Smith v. Colvin
MEMORANDUM OPINION AND ORDER that the decision of the Commissioner be AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Katherine P. Nelson on 5/19/2017. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JOYCE A. H. SMITH,
NANCY A. BERRYHILL1,
Social Security Commissioner
) CIVIL ACTION NO. 16-535-N
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g) Plaintiff, Joyce Smith. (“Smith”
or “Plaintiff”) seeks judicial review of an adverse social security ruling
denying a period of disability, disability insurance benefits, and supplemental
security income. (Docs. 1, 13). With the consent of the parties, the Court has
designated the undersigned Magistrate Judge to conduct all proceedings and
order the entry of judgment in this civil action, in accordance with 28 U.S.C. §
636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See
Docs. 18, 19). Oral argument was heard on Thursday, May 11, 2017. 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.
Nancy A. Berryhill has replaced Carolyn Colvin and is now the acting Social Security
Plaintiff protectively applied for a period of disability and disability
insurance benefits on December 5, 2013. (Doc. 1 at 2; Doc. 13 at 1; Tr. at 16,
272-73). Plaintiff also protectively filed an application for supplemental
security income on July 3, 2014, which Plaintiff states was escalated. (Doc.
13 at 1; Tr. 279-85).2 In both applications, Plaintiff asserted a disability
onset date of July 7, 2012. (Doc. 13 at 1; Tr. at 272-73, 279-85).
claims were denied on March 6, 2014. (Doc. 13 at 1; Tr. at 184-89). Plaintiff
attended a hearing before an Administrative Law Judge (“ALJ”) on May 14,
2015, and the ALJ rendered an unfavorable decision on June 22, 2015. (Doc.
13 at 1; Tr. at 13-24, 32-50).
At the time of the administrative hearing, Plaintiff was sixty one years
old with a high school diploma3, and previous work history as a phlebotomist
and caregiver. (Doc. 13; Fact Sheet). Plaintiff alleges she is disabled due to
On June 22, 2015, an ALJ denied benefits after
impairment. (Tr. at 17). Plaintiff requested review of the hearing decision,
but the Appeals Council denied the request on September 28, 2016. (Tr. at 17).
Complaint, the ALJ’s decision, and Defendant’s brief additionally cite to an
application for supplemental security income filed on May 1, 2014. (Doc. 1 at 2; Tr. at 16;
Doc. 15 at 1). The date of filing has no impact on the analysis herein.
3 Plaintiff testified at the hearing that she only attended school until the age of fourteen. (Tr.
Plaintiff claims that the ALJ committed reversible error in failing to
find that Plaintiff suffers from severe impairment of depression. (Doc. 13,
generally). Defendant has responded to—and denies—these claims. (Doc. 15,
STANDARD OF REVIEW
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on
proper legal standards. Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). However, the
Court “ ‘may not decide the facts anew, reweigh the evidence, or substitute
our judgment for that of the [Commissioner].’ ” Winschel, 631 F.3d at 1178
(quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)
(alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983))). “ ‘Even if the evidence preponderates against the
[Commissioner]’s factual findings, we must affirm if the decision reached is
supported by substantial evidence.’ ”
Ingram, 496 F.3d at 1260 (quoting
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The court] must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial
evidence[.]” Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted).
See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam)
(“We are neither to conduct a de novo proceeding, nor to rubber stamp the
administrative decisions that come before us. Rather, our function is to
ensure that the decision was based on a reasonable and consistently applied
standard, and was carefully considered in light of all the relevant facts.”). “In
determining whether substantial evidence exists, [a court] must…tak[e] into
account evidence favorable as well as unfavorable to the [Commissioner’s]
decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Although the “claimant bears the burden of demonstrating the
inability to return to [his or] her past relevant work, the Commissioner of
Social Security has an obligation to develop a full and fair record.” Shnorr v.
Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established that the
ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently,
he is responsible for producing evidence in support of his claim.” (citations
“This is an onerous task, as the ALJ must scrupulously and
conscientiously probe into, inquire of, and explore for all relevant facts. In
determining whether a claimant is disabled, the ALJ must consider the
evidence as a whole.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267
(11th Cir. 2015) (per curiam) (citation and quotation omitted).
Where, as here, the ALJ denied benefits and the Appeals Council
denied review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the
[Appeals Council] has denied review, [the Court] will look only to the
evidence actually presented to the ALJ in determining whether the ALJ’s
decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320,
1323 (11th Cir. 1998).
