Bishop v. Colvin
Filing
20
Order re: 1 Complaint filed by Deshay Bishop stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for childhood disability insurance benefits and supplemental security income be AFFIRMED as set out. Signed by Magistrate Judge Sonja F. Bivins on 3/27/2017. Copies to parties. (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DESHAY BISHOP,
*
*
*
*
*
*
*
*
*
*
*
Plaintiff,
vs.
NANCY BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.
CIVIL ACTION NO. 15-00500-B
ORDER
Plaintiff
judicial
Social
Deshay
Bishop
of
final
review
Security
a
denying
(hereinafter
decision
his
claim
of
for
“Plaintiff”),
the
seeks
Commissioner
childhood
of
disability
insurance benefits and supplemental security income under Titles
II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et
seq.,
and
consented
1381,
to
et
seq.
have
the
proceedings in this case.
On
December
undersigned
(Doc. 17).
5,
2016,
conduct
the
any
parties
and
all
Thus, the action was
referred 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.
1
Upon careful consideration
Nancy Berryhill became the Acting Commissioner of Social
Security on January 23, 2017.
Pursuant to Rule 25(d), Federal
Rules of Civil Procedure, Nancy Berryhill should be substituted
for Carolyn W. Colvin as the defendant in this suit. No further
action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).
of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
AFFIRMED.
I.
Procedural History2
Plaintiff filed his applications for childhood disability
insurance benefits and supplemental security income on January
31, 2012, alleging disability beginning on March 6, 2006, based
on
“seizures.”
(Tr.
244,
253,
278,
283).
Plaintiff’s
application was denied and upon timely request, he was granted
administrative hearings on July 17, 2013, and on February 28,
2014,
before
Administrative
(hereinafter “ALJ”).
Law
Judge
(Id. at 49, 73).
Thomas
M.
Muth,
II
Plaintiff attended the
hearings with his counsel and provided testimony related to his
claims.
(Id. at 53, 79).
A vocational expert (“VE”) also
appeared at each hearing and provided testimony.
86).
(Id. at 69,
On March 28, 2014, the ALJ issued an unfavorable decision
finding that Plaintiff is not disabled.
(Id. at 30-41).
The
Appeals Council denied Plaintiff’s request for review on August
3, 2015.
(Id. at 1).
Therefore, the ALJ’s decision dated March
28, 2014, became the final decision of the Commissioner.
Having
exhausted
his
administrative
2
remedies,
Plaintiff
The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF, not the page numbers assigned
by the Agency.
2
timely filed the present civil action.
(Doc. 1).
The parties
waived oral argument on December 5, 2016 (Doc. 16) and agree
that this case is now ripe for judicial review and is properly
before
this
Court
pursuant
to
42
U.S.C.
§§
405(g)
and
1383(c)(3).
II.
Issues on Appeal
1. Whether the ALJ erred in failing to give
“considerable” weight to the opinions of
Plaintiff’s
treating
neurologist,
Dr.
Abdel Kasmia, M.D.?
2. Whether the ALJ erred in evaluating the
testimony of Plaintiff and his mother?
3.
Whether the ALJ erred in failing to rely
on the vocational experts’ responses to
hypotheticals that assumed restrictions
in excess of the RFC?
III. Factual Background
Plaintiff was born on March 11, 1988, and was twenty-three
years of age at the time that he filed his applications for
benefits.
became
(Tr.
disabled
244,
on
253,
March
278).
6,
Plaintiff
2006,
five
alleges
days
that
before
eighteenth birthday, as a result of frequent seizures.
he
his
(Id. at
278, 283).
Following graduation from high school in 2006, Plaintiff
attended
college
as
a
full
time
student
and
associate’s degree in computer science in 2009.
79).
earned
an
(Id. at 54,
Plaintiff has never worked, except while in college when
3
he worked part-time as an office assistant.
283).
(Id. at 54-55, 79,
In his Disability Report submitted to the Agency and at
his administrative hearings, Plaintiff stated that he is not
able to work because of seizures, which cause him to bite his
tongue and become incontinent and leave him feeling fatigued and
unable to concentrate.
(Id. at 59, 80-81, 283).
IV. 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
3
consists
of
“such
relevant
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).
4
evidence as a reasonable person would accept as adequate to
support
a
conclusion.”).
In
determining
whether
substantial
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.
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).
V.
Statutory And Regulatory Framework
This
matter
involves
disability
insurance
income.
An
an
benefits
individual
application
and
who
for
applies
for
supplemental
security
for
Security
Social
disability benefits must prove his or her disability.
§§ 404.1512, 416.912.
childhood
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.
