Pentakota v. Colvin
MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 3/6/2015. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
LUCRETIA PATTERSON PENTAKOTA,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying her
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Docs. 20 & 22 (“In accordance with the
provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States Magistrate Judge conduct any and all proceedings in this case, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”).)
Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s
brief, and the arguments of counsel at the February 20, 2015 hearing before the Court, it
is determined that the Commissioner’s decision denying benefits should be affirmed.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 20 & 22 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))
Plaintiff alleges disability due to bipolar disorder, post traumatic stress disorder
(“PTSD”), carpal tunnel syndrome, asthma, and chronic obstructive pulmonary disease
(“COPD”). The Administrative Law Judge (ALJ) made the following relevant findings:
The claimant meets the insured status requirements of the Social
Security Act through September 30, 2007.
The claimant has not engaged in substantial gainful activity since
June 20, 2011, the amended alleged onset date (20 CFR 404.1571 et seq.,
and 416.971 et seq.).
The claimant has the following severe impairments: Carpal
tunnel syndrome, left; Bipolar Disorder, Not Otherwise Specified
(NOS); Anxiety; Post Traumatic Stress Disorder (PTSD); Substance
abuse; Asthma; Chronic Obstructive Pulmonary Disease (COPD); and
Obesity (20 CFR 404.1520(c) and 416.920(c)).
In evaluating this case, the claimant’s date last [i]nsured (DLI) is relevant.
The DLI is the last day of the last calendar quarter in which the
requirements for entitlement to a period of disability and disability
insurance benefits are met. In the claimant’s case, this date is September
30, 2007. If onset of disability cannot be established on or before the DLI,
the claim for a period of disability and disability insurance benefits under
Title II must be denied. If the claim is for Title II benefits only, then the
period of adjudication ends with the DLI. With regard to Title II benefits,
several exhibits contain evidence after the claimant’s date last insured.
Nonetheless, the Administrative Law Judge has carefully read and
considered all evidence regardless of whether it is specifically cited in the
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
The severity of the claimant’s mental impairments, considered singly and
in combination, do not meet or medically equal the criteria of listings 12.04
and 12.09. In making this finding, the undersigned has considered
whether the “paragraph B” criteria are satisfied. To satisfy the “paragraph
B” criteria, the mental impairments must result in 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. A marked limitation means
more than moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three episodes within
1 year, or an average of once every 4 months, each lasting for at least 2
In activities of daily living, the claimant has mild restriction. This finding
is supported by the Psychiatric Review Technique assessment completed
on September 8, 2011, by Harold Veits, M.D., a medical consultant with
Disability Determination Services. The claimant is able to care for her own
physical needs including bathing herself, dressing herself, taking
medicine and cooking. She has no driving restrictions, is able and does
drive. She was able to raise two children. According to testimony, on a
typical day she takes care of her plants, reads, and cleans house. She
cooks, but sometimes burns food because she forgets about it. She goes
grocery shopping once a month.
In social functioning, the claimant has moderate difficulties. The
evaluation in Exhibit 14F supports this finding. The claimant testified that
she goes to the grocery store when most people are working. In her adult
function report, she indicated that socially, she sits and talks and she does
not go places.
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. According to testimony, the claimant has problems
concentrating. Despite the claimant’s allegations of mental limitations, the
claimant’s cumulative high school record indicates she made A’s, B’s, C’s,
and some D’s. Despite the claimant’s mental limitations, she testified she
likes to read science fiction and caring for her plants.
As for episodes of decompensation, the claimant has experienced one to
two episodes of decompensation, each of extended duration, according to
the evaluation in Exhibit 14F.
Because the claimant’s mental impairments do not cause at least two
“marked” limitations or one “marked” limitations and “repeated”
episodes of decompensation, each of extended duration, the “paragraph
B” criteria are not satisfied.
The undersigned has also considered whether the “paragraph C” criteria
are satisfied. In this case, the evidence fails to establish the presence of the
“paragraph C” criteria according to the evaluation in Exhibit 14F.
