Ponquinette v. Colvin

Filing 31

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 8/9/2016. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FRANCO M. PONQUINETTE, IV,

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

CIVIL ACTION 15-520-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling denying a
claim for disability insurance benefits (Docs. 1, 22).

The

parties filed written consent and this action has been referred
to the undersigned Magistrate Judge to conduct all proceedings
and order judgment in accordance with 28 U.S.C. § 636(c),
Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc. 29).
Oral argument was waived in this action (Doc. 30).

After

considering 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

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Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial

evidence 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. Md. 1982).
At the time of the administrative hearing, Ponquinette was
thirty-eight years old, had completed a college education (Tr.
39), and had previous work experience as an executive assistant
(Tr. 55).

Plaintiff alleges disability due to HIV, depression,

and psychosis (Doc. 22 Fact Sheet).
The Plaintiff applied for disability benefits on April 26,
2013, asserting a disability onset date of June 30, 2012 (Tr.
12, 188-91).

An Administrative Law Judge (ALJ) denied benefits,

determining that although he could not return to his past
relevant work, Ponquinette was capable of performing specific
light work jobs (Tr. 12-24).

Plaintiff requested review of the

hearing decision (Tr. 7-8), but the Appeals Council denied it
(Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Ponquinette

alleges the single claim that the ALJ’s fashioning of the
residual functional capacity (hereinafter RFC) is not supported

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by the evidence (Doc. 22).

Defendant has responded to—and

denies—these claims (Doc. 25).

The Court’s summary of the

relevant record evidence follows.1
Ponquinette was admitted to Peachford Behavioral Health
System on June 7, 2012 for acute psychosis, hallucinations,
delusions, and paranoia after smoking crystal meth (Tr. 412-23,
705-25).

Dr. Michael R. Vaughn discharged him five days later;

he was alert, oriented in four spheres, in a good mood with
logical thought process and without delusions.

The discharge

diagnosis was psychosis, NOS and methamphetamine dependence; he
also had syphilis.
On January 16, 2013, Plaintiff was brought to Grady Health
System for manic behavior, behavioral paranoia, and being a
danger to self; he had been smoking methamphetamine and taking
amphetamines and had been detained for disorderly conduct (Tr.
321-48, 377-79, 383-90).

Ponquinette was suffering from

delusions; his thoughts were disorganized.
while insight and judgment were poor.

Memory was impaired

A head CT showed findings

in keeping with a subcentimeter colloid cyst in the region of
the foramen of Monro without hydrocephalus (Tr. 377-79).
Plaintiff was stabilized and discharged.

On January 30,

Ponquinette was seen after taking meth; he was better after

1As Plaintiff’s claim focuses on the mental aspects of his RFC,

the Court’s discussion of the physical realm will be less prominent in
the summary.

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being given anti-psychotic medication (Tr. 391-943).

On

February 12, 2013, Ponquinette was seen for leg abrasions after
getting arrested following two-to-three days of taking crystal
meth; as he was about to be discharged to jail, he screamed that
he was going to kill himself quickly (Tr. 394-97).

The next

day, still in the hospital, Plaintiff claimed to be Jesus; he
indicated that he was depressed, sad, tired, nervous, anxious,
worried, fearful, paranoid, and experiencing auditory
hallucinations most of the time (Tr. 359-76; see also Tr. 55078).

The Social Worker noted that Ponquinette was manic, hyper-

verbal, agitated but cooperative, and that he had illogical
thought process and content; Plaintiff was given Ativan2 and an
anti-psychotic before being discharged to jail.

The diagnostic

impression ruled out major depressive disorder, MRE mixed,
severe, with psychotic features.
On April 7, Plaintiff went to Emory University Hospital
Emergency Department with nausea and vomiting as well as
complaints of abdominal pain after having not eaten in two days;
he was given anti-nausea medication and morphine (Tr. 526-34,
664-72).

2Error! Main Document Only.“Ativan (lorazepam) is indicated for the

management of anxiety disorders or for the short-term relief of the
symptoms of anxiety or anxiety associated with depressive symptoms.”
Its use is not recommended “in patients with a primary depressive
disorder or psychosis” Physician's Desk Reference 2516-17 (48th ed.
1994).

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On April 14, Ponquinette went to the Piedmont Hospital
Emergency Room for shortness of breath for one week’s duration;
he also reported a productive cough, nausea, and vomiting (Tr.
292-306; 673-97).

Plaintiff was noted to have HIV, but was not

taking medication; a chest x-ray was normal.