§§
423(d)(1)(A);
see
also
20
provide
a
C.F.R.
§§
404.1505(a), 416.905(a).
The
Social
Security
regulations
five-step
sequential evaluation process for determining if a claimant has
proven his disability.
20 C.F.R. §§ 404.1520, 416.920.
The
claimant must first prove that he or she has not engaged in
substantial
gainful
activity.
The
5
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,
must
he
or
she
proceed
to
the
fourth
step
where
the
claimant must prove an inability to perform their past relevant
work.
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986).
evaluating
whether
the
claimant
has
met
this
burden,
In
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
significant
claimant’s
numbers
residual
work history.
1985).
gainful
in
employment
the
which
national
capacity,
functional
economy,
age,
exists
given
education,
in
the
and
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
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.
Apfel, 190 F.3d 1224, 1228 (11th
6
Cir. 1999).
Jones v.
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)).
Because Plaintiff is over eighteen years of age and seeks
child’s benefits under the Social Security Act, he must also
establish that (1) he is dependent on an insured parent who is
entitled to old-age or disability benefits or has died; (2) he
is unmarried; and (3) at the time of filing, he was under age
18, or age 18 or older and has a disability that began before he
became 22 years old.
See Bailey v. Colvin, 2016 U.S. Dist.
LEXIS 171783, *6, 2016 WL 7210404, *2 (N.D. Ala. Dec. 13, 2016)
(citing
42
U.S.C.
Commissioner
§
402(d)(1);
evaluates
a
claim
20
C.F.R.
for
adult
§
404.350).
child
The
disability
benefits under the same standards generally applicable to adults
applying on their own wage records by employing the five-step
evaluation
process
listed
above.
Id.
(citing
20
C.F.R.
§§
erred
in
404.1505(a), 404.1520(a)(4)(i)-(v)).
VI.
Discussion
A. The ALJ did not err in failing to give
“considerable” weight to the opinions of
Plaintiff’s
treating
neurologist,
Dr.
Abdel Kasmia, M.D.
In
his
brief,
Plaintiff
argues
that
the
ALJ
failing to give “considerable” weight to the opinions of his
treating neurologist, Dr. Abdel Kasmia, M.D.
(Doc. 11 at 2).
Because of this, Plaintiff argues, the RFC is not supported by
7
substantial evidence.
Having reviewed the record at length, the
Court finds that Plaintiff’s argument is without merit.
As part of the disability determination process, the ALJ is
tasked
with
examining,
weighing
and
the
opinions
non-examining
and
findings
physicians.
of
In
treating,
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.
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
physician.
not
entitled
to
the
same
deference
as
a
treating
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).
An ALJ is also “required to consider the
opinions of non-examining state agency medical and psychological
8
consultants because they ‘are highly qualified physicians and
psychologists who are also experts in Social Security disability
evaluation.’”
(11th
Milner v. Barnhart,
Cir.
2008)
404.1527(f)(2)(i)).
examining
(unpublished)
“The
sources
when
examining sources.”
275 Fed. Appx. 947, 948
ALJ
they
may
do
(citing
rely
not
on
20
C.F.R.
opinions
conflict
with
of
§
non-
those
of
Id. (citing Edwards v. Sullivan, 937 F.2d
580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining
physicians,
testimony
any
of
good
medical
cause
source
exists
when
it
to
is
discredit
contrary
to
the
or
unsupported by the evidence of record.
Phillips v. Barnhart,
357 F.3d 1232, 1240 (11th Cir. 2004).
“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).
The ALJ is “free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”
764
F.2d
834,
835
(11th
Cir.
1985)
(per
Sryock v. Heckler,
curiam)
(citation
omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,
212
(11th
Cir.
2010)
(The
ALJ
may
reject
any
medical
opinion if the evidence supports a contrary finding.).
In this case, the ALJ found that Plaintiff has the severe
9
impairments of seizure disorder, depression, asthma, obesity,
and personality disorder.
(Tr. 32).
that,
severe
despite
Plaintiff’s
The ALJ further found
impairments,
he
has
the
residual functional capacity to perform a range of light work,
subject
to
the
following
restrictions:
Plaintiff
“can
stand
and/or walk four hours, no more than one hour at a time, and
sit[] six hours.
He can perform frequent pushing and/or pulling
with the upper extremities, bilaterally, and frequent pushing
and/or pulling with the lower extremities, bilaterally.
He can
perform
stoop,
frequent[]
balancing.
He
can
occasionally
occasionally kneel, occasionally crouch, occasionally crawl, and
occasionally climb ramps and stairs.
of ladders, ropes or scaffolds.