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at step 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments. Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she
can lift, carry, push and pull 20 pounds occasionally and 10 pounds
frequently, sit, stand and walk for 6 hours in a work day, frequently use
foot controls bilaterally, only frequently handle, feel and finger with
her non-dominant hand, could frequently climb ramps and stairs but
never ladders and scaffolds, frequently balance and stoop but only
occasionally kneel, crouch and crawl, could never be exposed to
unprotected heights or dangerous machinery, dangerous tools or
hazardous processes and could occasionally operate a motor vehicle, be
exposed to humidity and wetness and atmospheric conditions; she
could only remember short simple oral or written instructions and
would be unable to deal with detailed or multi-step instructions and
she could perform simple routine repetitive tasks but would be unable
to perform detailed or complex tasks, she could have no more than
occasional contact with the general public, but could have frequent
contact with co-workers and supervisors and would be able to accept
constructive, non-confrontational criticism, work in small group
settings and be able to accept changes in the work place setting if
introduced gradually and would be unable to perform assembly line
work with production rate pace.
The claimant was 41 years of age on her alleged onset date. According to
testimony, she completed nine months of college. The claimant’s 2009
consultative examination provided the following information about her.
She is able to care for her own physical needs including bathing herself,
dressing herself, taking medicine, driving, and cooking. She is able to
drive. She stated  that she was able to raise her two children. However,
since the onset of more significant psychiatric problems[,] her 15-year-old
child now lives with her aunt. With regard to educational functioning, she
reportedly performed well in school and graduated. She received an
Associate’s degree in the medical support staff field, but she has never
worked in that field. She has worked primarily for herself or her mother
as a seamstress. She last worked as a custom seamstress 1½ year[s] prior
to February 2009. With regard to substance abuse history, she smokes one
pack of cigarettes per day. She denied current problems with alcohol
although she has a reported and significant history of illicit drug use. The
last time she used illicit drugs was four to five years prior to 2009. She has
a history of methamphetamine use.
According to information provided to the Social Security Administration
on July 22, 2011, the claimant has trouble remembering key dates
(hospitalizations, doctor’s visits, etc.). It was also noted that the claimant
seemed very anxious and distracted at times during the interview. At
times, the interviewer noted that the claimant mumbled and made
comments to herself and laughed. Several times, the interviewer asked the
claimant to repeat the comments, and she responded “never mind.” The
claimant told the interviewer that she sees things that are not there;
however, she denied hearing voices. The claimant alleged worsening of
her conditions going back to May 2007, and that she has had additional
medical problems and hospitalizations during and after May 2007.
On August 3, 2011, the claimant provided the following information in an
adult function report: . . . She has no problems taking care of her personal
needs. She cooks complete meals and does laundry. To travel, she walks
and drives a car. She is able to count change, but is unable to pay bills,
handle a savings account, and checkbook/money orders. Her hobbies
included watching television and reading. Socially, she sits and talks. She
does not go places. She has problems . . . completing tasks, concentrating,
understanding, following instructions, using hands, and problems with
memory. . . . She is “all right” with understanding written instructions.
Her comprehension on verbal instructions depends on how long they are
and she forgets them after 30 minutes.
On September 9, 2011, the claimant was denied disability benefits.
Subsequently, on September 24, 2011, the claimant completed a Disability
Appeal Report and indicated that since February 2011 her mental illness
had progressed and her medication[s] were not working as well as they
did in the past.
The claimant alleges disability because of various mental conditions including
problems with anxiety, insomnia, manic depression, bipolar disorder, having
hallucinations, and being hospitalized for mental problems. According to
testimony, she has problems concentrating. She was placed on
medications that make her sleepy. She testified that her medications make
her feel like a zombie and make her sleep. She testified that she sees a
counselor once a month and a psychiatrist every three months. She stated
that she was hospitalized in North Harbor, and she was not functioning
well. She testified that she feels good when her psychiatric medications are right.
With regard to the claimant’s mental health treatment, [i]n December
2008, the claimant was admitted to the Emergency Department of W.O.
Moss Regional Medical Center. She had taken a handful of pills and
wanted to kill herself. She had been drinking. The claimant had a history
of bipolar disorder and was admitted because of suicidal ideations. She
had been drinking 750 ml (a fifth) of alcohol daily for the past 30 days. She
denied heavy drinking in the past and stated that she had been drinking
because of being raped by three men three months prior. She was trying to
forget the rape. She had nightmares, flashbacks, mood swings, decreased
need for sleep, flight of ideas, and distractibility. She was recommended
for continued hospitalization for stabilization or observation,
psychopharmacology, and therapy. She was diagnosed with Alcohol
Abuse, Post Traumatic Stress Disorder, and Bipolar Disorder, most recent
episode mixed. The claimant reported that her medications from May
2008 were stolen, but she got them back in July 2008, and was running out
of them again. Upon admission, the claimant had a global assessment
functioning (GAF) score of 50. According to the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, (DSM-IV), a score of 41 to 50
represents serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).