He was diagnosed

to have acute bronchitis.
Lab results from April 15, 2013 confirmed that Ponquinette
had Human Immunodeficiency Virus (hereinafter HIV) (Tr. 311-20).
On April 18, Plaintiff went to Grady Hospital after being
hit by a car, causing left flank pain and a headache; he was not
confused and denied drug or alcohol use, but was anxious and
expressed the conclusion that the car hit him because he was
homosexual (Tr. 380, 399-407, 549, 579-601).

He was given

Ultram3 and Naproxen4 (Tr. 549).
On May 5, Plaintiff went to Emory Healthcare for general
abdominal pain and shortness of breath for which he was given
Vicodin5 (Tr. 517-25, 655-63).
On June 1, Plaintiff returned to Emory University Hospital

3Error! Main Document Only.Ultram is an analgesic “indicated for

the management of moderate to moderately severe pain.” Physician's
Desk Reference 2218 (54th ed. 2000).
4Error! Main Document Only.Naprosyn, or Naproxyn, “is a nonsteroidal

anti-inflammatory drug with analgesic and antipyretic properties”
used, inter alia, for the relief of mild to moderate pain.
Physician's Desk Reference 2458 (52nd ed. 1998).
5Error! Main Document Only.Vicodin is a class three narcotic used

“for the relief of moderate to moderately severe pain.” Physician's
Desk Reference 1366-67 (52nd ed. 1998).

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for generalized weakness, but left before he received any
treatment (Tr. 729-30).
Records from Dekalb County Jail, dated June 3, 2013,
indicate that Ponquinette carjacked an ambulance, with two
people aboard, from Emory Hospital and was involved in a high
speed car chase; he admitted to a history of using
Methamphetamine and indicated that he thought he had been
drugged in connection with this incident (Tr. 425-60).
Following his arrest, Plaintiff appeared stable and was
receptive to counseling that he needed to address his substance
abuse issues.

Four days later, he was calm, cooperative, and

euthymic with organized and linear thinking; Ponquinette was on
no psychiatric medications and was moved from the mental health
evaluation unit to general population.
On December 4, Dr. Piyush C. Patel, with the Fulton County
Health Department, performed a psychiatric evaluation of
Plaintiff who reported crystal meth on a regular basis for the
prior four years; he also had a history of amphetamine and
marijuana abuse, though he had been sober for four months (Tr.
504-05; see generally Tr. 461-508).

On examination, Ponquinette

was oriented in four spheres; thought process was linear,
logical, coherent, and goal-directed.

He appeared to be of

average intelligence with good memory and fair concentration; he
had good insight and judgment.

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Patel’s diagnosis was as

follows:

amphetamine dependence, in remission; cannabis abuse

in remission; major depressive disorder, recurrent; history of
psychotic episode due to amphetamine intoxication; rule out
Bipolar disorder; and rule out psychotic disorder.

Abilify6 was

prescribed.
On December 16, 2013, Charles Stephen Hamby, Ph.D.
performed a psychological evaluation of Ponquinette who
complained of concentration problems (Tr. 510-16).

Plaintiff

was oriented in four spheres, but appeared somewhat discouraged
and sad; mood was subdued and affect was constricted.

Attention

span and concentration were good; thought processes were normal
with no evidence of obvious impairment.

Ponquinette’s memory

was good; insight and judgment were considered average.

He

stated that he had been depressed for many years and that his
energy and motivation tended to be poor; he had very little
hope.

Plaintiff stated that he thought car horns were telling

him to go in a certain direction; he thought people were out to
get him.

Hamby’s diagnosis was schizoaffective disorder and

polysubstance dependence; it was his opinion that Ponquinette’s
IQ was in the low-average range.

Plaintiff’s activities of

daily living appeared reasonable for a homeless individual.
Hamby volunteered the following limitations:

6Abilify is a psychotropic drug used in the treatment of

schizophrenia. Error! Main Document Only.Physician's Desk Reference
872-74 (62nd ed. 2008).

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The claimant would be able to
understand, remember and carry out simple
instructions although his pace and
persistence would be expected to be somewhat
limited. Also, some disruption in this
ability would be expected as a result of his
reported psychotic symptoms. He would be
able to sustain his attention in order to
complete simple tasks although again, some
disruption in this ability would be
expected. The claimant would have moderate
difficulty relating to supervisors and
coworkers, primarily as a result of his
reported suspiciousness and paranoia. The
claimant would be at mild to moderate risk
for psychiatric decompensation under
stressful work conditions.
The claimant’s mental condition would
be expected to possibly improve if he does
in fact follow through in receiving mental
health treatment and taking appropriate
psychotropic medication.
(Tr. 515).
On January 12, 2014, Ponquinette went to Grady Hospital,
complaining of chest pain for two days, with no radiating
symptoms (Tr. 608-17).