He can perform no climbing
The claimant can frequently
reach, bilaterally, and frequently handle bilaterally.
continuously
finger,
bilaterally.
He can tolerate occasional exposure to pulmonary
irritants.
bilaterally,
and
continuously
He can
He must avoid all exposure to unprotected heights
and avoid all exposure to dangerous machinery.
He cannot work
in close proximity to unprotected bodies of water.
operate motor vehicles.
month.
feel,
He cannot
He would have one unplanned absence per
He can perform simple, routine tasks with no more than
simple, short instructions and simple work-related decisions and
few work place changes.
He can perform work involving non-
transactional
with
interaction
10
the
public.
He
can
sustain
concentration and attention for two-hour periods with customary
breaks.”
(Id. at 34).
relevant
work;
The ALJ found that Plaintiff has no past
however,
relying
on
the
testimony
of
the
vocational expert, the ALJ concluded that Plaintiff can perform
the jobs of kitchen helper, laundry worker, and mail clerk, all
unskilled and light.
(Id. at 39-40).
In support of the RFC, the ALJ relied on evidence that
Plaintiff
eighteen
had
years
his
first
old.
seizure
(Id.
at
in
March
408).
conducted after the seizure was normal.
An
2006,
MRI
when
of
he
his
(Id. at 428).
(Id.).
(Id.
At that time, Dr. Kasmia prescribed no treatment.
Plaintiff
was
hospitalized
on
May
6,
2006,
complaining that he had a strange feeling in his head.
429-30).
brain
On March
7, 2006, Plaintiff began treatment with Dr. Abdel Kasmia.
at 645).
was
after
(Id. at
A CT scan of his brain taken at that time revealed
nothing remarkable.
(Id. at 408, 434).
The following year, on July 9, 2007, Plaintiff reported a
seizure and was again hospitalized.
date was also normal.
A CT scan conducted on that
(Id. at 403).
While in the hospital,
Plaintiff was prescribed a seizure medication, Dilantin.
at 398).
At a follow up visit, Dr. Kasmia diagnosed Plaintiff
with seizure disorder and continued to prescribe Dilantin.
at 646).
(Id.
(Id.
On October 16, 2007, Dr. Kasmia noted that Plaintiff
was “stable” and had not experienced any further symptoms.
11
(Id.
at
647).
Likewise,
in
January
2008,
Dr.
Kasmia
noted
that
Plaintiff was “doing well” on Dilantin “with no side effects”
and no reoccurrence of seizures.
August,
September,
and
November
(Id. at 648).
of
2008,
In April,
Plaintiff
again
experienced seizures, and Dr. Kasmia, as well as Plaintiff’s
other treatment providers, noted that he was non-compliant with
his medication.4
From
seizures,
(Id. at 453, 459-60, 463, 649, 703).
2009
and
through
his
Dilantin levels.
2012,
treatment
Plaintiff
providers
continued
continued
to
to
report
note
low
(Id. at 463, 519, 521, 603, 605, 639, 650,
652, 687-88, 691, 695-96, 699, 701).
His examination findings
were consistently normal during that time.
(Id.).
On October
16, 2012, Dr. Kasmia prescribed Keppra in addition to Dilantin.
(Id. at 652).
On December 4, 2012, Dr. Kasmia noted “no side
effects” from the medication.
In
2013,
Plaintiff
and
(Id. at 654).
his
mother
reported
that
his
seizures were better, with a frequency on average of about one
4
The generally accepted therapeutic range of Dilantin (phenytoin)
is 10 to 20 mcg/mL.
See https://www.drugs.com/dosage/phenytoin
.html. On November 4, 2008, Plaintiff was taken by ambulance to
the emergency room following a seizure, and the treating
physician noted “medical noncompliance,” Dilantin level “0.”
(Tr. 459-60, 463).
On April 21, 2009, Plaintiff presented to
the Atmore Family Medicine Clinic, and Dr. Yoder noted that
Plaintiff’s Dilantin level was less than one. (Id. at 701). On
March 2, 2010, Dr. Kasmia noted that Plaintiff “had a history of
noncompliance with his medication and his level had been low
several occasions.” (Id. at 650).
12
per month.
(Id. at 738, 743).
On May 28, 2013, Dr. Kasmia
noted that Plaintiff’s medication levels were low (less than
seven),
despite
increased.5
the
fact
that
his
prescriptions
had
been
(Id. at 743).