Notably, the Commissioner has specifically declined to endorse the GAF
scale for use in the disability programs, and has stated that the GAF scale
“does not have a direct correlation to the severity requirements in our
mental disorders listings.” While the GAF scores may be indicative of the
claimant’s alleged level of functioning on the date of treatment, the scores
are assigned little weight when considering the cumulative evidence of
record regarding the claimant’s overall mental health condition.
Furthermore, the undersigned has considered the cumulative evidence of
record, including the claimant’s credibility, in determining the residual
functional capacity assessment. The appropriate limitations derived from
claimant’s impairments are reflected in the claimant’s residual functional
capacity and in the hypothetical question presented to the vocational
expert at the administrative hearing.
It is important to note that on December 22, 2008, upon discharge from W.O.
Moss Regional Medical Center, the claimant’s GAF score improved to 70.
According to the DSM-IV, a score of 70 represents some mild symptoms
(e.g., depressed mood and mild insomnia) OR some difficulty in social[,]
occupational or school functioning (e.g., occasional truancy, or theft
within the household), but generally functioning pretty well, has some
meaningful interpersonal relationships. Thus, with proper mental health
treatment and medication therapy, the claimant’s mental health improves.
During her medical consultative examination on March 7, 2009, with
Amanda Steen, M.D., the claimant was alert, oriented, with a pleasant
mood, and appropriate range of affect. The medical examiner diagnosed
bipolar disorder and asthma with chronic daily symptoms with mild
hypoxia at rest. Notably, the examiner was not an acceptable medical source to
diagnose mental impairments. However, an examiner may offer his/her
observations regarding the claimant’s demeanor and overall presentation.
In 2009 and 2010, the claimant received mental health treatment at West
Alabama Mental Health Center. During a mental health visit in July 2010,
the claimant’s provider noted that she was pleasant and cooperative, and
planned to remain compliant with treatment and medication. The
therapist further noted that the claimant was clean and sober. In June
2011, the claimant had diagnoses of Bipolar Disorder, NOS, alcohol abuse,
and a history of Methamphetamine abuse. She had a GAF score of 50. As
the claimant’s admission at North Harbor shows, when she drinks she
cannot control herself. She claimed that she did not drink alcohol while on
medication. However, this statement is doubtful.
The medical record establishes that on June 18, 2011, the claimant was
admitted [to the] DCH Health System. She had homicidal complaints,
alcohol consumption, and was again off her medications. She had a
history of anxiety, depression, psychosis, suicide attempt, suicide[al]
ideation, substance abuse, alcohol intoxication, schizophrenia, and
bipolar/mania. She was crying and laughing. She denied suicidal
thoughts. She was treated with medication and discharged. . . . During the
claimant’s inpatient visit in June 2011, she had been non-compliant with
her medications for two months. She had been drinking and her alcohol
level was 402 (c). The claimant reported that she quit her job as a Cashier
because she could no longer get free medications. She reported to the
Social Security Administration that her last day at work was June 17, 2011,
the date prior to her admission to the hospital.
The claimant’s mental health improved in August 2011. During a mental health
session in August 2011, at West Alabama Mental Health Center, the claimant
reported she was doing well, and she reported a reduction in depression. She
stated that she was doing extra things around her home. She denied suicidal and
homicidal thoughts. She reported good socialization skills. She reported a fair
appetite and sleeping patterns. The therapist indicated the claimant was doing
moderately well, planned to remain compliant in all areas and to follow-up in one
month with the therapist.
In March 2012, the claimant was hospitalized four days for mental health
treatment at DCH Health System. She was seen in the Emergency Room.
She was brought in by her family for increasingly erratic behavior, anger,
and aggressive outbursts, and she requested adjustment of medications.
After proper evaluation, she transferred to North Harbor. After treatment,
the claimant show[ed] gradual improvement at the time of discharge. She
was eating fairly well, and her sleep patterns and disease process resolved
to a significant degree. She was placed on Trazadone. On March 5, 2012,
the psychiatrist noted that she seemed to be doing better. In March 2012, a
computer aided tomography (CT scan) of the claimant’s head showed no
In March 2012, claimant’s primary doctor indicated she was wellappearing, well-nourished, and in no distress. She was oriented X 3, with
a normal mood except she was sitting in a wheelchair, and shaking all
over. More than likely, the claimant was having an adverse reaction to
drugs. She was treated for four days and released. She was able to sleep.
