

debilitating seizure and depression disorders.

26

claims

of

The record also shows that, from August 2009 to September
2011, Plaintiff sought regular treatment from Dr. Lightfoot at
Victory

Health

seizures. 12
seizure.

Center

for

a

variety

of

ailments,

including

On August 31, 2009, Plaintiff reported having had a

(Id. at 247).

However, when she

returned on October

9, 2009, her examination findings were normal, and it was noted
that she was “improved” and “doing well.”
more

than

a

year,

from

December

(Id. at 248).

2009

to

January

For
2011,

Plaintiff’s examination findings were essentially normal, and,
while her seizure diagnosis was noted, the notes do not reflect
that she reported any more seizure activity. (Id. at 249-54,
277-78, 282-85).

To the contrary, when Plaintiff returned for

medication refills on April 28, 2011, she reported that she was
having “no seizure activity on Trileptal.”
treatment

records

controlled.”

on

that

date

(Id. at 298).

reflect

(Id. at 297).
“seizure

Her

disorder

–

Months later, on September 27,

2011, when Plaintiff presented with complaints of pain in her
left wrist, Dr. Lightfoot noted that Plaintiff reported having
had a seizure “one mo[nth] ago.”

(Id. at 309).

In response,

Dr. Lightfoot increased Plaintiff’s seizure medication, referred
her

to

an

orthopedist

for

her

12

wrist,

and

instructed

her

to

Plaintiff also saw Dr. F.D. Salter, M.D., at Victory Health
Center. (Tr. 251-54, 283).

27

return in six weeks.

(Id. at 310).

This is Dr. Lightfoot’s

final treatment note in the record.
Dr. Lightfoot’s treatment records (and all of Plaintiff’s
treatment records at Victory Health Center) reflect that, from
August

2009

to

September

2011,

Plaintiff

appears

to

have

reported only two seizures, for which Dr. Lightfoot adopted a
conservative treatment plan with medication.

Even assuming that

Plaintiff underreported her seizures, she acknowledged in April
2011 that she had experienced “no seizure activity” whatsoever
while

taking

Trileptal.

(Id.

at

297).

Plaintiff

further

acknowledged at her hearing that at no time did Dr. Lightfoot,
or any other health care provider, ever recommend that she see a
specialist for her seizure disorder, despite the fact that Dr.
Lightfoot referred her to other specialists (a podiatrist and an
orthopedist) for other ailments.
310).

(Id. at 62-63, 243-54, 293,

This evidence further belies Plaintiff’s testimony, and

the testimony of her daughter,

13

regarding the frequency and

severity of her seizure disorder.
As the ALJ found, Plaintiff’s treatment records fail to
support her claim that her seizure disorder and/or depression

13

For the reasons discussed herein in relation to Issue Two, the
Court rejects Plaintiff’s argument that the ALJ erred in failing
to credit the testimony of her daughter, Laisha Knight,
regarding the frequency of Plaintiff’s seizures.
(Doc. 14 at
5).

28

prevent her from performing a range of light work.
contrary,

none

of

indicated

that

either

nature.

Rather,

conservative

Plaintiff’s

the

treatment

of

treating

these

conditions

treatment
of

physicians

these

records
medical

is

To the
has

ever

disabling

reflect

in

regular,

conditions

with

medication, and none of her physicians has ever recommended that
she see a specialist for either disorder.
Last,

as

the

ALJ

articulated,

Plaintiff’s

activities

of

daily living belie her claim that her seizure disorder and/or
her depression is disabling.

As the ALJ indicated, Plaintiff

can feed, bathe, groom, dress herself, prepare meals, manage
money, shop for groceries, use a phone, and drive.
256).

(Id. at

In her Disability Report, Plaintiff further stated that

she cooks for up to five hours at a time, that she cleans daily
for up to three hours, that she does laundry once a week, and
that she drives and grocery shops for up to two hours at a
time.14

(Tr. 189-90).

