Sellers v. Colvin
Order re: 1 Complaint filed by Sandra L. Sellers stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/11/17. Copies to counsel (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SANDRA L. SELLERS,
* CIVIL ACTION NO. 16-000165-B
Acting Commissioner of Social
seeks judicial review of a final decision of the Commissioner of
Social Security denying her claim for a period of disability,
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 1381, et seq.
proceedings in this case.
On May 25, 2017, the parties
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.
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.
of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
Plaintiff protectively filed her application for a period
of disability, disability insurance benefits, and supplemental
security income on April 29, 2013, alleging disability beginning
December 12, 2012, based on bipolar disorder, PTSD, high blood
pressure, diabetes, high cholesterol, depression, and anxiety.
(Doc. 13-2 at 6, 10).
Plaintiff’s application was denied and
upon timely request, she was granted an administrative hearing
attended the hearing with her counsel and provided testimony
related to her claims.
A vocational expert (“VE”) also
appeared at the hearing and provided testimony.
decision finding that Plaintiff is not disabled.
(Doc. 12-2 at
(Doc. 12-2 at
The Appeals Council denied Plaintiff’s request for review
on March 30, 2016.
(Doc. 12-2 at 2).
Therefore, the ALJ’s
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. Because the transcript is divided into separate
documents, the Court’s citations include the appropriate CM/ECF
decision dated November 7, 2014, became the final decision of
timely filed the present civil action.
was conducted on June 1, 2017 (Doc. 22), and the parties agree
that this case is now ripe for judicial review and is properly
Issue on Appeal
Whether substantial evidence supports
RFC for a range of medium work with
III. Factual Background
Plaintiff was born on February 2, 1957, and was fifty-seven
years of age at the time of her administrative hearing on August
(Doc. 12-2 at 34, 39; Doc. 13-2 at 6).
graduated from high school.
(Doc. 12-2 at 39).
switchboard operator at Spring Hill Memorial Hospital.
12-2 at 40; Doc. 13-1 at 15-17; Doc. 13-2 at 11, 46).
administrative hearing, Plaintiff testified that she quit work
because she felt she was being bullied at her workplace, and it
caused her to be depressed and manic.
(Doc. 12-2 at 40).
testified that she cannot work now due to her “bipolar disease,”
(Doc. 12-2 at 41, 49).
Plaintiff also testified
counseling at Alta Pointe, both of which have helped.
2 at 41, 45).
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).
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.
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
affirmed if they are based upon substantial evidence.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
substantial evidence is defined as “more than a scintilla, but
At the administrative hearing, Plaintiff’s counsel advised that
Plaintiff’s claim is based solely on her mental impairments.
(Doc. 12-2 at 38).
Therefore, the Court limits its discussion
to those impairments. (Id.).
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
evidence as a reasonable person would accept as adequate to
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
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).
Statutory And Regulatory Framework
An individual who applies for Social Security disability
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
determining if a claimant has proven his disability.
§§ 404.1520, 416.920.
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
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
In evaluating whether the claimant has met this burden,
objective medical facts and clinical findings; (2) diagnoses of
claimant meets this burden, it becomes the Commissioner’s burden
to prove at the fifth step that the claimant is capable of
engaging in another kind of substantial gainful employment which
exists in significant numbers in the national economy, given the
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
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)).
A. Substantial evidence supports the ALJ’s
RFC for a range of medium work with the
Plaintiff argues that the ALJ’s RFC for a range of medium
work is not supported by substantial evidence because the ALJ
failed to assign appropriate weight to the opinion of consulting
psychologist, Dr. Pamela Starkey, Psy. D., that Plaintiff would
have marked restrictions in responding appropriately to usual
work situations and to changes in routine work setting.
14 at 1-2).
Having reviewed the record at length, the Court
finds that Plaintiff’s claim is without merit.
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
See 20 C.F.R. §
Determinations of a claimant’s residual functional
capacity are reserved for the ALJ, and the assessment is to be
based upon all the relevant evidence of a claimant’s remaining
ability to work despite his or her impairments, and must be
supported by substantial evidence.
See Beech v. Apfel, 100 F.
404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997)); Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10,
2012 WL 997222, *4 (M.D. Ala. March 23, 2012).
Once the ALJ has
decision is not supported by substantial evidence.
See Flynn v.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).
failed to meet her burden in this case.
(Doc. 12-2 at 23).
Even so, the ALJ found
that Plaintiff has the RFC to perform a range of medium work
dangerous machinery or dangerous heights, has unlimited ability
general public, co-workers, and supervisors, and is limited to
work that has minimal changes in the work setting.