No other physical issues were noted throughout the hospital. She denied
In March 2012, the claimant presented for a follow-up visit related to
ambulation because she reported having had three falls. She also reported
memory loss over the past two to three months. The claimant indicated
that she was on new medications from West Alabama Mental Health
Center. The claimant’s doctor indicated she was well-appearing, wellnourished and in no distress. She was oriented X 3, with a normal mood
except she was sitting in a wheelchair and shaking all over. She had no
prominent rash or lesions. Her lungs were clear to auscultation and
percussion. . . . Moreover, during a visit in May 2012 at West Alabama, the
claimant reported reading a good book and helping her mother most days
during the past week. She reported good physical health and no current
problems. In May of 2012, the claimant agreed that she needed
medication. The therapist indicated she had a good friend and great
family support. The claimant was positive that she would stay compliant
with her treatment.
In July 2012, David Hodo, M.D., a psychiatrist, evaluated the claimant. Dr.
Hodo opined that the claimant’s activities were limited due to her illness.
The doctor indicated the claimant does help and looks after her mother. . .
. The claimant’s mood was depressed but was seen to be at times
exaggerated. Her affect was appropriate and her speech was normal. Her
thoughts at times were logical. She was not suicidal or homicidal. She was
not then currently having any hallucinations. Her sensorium was intact
and her cognitive function was appropriate to age. Her abstractions were
adequate. She had trouble concentrating. The doctor diagnosed Manic
Depressive Illness, bipolar type. Dr. Hodo also completed a Mental
Medical Source Statement in the claimant. He opined that the claimant has
marked or extreme limitations in all functional areas. Notably, Dr. Hodo
himself expressed concerns that the claimant’s mood was exaggerated. The overall
medical record does not support this evaluation. Moreover, the claimant’s
previous behavior in March and May 2012 is inconsistent with Dr. Hodo’s
On February 26, 2009, the claimant was referred, at the request of the
Social Security Administration, to a mental consultative examination
performed by G. Jon Haag, Psy.D., a clinical psychologist. The examiner
diagnosed Post Traumatic Stress Disorder and Alcohol Dependence, Early
Full Remission. The examiner noted that the claimant did not appear
acutely manic but had a recent history of suicide attempt. The examiner
indicated that the claimant’s mood appeared stable. The examiner
indicated that evidence from the claimant’s mental status examination and
clinical interview revealed that her memory was not impaired. Her
concentration was noted to be unimpaired. The examiner opined that the
claimant appeared to be able to understand and follow simple
instructions. The examiner further opined that the claimant’s prognosis
for improvement was estimated to be guarded.
On September 8, 2011, DDS Medical Consultant Dr. Veits completed a
Mental Residual Functional Capacity Assessment on the claimant. The
consultant opined that the claimant had the following limitations: The
claimant has the ability to understand and carry out many short simple
instructions. She can attend and concentrate for two-hour periods. The
claimant would benefit from work which does not require frequent
interaction with the general public. Work-setting changes should be
minimal, gradual, and full explained. He also opined that she might need
help setting goals.
In evaluating the totality of evidence in this case, the claimant’s subjective
allegations of record regarding her symptoms and limitations exceed the minimal
objective findings of abnormality documented in the medical evidence. The
claimant’s representative pointed out that in North Harbor in March 2012,
the claimant had a GAF of 30. However, it should be noted that in March
2012, the claimant presented for a follow-up visit related to ambulation
and that she had had three falls. She also reported memory loss over the
past two to three months. The claimant indicated that she was on new
medications from West Alabama. The claimant’s doctor indicated she was
well-appearing, well-nourished and in no distress. She was oriented X 3,
with a normal mood except she was sitting in a wheelchair and shaking all
over. She had no prominent rash or lesions. Her lungs were clear to
auscultation and percussion. . . . Moreover, during a visit in May 2012 at
West Alabama, the claimant reported reading a good book and helping
her mother most days during the past week. She reported good physical
health and no current problems. In May of 2012, the claimant agreed that
she needed medication. The therapist indicated she had a good friend and
great family support. The claimant was positive that she would stay
compliant with her treatment.
Treating Psychiatrist Dr. Hodo’s opinion is not supported by the medical
evidence. Notably, Dr. Hodo himself expressed concerns that the claimant’s
mood was exaggerated. The overall medical record does not support this
evaluation. Moreover, the claimant’s previous behavior in March and May 2012
is inconsistent with Dr. Hodo’s evaluation. Moreover, the medical record
establishes [that] with proper mental health treatment and medication therapy,
the claimant’s mental health improves.