On that same date, May 28, 2013, Dr. Kasmia completed a
“Seizures
Residual
Functional
Capacity
Questionnaire”
stating
that Plaintiff had been a patient since 2006, that Plaintiff was
being
treated
for
a
“seizure
disorder”
which
caused
unspecified/generalized tonic/clonic seizures resulting in loss
of consciousness lasting two-three minutes, incontinence, and
confusion following the seizure; that Plaintiff had one seizure
in December 2012, one in January 2013, and one in February 2013;
and
that
during
a
seizure
it
would
be
necessary
to
remove
glasses, loosen tight clothing, clear the area of hard or sharp
objects, and turn the patient on the side to allow saliva to
drain from the mouth.
(Id. at 735-37).
Dr. Kasmia further
stated that Plaintiff is compliant with his medication.
736).
He
addition,
noted
Dr.
no
Kasmia
medication
opined
side
that
5
(Id. at
effects.
(Id.).
In
Plaintiff’s
seizures
were
On occasion from 2008 through 2012, Plaintiff’s Dilantin levels
were within the therapeutic range, and on one occasion it was
high. (Tr. 509, 596, 623, 682, 708). Nevertheless, as stated,
the record is replete with references from 2007 to 2013
regarding
low
Dilantin
levels
and
non-compliance
with
medication. (Id. at 462-63, 493, 517, 521, 525, 599, 605, 642,
649-50, 663-64, 672, 688, 691, 699, 701, 712, 744, 774).
13
“likely to disrupt the work of co-workers,” that Plaintiff would
need “more supervision at work than an unimpaired worker,” that
Plaintiff could not work at heights, with power machines, or
motor vehicles but could take a bus alone; that Plaintiff would
sometimes need to take unscheduled breaks during an eight-hour
working day; and that Plaintiff was incapable of tolerating even
a low stress job.
(Id. at 736-37).
On December 10, 2013, Plaintiff reported seizure frequency
of
approximately
Plaintiff’s
family
controlled”
on
once
“tha[n] ever.”
or
member
his
twice
reported
current
(Id.).
per
month.
that
medication
he
(Id.
was
(Keppra
at
772).
“much
and
better
Dilantin)
On that same date, Dr. Kasmia’s records
reflect that Plaintiff’s Dilantin level was extremely low (1.0).
(Id. at 774).
As Plaintiff points out, the ALJ assigned limited weight to
some
of
Dr.
Functional
Kasmia’s
Capacity
opinions
in
Questionnaire,
the
Seizures
finding
that
Residual
some
of
the
opinions were “completely at odds with his own lengthy treating
and office notes, reports and the repeated lab studies.”
at
38-39).
Kasmia
(as
Plaintiff’s
The
well
record
as
routine
confirms
other
the
ALJ’s
treatment
non-compliance
with
finding
providers)
medication
that
(Id.
Dr.
documented
and
low
levels of Dilantin; yet, in the RFC questionnaire, Dr. Kasmia
opined that Plaintiff was compliant with his medication.
14
(Id.
at 462, 493, 649-50, 735).
In addition, as the ALJ found, Dr.
Kasmia failed to explain why Plaintiff’s Dilantin levels were
below
the
therapeutic
level
(if
he
was
compliant
with
his
medication), despite being asked to do so on the questionnaire.
(Id. at 736).
Notably, the ALJ credited Dr. Kasmia’s opinions
that Plaintiff’s seizures were likely to disrupt his co-workers,
that he would require more supervision, and that he could not
work
with
machinery
or
drive.
(Id.
at
38).
The
ALJ
accommodated those limitations by including a restriction in the
RFC
that
heights
Plaintiff
and
avoid
“must
all
avoid
exposure
all
to
exposure
dangerous
to
unprotected
machinery.
He
cannot work in close proximity to unprotected bodies of water.
He cannot operate motor vehicles. . . . He can perform simple,
routine tasks with no more than simple, short instructions and
simple work-related decisions and few work place changes.
He
can perform work involving non-transactional interaction with
the public.”
(Id. at 34).
Plaintiff
also
correctly
points
out
that
the
ALJ
erroneously stated that Dr. Kasmia opined that Plaintiff could
tolerate “moderate” stress.
opined
in
the
RFC
(Id. at 38).
Questionnaire
tolerate even low stress jobs.
that
In fact, Dr. Kasmia
Plaintiff
(Id. at 737).
could
not
However, the
Court finds that this opinion by Dr. Kasmia is inconsistent with
the
substantial
evidence
in
15
this
case.
Specifically,
Plaintiff’s
treatment
records
reflect
routinely
normal
examination findings and test results (id. at 403, 414, 473-75,
637,
646,
repeated
652,
addition,
levels.
Dr.
his
effects.