Having reviewed the record at length, the Court finds that
the ALJ properly weighed the opinion evidence in this case and
that the substantial medical evidence supports the ALJ’s finding

14

Plaintiff’s testimony at her hearing was very different. She
testified that she lives in a house with her seventy-six-yearold mother and that her daughter and her sister come over and do
all of the housework, cooking, and grocery shopping. (Tr. 59).

29

that Plaintiff can perform a range of light work.

Therefore,

Plaintiff’s claim is without merit.
B. Whether the ALJ erred in evaluating the
testimony
of
Plaintiff’s
daughter
regarding the frequency of Plaintiff’s
seizures?
Plaintiff argues that the ALJ erred in failing to properly
evaluate

the

credibility

administrative

hearing

of

on

her

daughter’s

November

17,

2011,

frequency of Plaintiff’s seizure activity.
that

Plaintiff’s

daughter,

Laisha

testimony

at

the

regarding

the

The record shows

Knight,

testified

at

the

hearing that Plaintiff suffers from seizures “a lot,” which she
described as “sometimes two or three times a week.”
69).

(Tr. 68-

Ms. Knight further testified that she personally witnessed

Plaintiff having seizures at that rate within the two weeks
preceding the hearing.
When
symptoms,

evaluating
the

statements,
persons,

and

ALJ

(Doc. 14 at 5; Tr. 68-69).
a

claim

considers

statements
evidence

by
of

based
medical

the
how

on

findings,

treating
the

disabling

pain

a

physician
(or

other

subjective
claimant’s
or

other

subjective

symptoms) affects the claimant’s daily activities and ability to
work.
attempts

20 C.F.R. § 416.929(a).
to

establish

disability

In a case where a claimant
through

his

or

her

own

testimony concerning pain or other subjective symptoms, a threepart standard applies.

That standard requires: “(1) evidence of

30

an underlying medical condition and either (2) objective medical
evidence that confirms the severity of the alleged pain

[or

other subjective symptoms] arising from that condition or (3)
that the objectively determined medical condition is of such a
severity that it can be reasonably expected to give rise to the
alleged

pain

[or

other

subjective

symptoms].”

Hubbard

v.

Commissioner of Soc. Sec., 348 Fed. Appx. 551, 554 (11th Cir.
2009) (unpublished) (quoting Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991)).

The Social Security regulations further

provide:
[S]tatements
about
your
pain
or
other
symptoms will not alone establish that you
are disabled; there must be medical signs
and laboratory findings which show that you
have a medical impairment(s) which could
reasonably be expected to produce the pain
or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity
and persistence of your pain or other
symptoms which may reasonably be accepted as
consistent
with
the
medical
signs
and
laboratory
findings),
would
lead
to
a
conclusion that you are disabled.
20 C.F.R. 404.1529(a) (2013).
“A

claimant’s

subjective

testimony

supported

by

medical

evidence that satisfies the pain standard is itself sufficient
to support a finding of disability.”
1553, 1561 (11th Cir. 1995).

Foote v. Chater, 67 F.3d

Stated differently, “if a claimant

testifies to disabling pain [or other subjective symptoms] and

31

satisfies

the

disabled

three

unless

part

that

pain

standard,

testimony

is

he

must

properly

be

found

discredited.”

Reliford v. Barnhart, 444 F. Supp. 2d 1182, 1186 (N.D. Ala.
2006).

Therefore, once the determination has been made that a

claimant has satisfied the three-part standard, the ALJ must
then turn to the question of the credibility of the claimant’s
subjective complaints.
(the

three-part

determination

standard

made

credibility.”).

See id., 444 F. Supp. 2d at 1189 n.1
“is

prior

designed

to

considering

be

a

the

threshold
plaintiff’s

If a claimant does not meet the standard, no

credibility determination is required.
In

to

assessing

a

claimant’s

Id.

credibility,

the

ALJ

must

consider all of the claimant’s statements about his symptoms and
determine the extent to which the symptoms can reasonably be
accepted as consistent with the objective medical evidence.