The claimant’s activities of daily living during the period in which she
alleges total disability are not suggestive of disabling incapacity. The
claimant is able to care for her own physical needs including bathing
herself, dressing herself, taking medicine, driving, and cooking. She has
no driving restrictions. She is able to drive. She was able to raise two
children. According to testimony, on a typical day she takes care of her
plants, reads, and cleans house. She cooks, but sometime[s] burn[s] food
because she forgets about it. She goes grocery shopping once a month.
Socially, she sits and talks, [but] she does not go places. Moreover, as
recently as July 2012, the claimant reported that she helps look after her
mother. Therefore, the claimant is a caregiver. The role of caregiver is
tremendous, and can be overwhelming. The responsibilities and role of a
caregiver includes shopping, cooking, cleaning, and running errands. In
many ways, the caregiver is the extra hand in providing the daily needs of
an individual, such as transportation, bathing, toileting, dressing and
feeding. Caregivers also supervise and dispense medication. If required,
they arrange for healthcare professional[s] to evaluate the informed
person. On a more abstract level, caregivers listen, talk, and provid[e]
emotional support whenever possible. Therefore, the claimant’s role as
caregiver demonstrates she performed functions inconsistent with
Finally, no treating or examining medical source has provided sufficient
evidence to support a recommendation that restricts the claimant’s
activities or reported limitations regarding the capacity for work-related
tasks in a manner inconsistent with the assessment of residual functional
capacity in this decision.
As for the opinion evidence, the undersigned Administrative Law Judge
gives partial weight to the consultative examiners at Exhibits 4F and 5F, as
their opinions are consistent with the claimant’s activities of daily living
and treatment record. If these opinions were more recent, they would be
given more weight as they are consistent with current medical records.
The undersigned Administrative Law Judge gives some weight to the
DDS medical consultants contain[ed] [here]in, as they are generally
consistent with the medical record. However, the undersigned
Administrative Law Judge gives substantial weight to the opinion at
Exhibit 11F, as it points out that with regard to Title II benefits, most of the
claimant’s treatment occurred after her date last insured.
The undersigned Administrative Law Judge gives little weight to the
opinion of Treating Psychiatrist Dr. Hodo. He opined that the claimant
has marked or extreme limitations in all functional areas. Notably, Dr.
Hodo himself expressed concerns that the claimant’s mood was
exaggerated. The overall medical record does not support this evaluation
with relevant evidence. Moreover, the claimant’s previous behavior in
March and May 2012 is inconsistent with Dr. Hodo’s evaluation.
Moreover, the claimant learned the drapery business and worked with her
mother in this business for 13 years. In addition, the claimant testified she
was a Cashier at a Gas Station/Convenience Store. She was responsible
for the gas pump machine, credit card machine, identification checks, and
the cash register could not be more than $2.00 in error. Thus, Dr. Hodo’s
evaluation placing the claimant in marked and extreme categories does
not match the medical record and the observations at the hearing.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
The claimant has past relevant work as a Drapery Sewer, light, semiskilled
and Cashier, light, unskilled. Accordingly, the claimant is unable to
perform past relevant work.
The claimant was born on February 11, 1970 and was 41 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is not disabled, whether
or not the claimant has transferable job skills (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2).
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).
If the claimant had the residual functional capacity to perform the full
range of light work, a finding of not disabled would be directed by
Medical-Vocational Rule 202.21. However, the claimant’s ability to
perform all or substantially all of the requirements of this level of work
has been impeded by additional limitations. To determine the extent to
which these limitations erode the unskilled light occupational base, the
Administrative Law Judge asked the vocational expert whether jobs exist
in the national economy for an individual with the claimant’s age,
education, work experience, and residual functional capacity. The
vocational expert testified that given all of these factors the individual
would be able to perform the requirements of representative occupations
such as the following: Garment Folder, DOT 369.687-018, light, unskilled
(13,000 jobs in Alabama and 500,000 jobs nationally); Garment Sorter, DOT
789.687-058, light, unskilled (10,000 jobs in Alabama and 200,000 jobs
nationally); and Tagger, DOT 794.687-058, light, unskilled (4,000 jobs in
Alabama and 300,000 jobs nationally).
Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert’s testimony is consistent with the information contained
in the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant is capable of
making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of not disabled is therefore
appropriate under the framework of the above-cited rule.