656,
non-compliance
medication
taking
654,
658,
with
(Id.
738,
the
at
743,
medication
462,
493,
treatment
records
medication,
Plaintiff
“d[id]
as
regimen,
521,
Kasmia’s
(Id. at 648, 772).
772),
well
as
and
low
649-50).
reflect
In
when
without
well”
that,
side
Also, consultative psychologist,
Dr. Robert Defrancisco, Ph.D., examined Plaintiff in 2009, and
found
that
orientation,
opined
his
concentration,
and
affect
that
persistence,
were
“normal,”
had
no
Plaintiff
and
pace,
Dr.
psychiatric
limitations, and no restriction of activities.
memory,
Defrancisco
problems,
no
(Id. at 473-75).
In addition, consultative neurologist, Dr. Todd Elmore, M.D.,
examined Plaintiff in 2012 and opined that his Dilantin levels
were low despite being prescribed a “pretty high dose;” that
“[i]n
between
examination
seizures
findings
he
were
is
fine;”
that
his
unremarkable;
that
he
neurologic
could
work,
particularly a sedentary job, as long as he did not drive or
work around hazardous/dangerous conditions and as long as the
work
accommodated
unscheduled basis.
missing
one
to
two
days
a
month
on
an
(Id. at 636-37).
As the ALJ found, the severity of limitations expressed by
Dr. Kasmia in the RFC Questionnaire is inconsistent with the
16
substantial evidence in this case. 6
Therefore, the ALJ had good
cause to discredit those opinions.7
In
addition,
detailed
above,
the
that
Court
finds,
substantial
based
evidence
on
the
supports
evidence
the
ALJ’s
finding that Plaintiff has the residual functional capacity to
perform a range of light work, with the stated restrictions.
(Tr. 34).
Residual functional capacity is a measure of what
Plaintiff can do despite his or her credible limitations.
20 C.F.R. § 404.1545.
See
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.
See Beech v. Apfel,
100 F. Supp. 2d 1323, 1331 (S.D. Ala. 2000) (citing 20 C.F.R. §
404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
6
It is also worth noting that Plaintiff has alleged disability
beginning March 6, 2006, after which he obtained a degree in
2009 in computer science, attending college full time and
missing class only once every other month.
(Tr. 54, 57, 278).
7
The Court is also aware of Dr. William Harigel’s letter dated
February 28, 2014 (from Atmore Family Medicine Clinic) opining
that Plaintiff’s seizures have been difficult to control and
manage, that his condition has affected his quality of life
(causing him anxiety and embarrassment from incontinence during
the seizure), and that “it has affected his overall quality of
life and ability to function in society.” (Tr. 775). The Court
finds that Dr. Harigel’s opinions do not take into consideration
the evidence of non-compliance in this case and that the
limitations expressed by Dr. Harigel do not, in any event,
exceed the requirements of the RFC.
17
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
Once the ALJ has
functional
demonstrating
capacity,
that
decision is not supported by substantial evidence.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).
the
the
ALJ’s
See Flynn v.
Plaintiff has
failed to meet his burden in this case.
In formulating Plaintiff’s RFC, the ALJ discussed in detail
the medical evidence and took into account that Plaintiff has a
history
of
machinery.
seizures
and
(Tr. 39).
should
not
drive
or
operate
heavy
The ALJ also correctly observed that
Plaintiff is functioning at a level which allowed him to attend
college full time and obtain a degree in computer science.
In
the
imposed
by
restrictions
to
RFC,
Plaintiff’s
simple,
the
ALJ
accommodated
seizure
routine
tasks
activity
by
involving
the
limitations
including
non-transactional
interaction
with the public simple and requiring that the work allow one
unplanned absence per month.8
(Id. at 34).
Based on the totality of the record, the Court finds that
substantial evidence supports the ALJ’s RFC for a range of light
work, with the stated restrictions, and that these restrictions
8
As discussed herein, this limitation is supported by statements
from Plaintiff, his mother, Dr. Kasmia, and Dr. Defrancisco that
the frequency of Plaintiff’s seizure activity is approximately
one per month. (Tr. 78, 473, 699, 735, 738, 743).
18
fully accommodate Plaintiff’s physical and mental impairments.
In
addition,
as
stated
above,
the
Court
also
finds
that
substantial evidence supports the ALJ’s determination of weight
to be given to the expert opinions in this case.
reasons, Plaintiff’s claim
For these
that the RFC is not supported by
substantial evidence is without merit.
B. The ALJ did not err in evaluating the
testimony of Plaintiff and his mother.