Based upon the testimony of the vocational expert, the
ALJ concluded that Plaintiff is unable to perform her past work
as a switchboard operator (sedentary and semi-skilled); however,
she could perform the jobs of laundry worker, dishwasher, and
recycler, all medium and unskilled.
(Doc. 12-2 at 28, 51-52).
As stated, Plaintiff argues that the RFC is not based on
substantial evidence because the ALJ discredited Dr. Starkey’s
appropriately to usual work situations and to changes in routine
(Doc. 14 at 1-2).
The Court disagrees.
As part of the disability determination process, the ALJ is
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).
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
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
consultants because they ‘are highly qualified physicians and
psychologists who are also experts in Social Security disability
Milner v. Barnhart,
275 Fed. Appx. 947, 948
Id. (citing Edwards v. Sullivan, 937 F.2d
580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
unsupported by the evidence of record.
Phillips v. Barnhart,
357 F.3d 1232, 1240 (11th Cir. 2004).
“Good cause may also
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.”
Sryock v. Heckler,
omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
opinion if the evidence supports a contrary finding.).
considered Plaintiff’s treatment records, which included records
from Alta Pointe in December 2012, showing that she was treated
history of bipolar disorder and post traumatic stress disorder
hospitalizations and participation in a partial hospitalization
program in January 2012.
(Doc. 13-3 at 48, 51).
treatment notes reflect that she reported sadness over a recent
job loss but stated that her medications were working “ok” and
that Seroquel was helping her sleep.
(Doc. 13-3 at 48).
Sadler noted that Plaintiff’s ability to care for herself was
“good,” and on mental status examination, he noted that
general appearance was “appropriate” and that her behavior was
“normal and cooperative,” although she reported mood swings and
had a sad affect.
(Doc. 13-3 at 49).
In addition, Dr. Sadler
thoughts, no anxiety, unimpaired memory, normal orientation and
perceptions, and fair insight and judgment, although she had
impaired concentration and thoughts of persecution.
Dr. Sadler diagnosed Plaintiff with bipolar disorder
and assigned a Global Assessment of Functioning (“GAF”) of 60. 5
A GAF score of 51-60 indicates that “the person has moderate
symptoms (e.g., flat affect and circumstantial speech or
occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning (e.g., few friends or
(Doc. 13-3 at 50-51).
Dr. Sadler noted that Plaintiff was in
the midst of a manic-depressive episode due to recently losing
her job but was “calm, cooperative, and [did] not appear to be
in imminent danger.”
(Doc. 13-3 at 51).
Dr. Sadler assigned no
reported that she was “doing well” on her current medications,
that she had no problems with sleeping or eating, and that she
had no suicidal ideation.
(Doc. 13-3 at 46).
Her mental status
examination findings included appropriate appearance, normal and
unimpaired speech, good appetite and sleep, unimpaired memory
and concentration, logical thoughts, good insight and judgment,
and moderate anxiety.
(Doc. 13-3 at 46-47).
conflicts with peers or co-workers).”
Benison v. Berryhill,
2017 U.S. Dist. LEXIS 119690 *19-20, 2017 WL 3262128, *6 (S.D.
Ala. July 31, 2017). Plaintiff is correct that the latest
edition of the Diagnostic and Statistical Manual of Mental
Disorders, “DSM-5,” abandoned the GAF scale as a measurement
See Hartung v. Colvin, 2016 U.S. Dist. LEXIS 65855, *19
n.2, 2016 WL 2910096, *6 n.2 (E.D. Pa. May 19, 2016). For that
reason, the Social Security Administration now permits ALJs to
use GAF ratings as opinion evidence when assessing disability
claims involving mental disorders but instructed that “a ‘GAF
score is never dispositive of impairment severity,’ and an ALJ
should not ‘give controlling weight to a GAF from a treating
source unless it is well supported and not inconsistent with
other evidence.’” Id.; accord Thomas v. Colvin, 2016 U.S. Dist.
LEXIS 133255 *27 n.15, 2016 WL 5417202, *8 n.15 (S.D. Ala. Sept.
For the reasons discussed herein, the Court finds
that Dr. Sadler’s GAF score of 60, indicating moderate symptoms,
is consistent with the substantial evidence in this case.
losing her job and fear of being around others, but, overall,
she was doing well on her medication; she had no side effects
and no hospitalizations; she was “feeling pretty good;” she had
no depression and no racing or disorganized thoughts; and her
bipolar disorder was stabilized with medication.
68, 70, 72, 74).