The claimant has not been under a disability, as defined in the
Social Security Act, from June 20, 2011, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).
(Tr. 14-15, 15, 15-17, 17-18, 18, 19-22, 23-24, 24-25, 26 & 27 (internal citations and some
quotation marks omitted; emphasis in original).) The Appeals Council affirmed the
ALJ’s decision (Tr. 1-3) and, thus, the hearing decision became the final decision of the
Commissioner of Social Security.
In all Social Security cases, the claimant bears the burden of proving that she is
unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (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. at 1005. Once the claimant meets this burden, as here, it becomes the
Commissioner’s burden to prove that the claimant is capable, given her age, education
and work history, of engaging in another kind of substantial gainful employment,
which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform those light jobs
identified by the vocational expert, is supported by substantial evidence. Substantial
evidence is defined as more than a scintilla and means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether
substantial evidence exists, we 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).2 Courts are precluded, however, from
“deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.
Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam)3 (citing Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005)). And, “’[e]ven if the evidence preponderates against the
Commissioner’s findings, [a court] must affirm if the decision reached is supported by
substantial evidence.’” Id. (quoting Crawford v. Commissioner of Social Security, 363 F.3d
1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, plaintiff raises the sole issue that the ALJ erred in
finding she does not meet Listing 12.04. (Doc. 16, at 1; see also id. at 1-8.) In this circuit,
Pentakota bears the burden of proving that she has an impairment which meets or is
medically equivalent to a listed impairment. Frame v. Commissioner, Social Security
Administration, 2015 WL 150733, *2 (11th Cir. Jan. 13, 2015) (“To prevail at step three, the
claimant must provide specific evidence—such as medical signs, symptoms, or
laboratory-test results—showing that her impairment meets or medically equals a listed
impairment. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 891 (1990). ‘For a claimant
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
to show that h[er] impairment matches a listing, it must meet all of the specified medical
criteria. An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.’”); see also Himes v. Commissioner of Social Security, 585
Fed.Appx. 758, 762 (11th Cir. Sept. 26, 2014) (“To meet a Listing, the claimant must meet
all of the specified medical criteria, and an impairment that fails to do so does not
qualify no matter how severely it meets some of the criteria. The claimant bears the
burden of proving [s]he meets a Listing. A claimant must have a diagnosis included in
the Listings and provide medical reports showing that [her] conditions meet the specific
criteria of the Listings and the duration requirement. However, an impairment cannot
meet the criteria of a Listing based only on a diagnosis.” (internal citations omitted));
Barclay v. Commissioner of Social Security Administration, 274 Fed.Appx. 738, 741 (11th Cir.
Mar. 12, 2008) (“The claimant has the burden of proving an impairment meets or equals
a listed impairment. To meet a Listing, a claimant must have a diagnosis included in the
Listings and must provide medical reports4 documenting that the conditions meet the
specific criteria of the Listings and the duration requirement.” (quotation marks and
citations omitted; footnote added)). Once an impairment is shown to meet or medically
equal a listed impairment, a claimant is “conclusively presumed to be disabled based on
. . . her medical condition.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).
To establish presumptive disability under Listing §12.04, the listing for affective
disorders, a claimant “must meet the requirements in both paragraphs A and B, or meet
the requirements in paragraph C.” Himes, supra, 585 Fed.Appx. at 762 (citation omitted).
“Medical opinions are ‘statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [a claimant’s]
impairment[s].’” Himes, supra, 585 Fed.Appx. at 762, quoting 20 C.F.R. §§ 404.1527(a)(2) &
Paragraph A requires medically documented persistence, either
continuous or intermittent, of a qualifying depressive syndrome, manic
syndrome, or bipolar syndrome. Paragraph B requires that the medically
documented persistent syndrome result in at least two of the following:
(1) marked restriction of activities of daily living; (2) marked difficulties in
maintaining social functioning; (3) marked difficulties in maintaining
concentration, persistence, or pace; or (4) repeated episodes of
decompensation, each of extended duration. Marked means more than
moderate but less than extreme, and occurs when the degree of limitation
seriously interferes with a claimant’s ability to function independently,
appropriately, effectively, and on a sustained basis. Episodes of
decompensation are exacerbations or temporary increases in symptoms or
signs accompanied by a loss of adaptive functioning, as manifested by
difficulties in performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or pace. To have
a repeated episode of extended duration, a claimant must have three
episodes within one year, or an average of once every four months, each
lasting at least two weeks.