An ECG indicated left ventricular

hypertrophy.
On February 24, Plaintiff went to Piedmont Healthcare for
moderate left foot pain caused by walking without shoes;
blisters and callouses were noted and treated (Tr. 698-704).
On March 6, Plaintiff went to Grady Hospital for right foot
pain from walking in shoes that did not fit; he also had right
eye drainage, and a cough (Tr. 618-27).

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Ponquinette was treated

and discharged.

Records from Georgia Department of Corrections, dated May
20, 2014 through October 23, 2014, reveal treatment for various
physical ailments and medication prescriptions (Tr. 731-40).
On November 6, Plaintiff went to the Mobile County Health
Department to establish medical treatment after having recently
moved to Mobile (Tr. 641-50).
On November 11, Plaintiff was treated at Grady Hospital for
a cough, fatigue, and red, itchy eyes (Tr. 627-38).
On November 17, Ponquinette visited Fulton County Health
Department to refill his Abilify prescription (Tr. 651).
This concludes the Court’s summary of the record evidence.
In bringing this action, Ponquinette asserts that the RFC
determination is not supported by substantial evidence (Doc.
22).

More specifically, Plaintiff asserts that the ALJ did not

properly consider the findings of Psychologist Hamby and did not
pose proper hypotheticals to the VE.
The Court notes that “[t]he RFC assessment is a functionby-function assessment based upon all of the relevant evidence
of an individual’s ability to do work-related activities.”
Social Security Ruling 96-8p, Titles II and XVI:

Assessing

Residual Functional Capacity in Initial Claims, 1996 WL 374184,
*3.

The ALJ is responsible for determining a claimant’s RFC.

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20 C.F.R. § 404.1546 (2016).

That decision cannot be based on

“sit and squirm” jurisprudence.
513, 518 (11th Cir. 1984).

Wilson v. Heckler, 734 F.2d

However, the Court also notes that

the social security regulations state that Plaintiff is
responsible for providing evidence from which the ALJ can make
an RFC determination.

20 C.F.R. § 404.1545(a)(3).

Plaintiff has taken issue with the following portion of the
ALJ’s RFC determination:
The claimant can perform simple routine
tasks involving no more than simple, short
instructions and simple work-related
decisions with few work place changes. The
claimant can perform work that involves no
interaction with the public. He can
tolerate occasional and non-transactional
interaction with co-workers, and occasional
interaction with supervisors. The claimant
is unable to work in close proximity to
others. He can sustain attention for twohour periods with customary breaks. He
would have one unplanned absence per month.
(Tr. 17).

Ponquinette objects to these findings because

Psychologist Hamby indicated that his pace and persistence would
be “somewhat limited” and would likely even be disrupted because
of his psychosis (Doc. 22, p. 14; cf. Tr. 515).
The Court notes that the ALJ gave “significant weight to
Dr. Hamby’s opinions [] because they are generally consistent
with the examination findings and treatment evidence” (Tr. 22).
Before reaching that decision, however, the ALJ discounted

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Plaintiff’s testimony concerning his limitations as noncredible, a finding not challenged in this action (Tr. 22).
Furthermore, the ALJ noted that Ponquinette’s hospitalizations
and treatment periods were “sparse and sporadic,” signifying his
ability to manage his symptoms on a daily basis (Tr. 22).
Finally, the ALJ noted that Plaintiff, by his own testimony,
indicated that he responded well to his medications; the problem
there, though, was the inconsistency with his following the
prescribed regimen (Tr. 22).
The Court finds that the ALJ’s determination regarding
Ponquinette’s RFC is supported by substantial evidence.

In

addition to the reasons enunciated, the Court would further
point out that the Court record is devoid of medical evidence of
Plaintiff’s difficulties with his mental impairment following
Hamby’s examination as the evidence pertains only to various
physical ailments.
Ponquinette has also asserted that the ALJ’s hypothetical
questions to the Vocational Expert did not accurately reflect
the findings made by Hamby (Doc. 22, pp. 17-19).

The Eleventh

Circuit Court of Appeals has held that an ALJ's failure to
include severe impairments suffered by a claimant in a
hypothetical question to a vocational expert to be reversible
error where the ALJ relied on that expert's testimony in
reaching a disability decision.

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Pendley v. Heckler, 767 F.2d

1561 (11th Cir. 1985).
The Court notes that Plaintiff’s argument is a variation of
the same argument presented earlier, extended to the ALJ’s
hypothetical questions to the vocational expert.

The Court has

already found that the ALJ’s RFC determination was supported by
substantial evidence.

As such, Ponquinette’s claim here gains

no new strength.
Plaintiff has raised a single claim, with two variations of
it, in bringing this action.

The claim is without merit as the

ALJ’s determination is supported by substantial evidence.

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 9th day of August, 2016.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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