(Doc. 13-3 at
While Plaintiff’s treatment notes in October
2013 reflect that she was experiencing confusion and sadness and
(Doc. 13-3 at 64-67).
In November 2013, Dr. Marianne Saitz, D.O., at Alta Pointe
about her boyfriend’s death but added that her medication was
helping and that she was sleeping well.
(Doc. 13-3 at 59-61).
In December 2013, Plaintiff’s treatment notes
reflect that she was “much improved,” that she had a bright
smile with less anxiety and fear, and that she had normal memory
(Doc. 13-3 at 119-20, 123-24).
From February through June 2014, Plaintiff’s mental status
reported that she was doing better, although in April 2014 she
reported paranoid feelings and difficulty being around people.
(Doc. 13-3 at 104-09, 117-18).
Notably, the previous month, in
stated that she enjoyed being around others.
(Doc. 13-3 at
outpatient programs for bipolar disorder, although none in the
previous eighteen months.
(Doc. 13-3 at 91-92).
thoughts and difficulty sleeping.
(Doc. 13-3 at 92).
oriented and able to sustain focus and attention; her speech was
clear and coherent; her thinking was organized; and her insight
(Doc. 13-3 at 92-95).
Dr. Starkey found that
mental tasks, with adequate recent and remote memory functions,
mildly impaired fund of knowledge, marginally adequate reasoning
skills, and low average intellectual functioning.
(Doc. 13-3 at
Dr. Starkey diagnosed Plaintiff with bipolar disorder
and unspecified anxiety disorder, mild.
(Doc. 13-3 at 95).
Starkey opined that Plaintiff had moderate to marked limitations
in her ability to understand and remember simple and complex
instructions, carry out complex instructions, make judgments on
complex work-related decisions, and interact appropriately with
the public, with supervisors, and coworkers, but that she had
marked limitations in her ability to respond appropriately to
usual work situations and to changes in a routine work setting.
(Doc. 13-3 at 88-89).
Dr. Starkey also opined that Plaintiff’s
prognosis for a favorable response to treatment for psychiatric
problems within the next six to twelve months was “guarded.”
(Doc. 13-3 at 95).
As Plaintiff acknowledges, the ALJ gave significant weight
to the vast majority of Dr. Starkey’s opinions.
(Doc. 12-2 at
Starkey’s opinion that Plaintiff had marked limitations in her
ability to respond appropriately to usual work situations and to
opinion was inconsistent with the substantial medical evidence
in the case.6
(Doc. 12-2 at 27; Doc. 13-3 at 89).
the ALJ noted that Dr. Starkey’s opinion was inconsistent with
As discussed herein, the ALJ’s rejection of Dr. Starkey’s
opinions that Plaintiff has marked limitations in her ability to
respond appropriately to usual work situations and to changes in
a routine work setting is the only basis for Plaintiff’s
challenge to the RFC. (Doc. 14 at 1-2).
indicated no more than moderate symptoms; it was inconsistent
medication; and it was inconsistent with Plaintiff’s treatment
notes which regularly showed intact memory and concentration,
general stability, and no need for recent hospitalization or
(Doc. 12-2 at 27-28; Doc. 13-3 at 46-51, 60,
68-74, 104-05, 109, 114, 117-20, 123-24).
inconsistent with Plaintiff’s activities of daily living, which
included living alone, handling her own personal care needs,
laundry, going to restaurants, visiting residents at a senior
center, texting her daughter-in-law, spending time with her son,
watching television, handling her own finances, and walking her
(Doc. 12-2 at 27-28; Doc. 13-2 at 17-20; Doc. 13-3 at 95,
While there is no question in this case that Plaintiff has
bipolar disorder and that she experiences fluctuating mood and
behavior as a result of that condition, the substantial evidence
detailed above supports the ALJ’s findings that her condition
has improved significantly with medication.
Indeed, none of
severity of Dr. Starkey’s opinions regarding Plaintiff’s marked
limitations is inconsistent with the substantial evidence in the
case, the ALJ had good cause to discredit those opinions.
The Court further finds that substantial evidence supports
restrictions, namely, the restrictions to work involving only
short and simple instructions, occasional interaction with the
general public, co-workers, and supervisors, and minimal changes
in the work setting.
Based on the evidence detailed above,
Indeed, Plaintiff has failed to show that any
limitations caused by her impairments exceed the RFC and are not
Plaintiff’s claim is without merit.
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for a
supplemental security income be AFFIRMED.
As discussed, Plaintiff does not challenge the ALJ’s findings
related to her physical impairments in this case.
DONE this 11th day of September, 2017.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?