Paragraph C requires a medically documented history of a chronic
affective disorder of at least 2 years’ duration that has caused more than a
minimal limitation of ability to do basic work activities, with symptoms or
signs currently attenuated by medication or psychosocial support, in
addition to one of the following: (1) repeated episodes of decompensation,
each of extended duration; (2) a residual disease process resulting in such
marginal adjustment that it is predicted that even a minimal increase in
mental demands or change in the environment would cause
decompensation; or (3) a current history of at least one years’ inability to
function outside a highly supportive living arrangement, and an
indication that this arrangement needs to be continued.
Id. at 763 (internal citations, quotation marks, and brackets omitted).
In this case, plaintiff makes no attempt to establish that her impairments meet the
requirements in paragraph C (see Doc. 16); therefore, the sole focus herein will be
whether Pentakota has established that she meets the requirements in both paragraphs
A and B. See Himes, supra, 585 Fed.Appx. at 762. As for paragraphs A and B, plaintiff
specifically contends in her brief that “[s]he exhibits bipolar syndrome with marked
restriction of activities of daily living, marked difficulties in maintaining social
functioning and marked difficulties in maintaining concentration, persistence or pace.”
(Doc. 16, at 7.) Because Pentakota makes no argument that the ALJ erred in finding she
has not experienced repeated episodes of decompensation, each of extended duration
(see id.), and the record fails to demonstrate three episodes of decompensation during a
single year (see, e.g., Tr. 439 & 602 (June 2011 hospitalization for two or three days due to
plaintiff being off her medications and alcohol abuse); Tr. 57 & 702-722 & 766 (March
2012 hospitalization for five days caused by one of her medications, specifically
Risperdal)), the Court’s task becomes one of determining whether the plaintiff has
shown that she has “at least two of the following: (1) marked restriction of daily living;
(2) marked difficulties in maintaining social functioning; [and] (3) marked difficulties in
maintaining concentration, persistence, or pace[.]” Lee v. Commissioner, Social Security
Administration, 551 Fed.Appx. 539, 542 (11th Cir. Jan. 8, 2014) (citation omitted).
This Court simply cannot agree with Pentakota’s argument that “[t]he ALJ has
failed to identify any substantial evidence to support his decision that [she] does not
meet Listing 12.04.” (Doc. 16, at 7.) Indeed, substantial evidence supports the ALJ’s
decision that Pentakota did not satisfy Paragraph B, which is the proper framing of the
issue. See Lee, supra. The medical evidence does not reveal that Pentakota had marked
limitations in activities of daily living, maintaining social functioning, or maintaining
concentration, persistence or pace. For instance, although Dr. David W. Hodo noted
during his one-time examination of plaintiff on July 17, 2012 that Pentakota “did have
trouble concentrating” (Tr. 773), another one-time examiner indicated that her
concentration was not impaired (Tr. 339-340) and the record contains other indications
that her concentration was not impaired or otherwise was okay when on appropriate
medication (see, e.g., Tr. 334 & 336). Moreover, there are numerous indications in the
medical record that plaintiff had a circle of friends and never exhibited any severe
problems with social functioning. (Compare, e.g., Tr. 338 (“Mrs. P[entakota] does not
appear to have any impairments in social functioning. This was evidence by display of
appropriate social skills. She reports  that she has multiple friends an[d] has no
problems initiating or sustaining friendships.” (emphasis supplied)) with Tr. 474
(Pentakota reported good socialization skills), Tr. 475 (reference to Paul Smith, a friend),
Tr. 722 & 784 (reference to a boyfriend); Tr. 484 & 773 (she goes to church as often as she
can and attends the Baptist church); Tr. 779 (reference made to a “good friend”).)
Finally, the medical evidence indicates that plaintiff’s grooming was appropriate (Tr.