Plaintiff next argues that the ALJ erred
in failing to
consider an updated seizure calendar completed by Plaintiff’s
mother, dated August 1, 2013 to February 28, 2014, that was made
a part of the record at the supplemental hearing on February 28,
2014.
(Doc. 11 at 16).
Plaintiff also argues that the ALJ
erred in evaluating the credibility of his testimony and his
mother’s testimony regarding the side effects of his medication
and the length of time it takes to recover from a seizure.
(Id.
at 17).
First, with respect to the calendar, Plaintiff argues that,
although
the
calendar
was
admitted
into
evidence
at
the
supplemental hearing, the ALJ did not address the calendar in
his
decision,
decision.
nor
did
According
he
to
attach
it
Plaintiff,
as
the
an
exhibit
calendar
to
his
“provided
documentation of Plaintiff’s seizures for the latter part of
2013 through the date of the hearing, documenting that he had
19
suffered several additional seizures since the time of his first
hearing in July of 2013.”
Plaintiff
is
correct
(Id. at 16).
that
the
ALJ
did
not
specifically
refer to the calendar in his decision or attach it as an exhibit
to his decision.
submitted
at
the
However, a review of the seizure calendar
supplemental
hearing
on
February
28,
2014,
shows that Plaintiff had seizures on August 17, 2013, September
30, 2013, October 22, 2013, November 29, 2013, December 6, 2013,
January 20, 2014, February 10, 2014, and February 20, 2014.
(Tr. 380-86).
While the calendar reflects one instance of two
seizures in the same month, the frequency of seizures reflected
in the calendar is still consistent with the ALJ’s finding of
approximately one seizure per month, which he accommodated in
the RFC.
(Id. at 34, 52, 57, 473, 699, 735).
attorney
acknowledged
at
the
supplemental
Even Plaintiff’s
hearing
that
the
calendar showed a frequency of approximately one seizure per
month.
In
(Id. at 77-78).
addition,
Plaintiff
argues
that
the
ALJ
failed
to
properly consider his testimony and that of his mother that the
high
doses
of
anti-seizure
medication
cause
him
to
suffer
extreme fatigue and that it takes him several days to recover
after having a seizure.
(Doc. 11 at 17).
Plaintiff claims
that the ALJ rejected this testimony without giving specific
reasons for doing so.
The Court disagrees.
20
When
symptoms,
evaluating
the
statements,
ALJ
a
claim
considers
statements
by
based
medical
the
on
disabling
findings,
treating
subjective
a
claimant’s
physician
or
other
persons, and evidence of how the subjective symptoms affect the
claimant’s daily activities and ability to work.
416.929(a).
20 C.F.R. §
In a case where a claimant attempts to establish
disability through his or her own testimony concerning pain or
other subjective symptoms, a three-part standard applies.
standard
condition
requires:
and
“(1)
either
evidence
(2)
of
objective
an
underlying
medical
That
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
554
Soc.
Sec.,
348
Fed.
Appx.
551,
(11th
Cir.
2009)
(unpublished) (quoting Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991)).
The Social Security regulations 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
21
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 . . .
standard
is
itself
disability.”
sufficient
to
support
a
finding
of
Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.
1995).
When
evaluating
a
claim
based
on
disabling
subjective
symptoms, the ALJ must consider all of the claimant’s statements
about his or her symptoms and determine the extent to which the
symptoms
can
reasonably
be
objective medical evidence.
accepted
as
consistent
with
See 20 C.F.R. § 404.1528.
the
If an
ALJ decides not to credit a claimant’s 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 finding.
Strickland v. Commissioner of Soc. Sec., 516
Fed.
832
Appx.
829,
(11th
Foote, 67 F.3d at 1562).
discrediting
testimony
Cir.
2013)
(unpublished)
(citing
Failure to articulate the reasons for
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 subjective symptoms is a factual question to
22
be
made
limited
by
the
review
Secretary
in
the
and,
courts
therefore,
to
ensure
supported by substantial evidence.”
1545,
1549
(11th
Cir.
1985),
“subject
that
to
finding
the
only
is
Hand v. Heckler, 761 F.2d
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
finding related to a claimant’s claims of disabling subjective
symptoms, with substantial supporting evidence in the record.
See Nye v. Commissioner of Social Sec., 524 Fed. Appx. 538, 543
(11th Cir. 2013) (unpublished).
“Regulation
96–7p
and
20
C.F.R.
§§
404.1529(c)(4)
and
416.929(c)(4) require the ALJ to consider the consistency of
subjective
complaints.”
Lindsey
v.
Colvin,
2016
U.S.
Dist.