Plaintiff asserts that the ALJ erred by not finding her impairment of
depression to be severe.
(Doc. 13). Defendant contends the ALJ’s findings
were based on substantial evidence and were not erroneous.
After determining that Plaintiff had not been gainfully employed
during the relevant time period, the ALJ found that “[t]here are no medical
signs or laboratory findings to substantiate the existence of a medically
determinable impairment.” (Tr. at 18) (citations omitted). In support of her
argument that the ALJ erred in reaching his finding, Plaintiff points to
multiple treatment notes for, among other things, depression from 2012 to
More specifically, Plaintiff contends the following treatment notes
establish that Plaintiff’s depression was severe:
February 3, 2014- Plaintiff was noted as having increased
appetite, on-going passive suicidal ideation, and sever feelings of
depression. On this visit, Plaintiff presented as very depressed
with slowed-down speech movements, her mood was sad, and
her memory and concentration were noted as being impaired.
(Tr. at 591-92).
February 26, 2014- Plaintiff underwent a consultative exam
wherein the examiner, Dr. Formwalt, stated her insight,
understanding of herself, and judgment was poor. (Tr. at 595).
April 21, 2014- Plaintiff presented with a blunted affect, poor
appetite, poor sleep, suicidal thoughts, poor insight, poor
judgment, and mild anxiety. (Tr. at 616).
May 5, 2014- Plaintiff was noted as having passive suicidal
thoughts with auditory and visual hallucinations, impaired
memory and concentration, poor insight, poor judgment, and
moderate anxiety. (Tr. at 612-13).
June 4, 2014- Plaintiff was assessed as having irritable and
angry mood, irritable affect and mild anxiety. (Tr. at 611).
July 2, 2014- Plaintiff was found to have a depressed affect,
sad/depressed mood, auditory and visual hallucinations.
Plaintiff was noted as being positive for suicidal ideation and
depressive symptoms and Plaintiff’s affect was noted as being
depressed and restricted. (Tr. at 629-30).
October 21, 2014- Plaintiff was noted to have a flat affect.
Suicidal thoughts, auditory and visual hallucinations, impaired
memory and concentration, and mild anxiety. (Tr. at 623).
December 5, 2012- Plaintiff was diagnosed with hypertension
and insomnia. (Tr. 574).
November 4, 2014- Plaintiff was diagnosed with atypical
psychosis, dysthymic disorder, benign essential hypertension,
and arthropathy. X-rays revealed mild degenerative change and
right lateral curvature of the mid-thoracic spine at the edge of
the field-of view. (Tr. at 631).
February 26, 2015- Plaintiff was noted as having psychomotor
retardation, resistant cooperation, depressed and restricted
affect, worried/anxious and sad/depressed mood, visual
hallucinations, and poor insight. (Tr. at 640).
March 26, 2015- Plaintiff was diagnosed with benign essential
hypertension, hypercholesterolemia, and arthropathy. (Tr. at
(Doc. 13 at 3-4).
Defendant asserts that the while Plaintiff “offers an
alternative interpretation of the evidence and posits that it established
severe depression […] Plaintiff’s alternative interpretation, by itself, does not
[and] cannot invalidate the ALJ’s findings or the substantial evidence
supporting it.” (Doc. 15 at 6). To that end, Defendant points to the ALJ’s
proper reliance on the consultative exam of Dr. Formwalt of February 26,
2014, wherein after performing an exam of Plaintiff and reviewing her
medical records, Dr. Formwalt opined that Plaintiff was seen as
“intentionally malingering”. (Doc. 15 at 6; Tr. at 593-95). Defendant also
points out that over the “relevant period of time, no physician or psychologist
opined that Plaintiff had any persistent functional limitations at all.” (Doc.
15 at 5). Defendant also asserts that the ALJ’s determination was not in
error because multiple medical records show that Plaintiff was non-compliant
with her mental health medications, despite her complaints of disabling
symptoms. (Doc. 15 at 5; Tr. at 612, 640).
The claimant bears the burden of showing that she has a severe
impairment or combination of impairments that may qualify as a disability.