See

20

are

C.F.R.

§

404.1528.

Such

credibility

within the province of the ALJ.
1208, 1212 (11th Cir. 2005).
credit

a

claimant’s

determinations

Moore v. Barnhart, 405 F.3d

However, if an ALJ decides not to

testimony

about

his

or

her

subjective

symptoms, “the ALJ must articulate explicit and adequate reasons
for doing so or the record must be obvious as to the credibility
finding.”

Strickland v. Commissioner of Soc. Sec., 516 Fed.

Appx. 829, 832 (11th Cir. 2013) (unpublished) (citing Foote, 67
F.3d at 1562); see also Tieniber v. Heckler, 720 F.2d 1251, 1255

32

(11th Cir. 1983) (although no explicit finding as to credibility
is required, the implication must be obvious to the reviewing
court).

Failure

to

articulate

the

reasons

for

discrediting

testimony related to pain or other subjective symptoms requires,
as a matter of law, that the testimony be accepted as true.
Holt, 921 F.2d at 1223.
The Eleventh Circuit has held that the determination of
whether

objective

medical

impairments

could

reasonably

be

expected to produce the pain or other subjective symptoms is a
factual question to be made by the Secretary and, therefore,
“subject only to limited review in the courts to ensure that the
finding is supported by substantial evidence.”

Hand v. Heckler,

761 F.2d 1545, 1549 (11th Cir. 1985), vacated on other grounds
and reinstated sub nom., Hand v. Bowen, 793 F.2d 275 (11th Cir.
1986).

A reviewing court will not disturb a clearly articulated

credibility finding with substantial supporting evidence in the
record.

See Nye v. Commissioner of Social Sec., 524 Fed. Appx.

538, 543 (11th Cir. 2013) (unpublished).
In the present case, Plaintiff argues that the ALJ erred by
failing

to

required
testimony

comply

him

to

with

Social

consider

and

regarding

the

Security
evaluate

frequency

33

of

Ruling

96-7p,

Plaintiff’s

which

daughter’s

Plaintiff’s

seizure

activity. 15
a

specific

While Plaintiff is correct that the ALJ did not made
credibility

determination

with

respect

to

her

daughter’s testimony, an ALJ is not required to make a specific
credibility finding as to a lay witness’s testimony if the ALJ’s
15

SSR 96-7p provides, in pertinent part:
4. In determining the credibility of the
individual’s
statements,
the
adjudicator
must
consider
the
entire
case
record,
including the objective medical evidence,
the
individual’s
own
statements
about
symptoms, statements and other information
provided by treating or examining physicians
or psychologists and other persons about the
symptoms and how they affect the individual,
and any other relevant evidence in the case
record.
An individual’s statements about
the intensity and persistence of pain or
other symptoms or about the effect the
symptoms have on his or her ability to work
may not be disregarded solely because they
are not substantiated by objective medical
evidence.
5. It is not sufficient for the adjudicator
to make a single, conclusory statement that
“the individual’s allegations have been
considered” or that “the allegations are (or
are not) credible.”
It is also not enough
for the adjudicator simply to recite the
factors
that
are
described
in
the
regulations for evaluating symptoms. The
determination
or
decision
must
contain
specific
reasons
for
the
finding
on
credibility, supported by the evidence in
the case record, and must be sufficiently
specific to make clear to the individual and
to any subsequent reviewers the weight the
adjudicator
gave
to
the
individual’s
statements and the reasons for that weight.

SSR 96-7p, 1996 SSR LEXIS 4, *3-4, 1996 WL 374186, *1-2.

34

credibility finding as to the claimant sufficiently implies a
rejection of that testimony as well.
194

Fed.

Appx.