LEXIS 129547 *12-13, 2016 WL 5253219, *5 (N.D. Ala. Sept. 22,
2016) (quoting Majkut v. Commissioner of Soc. Sec., 394 Fed.
Appx. 660, 663 (11th Cir. 2010)).
SSR 16-3p is a new ruling
which replaces SSR 96-7p and provides as follows:
“[w]e are
eliminating the use of the term ‘credibility’ from our subregulatory policy, as our regulations do not use this term.
In
doing so, we clarify that subjective symptom evaluation is not
an examination of an individual’s character.
Instead, we will
more closely follow our regulatory language regarding symptom
evaluation.”
SSR 16-3p, 2016 SSR LEXIS 42016, WL 1119029, *1.
The effect of the new ruling has been described as follows:
23
Both SSR 96-7p and SSR 16-13p direct that
evaluation
of
a
claimant’s
subjective
symptoms shall consider all evidence in the
record.
Both Rulings also incorporate the
regulations, 20 C.F.R. §§ 404.1529(c)(3) and
416.929(c)(3), that identify factors to be
considered in evaluating the intensity,
persistence
and
functionally-limiting
effects
of
the
symptoms,
including
a
claimant’s daily activities; the nature,
duration, frequency and intensity of her
symptoms;
precipitating
and
aggravating
factors; and the type of medication and
other treatment or measures used for the
relief of pain and other symptoms, i.e., the
familiar factors identified in Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984). But
while SSR 96-7p expressly provided that a
credibility finding was required to be made
under those regulations, SSR 16-3p expressly
provides that use of the term “credibility”
was
being
eliminated
because
the
SSA
regulations did not use it. 81 F.R. at
14167.
SSR
16-3p
further
provides:
In
[eliminating reference to “credibility”], we
clarify that subjective symptom evaluation
is not an examination of an individual’s
character. Instead, we will more closely
follow our regulatory language regarding
symptom evaluation. Id. SSR 16-3p also
expressly provides that the ALJ may not make
conclusory
statements
about
having
considered the symptoms, or merely recite
the factors described in the regulations.
Rather, the determination or decision must
contain specific reasons for the weight
given to the individual’s symptoms, be
consistent, and supported by the evidence,
and be clearly articulated so the individual
and any subsequent reviewer can assess how
the adjudicator evaluated the individual’s
symptoms. Id. at 14171.
Martsolf v. Colvin, 2017 U.S. Dist. LEXIS 2748, *14-15, 2017 WL
77424,
*5
(W.D.
Mo.
Jan.
9,
24
2017);
see
also
McVey
v.
Commissioner of Soc. Sec., 2016 U.S. Dist. LEXIS 93884, *14,
2016 WL 3901385, *5 (M.D. Fla. July 19, 2016) (holding that ALJ
erred in basing her credibility determination on the fact that
the
claimant
sobriety,
had
a
made
matter
inconsistent
which
was
statements
unrelated
to
concerning
his
his
impairment);
Lindsey, 2016 U.S. Dist. LEXIS 129547 at *13, 2016 WL 5253219 at
*5 (“[i]nconsistencies and conflicts in the record evidence and
the claimant’s statements about her symptoms may provide a basis
for discounting the extent of claimant’s statements.”).
Having reviewed the record at length, the Court concludes
that substantial evidence supports the ALJ’s determination that
Plaintiff’s
testimony,
and
that
of
his
mother,
as
detailed
herein, was inconsistent with the objective medical evidence in
the case.
The record shows that both the Plaintiff and his
mother testified that his medication renders him a “zombie” and
that he sleeps essentially all day long most days.
82).
In
seizure,
addition,
he
feels
Plaintiff
drained
and
testified
that,
fatigued,
and
approximately two to four days to recover.
(Tr. 65-66,
following
it
takes
a
him
He also testified
that he now has problems with memory and concentration because
of his seizures.
Contrary
to
(Id. at 80-82).
Plaintiff’s
claim
that
the
ALJ
failed
to
consider this evidence, the record shows that the ALJ expressly
considered this testimony and found it to be inconsistent with
25
the substantial medical evidence in the case.
39).
(Id. at 35-36,
The ALJ stated: “[Plaintiff’s] testimony and that of his
mother were both compelling, but the limitations portrayed were
simply more than the clinical objective record supports; and,
the obvious history of non-compliance did little to enhance the
credibility of the allegations.”
(Id. at 39).
Indeed, the record reflects that Plaintiff tolerated his
medication without significant side effects, as evidenced by Dr.