293, 296, 299, 302, 334, 336; see also, e.g., Tr. 353, 357, 407, 409 & 765 (“Well appearing,
well nourished in no distress.”)), she is able to independently care for her grooming and
hygiene (Tr. 338; see also Tr. 346 (“She is clean, well-groomed, well-dressed . . . .”)), and,
as well, is able to engage in numerous other activities of daily living (Tr. 338 (she can
drive and cook); Tr. 344 (she drives, shops, cooks, and performs household chores,
including sweeping, mopping, vacuuming, washing dishing); Tr. 474 (Pentakota
referenced doing extra things around her home); Tr. 773 (“She does some housework,
and she cuts the grass sometimes.”); Tr. 779 (“She relaxes with her dog.”); Tr. 780
(“Enjoying reading a good book. Client helps her mother most days.”) & Tr. 784
(“Planted a garden for her mother. She and her boyfriend will keep up the garden for
her mother.”).) This evidence is consistent with the Psychiatric Review Technique form
completed by non-examiner, Dr. Harold Veits, on September 8, 2011 (Tr. 509-522
(reflecting mild restriction of activities of daily living, moderate difficulties in
maintaining social functioning and difficulties in maintaining concentration, persistence
or pace, and one or two episodes of decompensation)), as well as the clear evidence of
record that plaintiff’s mental condition is manageable when she takes her medications
and the proper medications have been supplied for her use (compare Tr. 51 (plaintiff’s
testimony that when her psychiatric medications are right and she is not using any
alcohol or a controlled substance, her psychiatric condition significantly improves) with,
e.g, Tr. 439 & 602 (June 2011 hospitalization for two or three days due to plaintiff being
off her medications and alcohol abuse); and Tr. 57 & 702-722 & 766 (March 2012
hospitalization for five days caused by one of her medications, specifically Risperdal)),
and supplies substantial support for the ALJ’s decision that Pentakota had mild
restrictions in activities of daily living and moderate difficulties in social functioning
and maintaining concentration, persistence or pace.5
To the extent Pentakota relies upon the Mental Medical Source Statement
completed by one-time examiner Dr. David Hodo6 on July 24, 2012 (Tr. 774-775) as
contradictory of the ALJ’s findings, such reliance need fail7 inasmuch as the ALJ
identified specific and adequate reasons for rejecting the findings of Dr. Hodo (see, e.g.,
Tr. 26 (identification of reasons for rejecting Dr. Hodo’s “marked or extreme limitations
in all functional areas”)), cf. Gilabert v. Commissioner of Soc. Sec., 396 Fed.Appx. 652, 655
(11th Cir. Sept. 21, 2010) (per curiam) (“Where the ALJ articulated specific reasons for
failing to give the opinion of a treating physician controlling weight, and those reasons
are supported by substantial evidence, there is no reversible error.”), and plaintiff did
However, even assuming, that the ALJ erred in finding plaintiff had only
moderate limitations in maintaining concentration, persistence, or pace, as opposed to marked
limitations, “any error was harmless” because Pentakota had to meet two of the four criteria in
Paragraph B, and she makes no argument (or showing) that she had the requisite episodes of
decompensation that were of extended duration. See Himes, supra, 585 Fed.Appx. at 764.
The ALJ twice mistakenly identifies Dr. Hodo as plaintiff’s treating psychiatrist
(see Tr. 24 & 26); he is not plaintiff’s treating psychiatrist, as he saw her on only one occasion, on
July 17, 2012 (Tr. 772-773), and then some seven days later completed a mental medical source
statement (Tr. 774-775).
In addition, to the extent plaintiff seems to suggest that the ALJ was prohibited
from relying upon evidence of record existing prior to her amended onset date of June 20, 2011
(Tr. 38), the undersigned cannot agree both because plaintiff has never “withdrawn” her claim
for disability insurance benefits (compare Doc. 1, at 1 with Doc. 16, at 1), despite her date last
insured of September 30, 2007 (Tr. 14), and because plaintiff cites to medical evidence of record
existing prior to June 20, 2011, in support of her claims for relief (see Doc. 16, at 1-2 & 3-4).
not identify in her brief as a specific assignment of error the ALJ’s rejection of Dr.
Hodo’s functional limitations (see Doc. 16).
Because Pentakota has not shown that the ALJ erred at step three, the only error
raised in her brief (see Doc. 16), and because substantial evidence supports the
Commissioner’s decision as a whole,8 the decision denying benefits must be affirmed.
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be affirmed.
DONE and ORDERED this the 6th day of March, 2015.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
In other words, based upon the contents of the record as a whole (see, e.g., Tr. 43,
51-56, 199-206, 293-308, 334-340, 343-347, 351-358, 381-395, 407-410, 439, 455-457, 472-522, 537539, 551-563, 602-623, 638, 675-690, 702-711, 721-722, 762-767 & 777-793), the Court cannot agree
with the statement of plaintiff’s counsel during oral argument that the ALJ’s RFC determination
(see Tr. 16-17) was a product of “atmospheric extraction.”
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