(unpublished)

654,

(“[I]f

666
the

(11th
ALJ

See Osborn v. Barnhart,

Cir.

fails

2006)

to

(per

curiam)

an

explicit

make

credibility determination as to a family member’s testimony or
statements, . . . we will not find error if the credibility
determination was implicit in the rejection of the claimant’s
testimony.”) (citations omitted).
In

this

case,

the

ALJ

found

that

Plaintiff’s

testimony

regarding the frequency of her seizure activity was “not fully
credible” based on the inconsistency between her testimony and
the

other

record

evidence.

16

(Id.

at

41,

43,

196).

Specifically, the ALJ pointed to the lack of medical evidence to
support the alleged severity of Plaintiff’s seizure disorder and
the fact that the treatment for Plaintiff’s seizure disorder had
been limited to medication only.

(Id. at 41-43).

the

between

ALJ

noted

the

inconsistency

In addition,

Plaintiff’s

reported

seizure activity and the evidence of her activities of daily
living
without

(i.e.,

she

assistance,

can

feed,

manage

bathe,
money,

16

groom
prepare

and

dress

meals,

herself

shop

for

At her hearing, Plaintiff told the ALJ that she has had
seizures at a rate of three or four a month since 2002 and that
there have been no periods of time when she has had fewer
seizures. (Tr. 57). In her disability/seizure report produced
to the Agency on July 27, 2010, Plaintiff stated that she had
experienced “twelve or more” seizures in 2010. (Id. at 196).

35

groceries, use a phone, drive an automobile, attend church, and
visit with others).
an

ALJ

.

claimant’s

.

.

“When evaluating a claimant’s credibility,

may

alleged

consider

any

limitations

inconsistencies

and

his

daily

between

a

activities.”

Lambeth v. Astrue, 2011 U.S. Dist. LEXIS 75150, *27, 2011 WL
2784560, *9 (S.D. Ala. July 12, 2011) (citing Macia v. Bowen,
829

F.2d

Plaintiff’s

1009,

1012

varied

(11th
daily

Cir.

1987)).

activities

in

As

in

this

Lambeth,
case

are

inconsistent with her claim that her medical impairment (in this
case a seizure disorder) renders her completely unable to work.
Thus,

the

ALJ’s

reasons

for

finding

Plaintiff’s

allegations

regarding the severity of her seizure disorder to be less than
fully credible are supported by the record.
Turning now to Ms. Knight’s testimony, the ALJ’s finding
that

Plaintiff’s

allegations

regarding

the

severity

of

her

seizure disorder were less than fully credible, in turn, implies
that the ALJ found that Ms. Knight’s cumulative evidence on this
subject

is

likewise

less

than

fully

credible.

Indeed,

Ms.

Knight’s testimony that Plaintiff suffers seizures approximately
two or three times a week (id. at 69) is even inconsistent with
Plaintiff’s

own

testimony

that

she

approximately three or four times a month.

suffers

seizures

(Id. at 57).

In sum, both Plaintiff’s testimony and the testimony of her
daughter on the issue of the frequency of Plaintiff’s seizures

36

lack any support from the objective medical evidence in the
record and, to the contrary, are inconsistent with the medical
evidence in this case and with each other.
was properly discounted by the ALJ.

Thus, this testimony

As the court observed in

Osborn, “[w]hile the findings in this case could be improved
upon,”

the

testimony

ALJ

properly

regarding

the

rejected
disabling

Plaintiff’s
nature

of

subjective
her

seizure

disorder, and while the ALJ could have mentioned Ms. Knight’s
testimony,

the

credibility

Court

concludes

determination

as

that
to

the

ALJ’s

Plaintiff’s

specific
testimony

sufficiently implies a rejection of her daughter’s testimony as
well.

Cf. Osborn, 194 Fed. Appx. at 666.

Thus, Plaintiff’s

claim is without merit.
V.
For

Conclusion
the

reasons

set

forth

herein,

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
supplemental security income be AFFIRMED.
DONE this 31st day of March, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

37