Wiber v. Colvin
MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 9/25/2014. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CYNTHIA A. WIBER,
CAROLYN W. COLVIN,
Social Security Commissioner,
CIVIL ACTION 14-0106-M
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 12).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 18).
argument was waived in this action (Doc. 17).
consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.”
Brady v. Heckler, 724 F.2d 914, 918
(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
At the time of the most recent administrative hearing,
Wiber was fifty-five years old, had acquired some college
education (Tr. 38-29), and had previous work experience as an
automobile rental clerk, hospital admitting clerk, title clerk,
typist, and hotel clerk (Tr. 52-53).
In claiming benefits,
Plaintiff alleges disability due to major depression and bipolar
disorder (Doc. 12 Fact Sheet).
The Plaintiff filed applications for disability insurance
and SSI on December 23, 2009 (Tr. 106-07).1
Benefits were denied
following a hearing by an Administrative Law Judge (ALJ) who
determined that Wiber was capable of performing some of her past
relevant work (Tr. 111-23).
The Appeals Council, however,
1Wiber filed on January 4, 2008 (Tr. 104-05) and again on
December 23, 2009 (Tr. 106-07). As the more recent applications claim
disability as of January 30, 2009, they would appear to be the proper
applications under consideration in this action. This finding
comports with the ALJ’s latest decision (Tr. 18).
remanded the action back to the ALJ for consideration (Tr. 13031).
Following a new evidentiary hearing, the ALJ held that
although she could not perform any of her past relevant work,
Wiber was capable of performing specified jobs (Tr. 18-28).
Plaintiff requested review of the hearing decision (Tr. 14) by
the Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
Specifically, Wiber alleges
the single claim that the ALJ did not properly explain her
rejection of Plaintiff’s testimony (Doc. 12).
responded to—and denies—this claim (Doc. 13).
In bringing this action, Wiber asserts that the ALJ did not
properly explain the rejection of her testimony.
In arguing her
claim, Plaintiff references a single page in the 489-page
transcript as support for her assertions of “blurred vision and
clenched teeth” (Doc. 12, p. 3; see also Tr. 485).
There is a
further assertion of “the up-and-down nature of Plaintiff’s
mental impairments, showing that Plaintiff’s memory, insight,
and judgment fluctuated” (Doc. 12, p. 3); no transcript citation
The medical record dated February 28, 2012, from the one
day that Plaintiff cites as evidence, shows that she appeared
for a scheduled visit and complained of heart burn, blurred
vision, clinching her teeth a lot, and feeling jittery (Tr.
Wiber further reported that her mood was stable and
denied mood swings, depression, suicidal and homicidal ideation,
anxiety, or paranoia; memory was unimpaired (id.).
The RN noted
that Plaintiff was engaging in normal, cooperative behavior and
was in a normal mood with an affect appropriate to the situation
Wiber’s thoughts were logical and coherent, with no
concentration impairment noted; she was not anxious (Tr. 486).
No change in medications was made (Tr. 486).
This is the sum
total of the evidence to which Plaintiff points to support her
The Court notes that the ALJ is required to "state
specifically the weight accorded to each item of evidence and
why he reached that decision."
731, 735 (11th Cir. 1981).
Cowart v. Schweiker, 662 F.2d
Furthermore, social security
regulations provide the following instruction:
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
SSR 96-7p (Policy Interpretation Ruling Titles II and XVI:
Evaluation of Symptoms in Disability Claims:
Credibility of an Individual’s Statements).
In her decision, the ALJ made the following finding:
After careful consideration of the
evidence, the undersigned finds that the
claimant’s medically determinable
impairments could reasonably be expected to
cause the alleged symptoms; however, the
claimant’s statements concerning the
intensity, persistence and limiting effects
of these symptoms are not credible to the
extent they are inconsistent with the above
residual functional capacity assessment.
Wiber acknowledges this conclusion, but asserts that
it falls short of what is required (Doc. 12, p. 3).
the Court will point out other findings that support the ALJ’s
conclusion that Plaintiff was not credible.
First, the ALJ discounted several claims of severe
The claimant has also alleged knee
problems, problems with her eyesight because
of her medication, and headaches. . . . At
the first hearing, she testified that she
has not seen physician for knee problems and
that she takes no medication for this
alleged condition. The claimant’s medical
record is limited to complaints of shortness
of breath in February 2010 and dental pain
on June 30, 2010. (Exhibits 6F, 7F, and
8F). Spirometry and chest x-rays were
normal. (Exhibit 6F). Her psychiatric
treatment record contains isolated
complaints of blurry vision. She testified
that she wears corrective contacts and has
not spoken to her doctor regarding her eye
problems recently. There is no evidence
this alleged visual symptom resulted in
functional limitations. Therefore, the
undersigned finds the claimant’s alleged
knee problems, problems with her eyesight,
and headaches are not medically determinable
After finding these impairments not severe, the ALJ
found that Wiber was only mildly restricted in her activities of
daily living, moderately restricted in social functioning, and
had moderate difficulties with regard to her concentration,
persistence, and pace; Plaintiff had experienced no episodes of
decompensation (Tr. 21-22).
The ALJ set out her reasoning for
these findings, pointing to the medical records and Wiber’s own
After concluding that Plaintiff was not a credible witness,
the ALJ made the following findings, all supported by the
“The claimant’s complaints and presentation in
her treatment records do not support the severity of allegations
she has alleged in support of her application for disability”
(Tr. 23); “[d]espite the complaints of allegedly disabling
symptoms, there have been significant periods since the alleged
onset date during which the claimant has not been compliant with
treatment” (Tr. 24); “[t]he medical records reveal that, when
the claimant takes her medications as prescribed they have been
relatively effective in controlling the claimant’s symptoms”
(Tr. 24); “[t]he claimant has not consistently described her
medication side effects” (Tr. 25); and “[t]he record reveals
that the claimant’s allegedly disabling impairments were present
at approximately the same level of severity prior to the alleged
The fact that the impairments did not prevent the
claimant from working at that time strongly suggests that they
would not currently prevent work” (Tr. 26).
The Court finds that the ALJ’s conclusions are supported by
Wiber’s claim that the ALJ did not
properly assess her testimony is wholly without merit.
Upon consideration of the entire record, the Court finds
"such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."
Perales, 402 U.S. at 401.
Therefore, it is ORDERED that the Secretary's decision be
AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir.
1980), and that this action be DISMISSED.
Judgment will be
entered by separate Order.
DONE this 25th day of September, 2014.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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