Kasmia’s treatment notes dated December 4, 2012, which show that
Plaintiff was taking Dilantin and Keppra and “ha[d] no side
effects” (id. at 654), as well as Dr. Kasmia’s treatment notes
dated January 22, 2008, which likewise show “doing well,” “no
side effects.”
Questionnaire,
(Id. at 648).
Dr.
Kasmia
Even in his May 28, 2013, RFC
failed
to
list
any
negative
side
effects experienced by Plaintiff as a result of his medication,
despite being specifically requested to provide that information
if applicable.
(Id. at 736).
Also, contrary to Plaintiff’s claim that his seizures have
had
long
term
effects
on
his
concentration
and
memory,
Dr.
Defrancisco’s examination findings on February 27, 2009, showed
completely normal concentration, persistence, pace, and memory,
despite
Plaintiff’s
report
of
seizures
26
approximately
once
a
month. 9
(Id. at 473-475).
While the record reflects notations
by Dr. Kasmia of reported memory loss by Plaintiff, Dr. Kasmia’s
cognitive examination findings, even as late as December 2013,
were normal.
(Id. at 646, 652, 654, 743, 772).
In any event,
assuming memory loss as alleged, Plaintiff has failed to show
that any limitations caused by his memory loss exceed the RFC,
which includes an accommodation for simple, routine work.
Last, with respect to Plaintiff’s claim that it takes him
one to two days to recover from a seizure, there are no such
reports in his medical records, despite the fact that he has
reported many other details about his seizures over the years.
To the contrary, although Plaintiff suffered from seizures while
attending college full-time, he testified that he missed class
only about once every other month.
belies
his
claim
that
he it
(Id. at 51).
takes
him
two
This testimony
to
four
days
to
recover after having a seizure.
Based on the foregoing, the Court finds that Plaintiff’s
claim that the ALJ erred in failing to consider the seizure
calendar
submitted
evaluating
at
Plaintiff’s
the
supplemental
testimony
and
hearing
that
of
and
erred
his
in
mother
regarding the side effects of his medication, the recovery time
of
his
seizures,
and
the
effects
9
of
the
seizures
on
his
MRI’s and CT scans of Plaintiff’s brain from 2006 to 2012 also
have been completely normal. (Tr. 391, 403, 656, 658).
27
concentration and memory is without merit.
C.
The ALJ did not err in failing to rely
on the vocational experts’ responses to
hypotheticals that assumed restrictions
in excess of the RFC.
Next, Plaintiff argues that the ALJ erred in failing to
rely
on
the
containing
vocational
experts’
restrictions
in
responses
excess
of
to
the
hypotheticals
RFC,
i.e.,
hypotheticals that assumed two unplanned absences from work per
month due to Plaintiff’s seizures, as opposed to one unplanned
absence per month, as included in the RFC.
(Doc. 11 at 18).
Plaintiff states that the evidence supports the more restrictive
hypotheticals
and
responses
those
to
that
the
ALJ
erred
hypotheticals.
in
not
relying
Plaintiff’s
on
the
argument
is
testimony
of
misplaced.
First,
Plaintiff
the
and
ALJ’s
his
findings
mother
that
related
he
to
the
experiences
seizures
more
frequently than once a month and is affected by those seizures
for days has been discussed in detail and will not be repeated
here.
stated,
The Court is satisfied that, for the reasons previously
substantial
evidence
supports
the
ALJ’s
finding
that
Plaintiff could be expected to have one unplanned absence per
month.
added).
(Id. at 57, 78, 473, 699, 735, 738, 743) (emphasis
That
being
established,
when
presented
with
hypotheticals that assumed one unplanned absence per month, both
28
vocational
experts
testified
Plaintiff could perform.
that
there
would
be
jobs
that
(Id. at 70, 89-90).
Moreover, while Plaintiff is correct that the vocational
expert at the first hearing testified that there would be no
work
available
for
Plaintiff
if
he
assumed
two
unplanned
absences per month (Tr. 71), Plaintiff fails to mention that the
second vocational expert testified that, even with two unplanned
absences per month, there would still be jobs that Plaintiff
could
perform.
(Id.
at
91).
The
second
vocational
expert
testified that, under such circumstances, Plaintiff simply would
have to produce a medical excuse.
Because
substantial
(Id.).
evidence
supports
the
ALJ’s
hypothetical limited to one unplanned absence per month, and
because the second vocational expert testified that even with
two unplanned absences per month, there still would be jobs that
Plaintiff
could
perform,
the
Court
finds
that
Plaintiff’s
argument is without merit.
VII.
Conclusion
For
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
childhood
disability
insurance
security income be AFFIRMED.
29
benefits
and
supplemental
DONE this 27th day of March, 2017.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
30
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