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.1986). While that burden
is “mild,” id., proof of the mere existence of impairments does not prove the
extent to which they limit a claimant's ability to work. McCruter v. Bowen,
791 F.2d 1544, 1547 (11th Cir.1986). "An impairment can be considered as
not severe only if it is a slight abnormality which has such a minimal effect
on the individual that it would not be expected to interfere with the
individual's ability to work, irrespective of age, education, or work
experience. Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); See also 20
C.F.R. § 404.1521(a) (“An impairment or combination of impairments is not
severe if it does not significantly limit your physical or mental ability to do
basic work activities”); McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.
1986) ("The 'severity' of a medically ascertained disability must be measured
in terms of its effect upon ability to work, and not simply in terms of
deviation from purely medical standards of bodily perfection or normality");
and Social Security Ruling 96-3p (“evidence about the functionally limiting
effects of an individual’s impairment(s) must be evaluated in order to assess
the effect of the impairment(s) on the individual’s ability to do basic work
In reaching his determination, the ALJ stated he considered Plaintiff’s
testimony at the hearing that she has no energy, no money to pay for
medication, owes money to Alta Pointe, does not know how long she can
stand walk, sit, or lift, she can climb a few steps and reach overhead
sometimes, and does not take her medications, as she should. (Tr. at 19).
The ALJ also considered the medical evidence which showed that Plaintiff
had presented to various doctors for treatment of various complaints and that
she was treated with medications that appeared to control her complaints,
but that there was an issue with non-compliance. (Id.) The ALJ further
stated as follows:
The Administrative Law Judge considered the records from Alta
Pointe where claimant received sporadic treatment for her alleged
depression. Treatment notes indicate that claimant stated she was
frustrated because she could not get government assistance even
though she had been in the workplace for 30 years. She continued to
vent her frustration about people that never work but get benefits.
She did requests the therapist to write down the dates she attended
therapy, because her attorney needed to know the dates she came to
appointments. Her therapist stated the claimant would need to keep
her own records if need be. The evidence reveals the claimant became
even more irritated and left. The evidence reveals the claimant was
discharged from the program on occasion. On May 5, 2014, the
claimant was noted tot [sic] seem overly sedated that day. The
therapist noted she was noncompliant with medications. On October
21, 2014, the therapist again noted the claimant seemed overly sedated
(Exhibits B-7F, B-8F, and B-10F).
The Administrative Law Judge assigns substantial weight to the
report from Dr. Formwalt, Psy.D. who evaluated the claimant on
February 26, 2014 at the request of the Social Security Administration.
Dr. Formwalt noted the claimant acted as if she were responding to
some internal stimuli. He noted those behaviors were typically
observed when he was asking a question. He noted the claimant made
sounds to indicate she was crying but had no visible tears emerge. He
noted she was unable to subtract, count backwards, work arithmetic
problems or spell simple words. The claimant denied knowing what
she did the day before the evaluation. Dr. Formwalt found the
claimant appeared to be feigning psychotic symptoms.
She acted as if she was experiencing visual hallucination and
acted confused when asked simple questions. He found evidence of
intentionally malingering. He noted that when she was told the
evaluation was over and she could leave, she promptly arose from the
chair, gathered her belongings and appeared well oriented as she
walked down the hallway and into the waiting room (Exhibit B-5F).
The Administrative Law Judge recognizes that the claimant has
complaints of significant physical and mental problems, but he finds it
extremely significant that she has not submitted any medical evidence
in support of her claim. He notes that the records he reviewed clearly
indicate her symptoms are controlled as long as she is compliant. He
notes that on more than one occasion, notation has been made about
her noncompliance. The Administrative Law Judge notes that the
claimant was discharged from Altapointe [sic] several times due to
noncompliance. The evidence clearly indicated that claimant has
avenues to get treatment for her alleged complaints, but she does not
avail herself to those opportunities.
Accordingly, there are no medical signs or laboratory findings to
substantiate the existence of a medically determinable impairment.
(Tr. at 19-20).
Plaintiff does not contend that the ALJ improperly relied on the
medical opinion of Dr. Formwalt and does not dispute the various medical
records relied on by the ALJ which showed Plaintiff’s non-compliance with
her medication. Moreover, the medical evidence of record does not contain, as
pointed out by the ALJ, any “medical signs or laboratory findings” to
substantiate that Plaintiff’s depression was a “medically determinable
(Tr. at 20).
While the medical record as a whole shows a
history of depressive symptoms, the majority of the noted symptoms have
been subjective complaints by Plaintiff. Moreover, Plaintiff has not met her
burden of showing that her alleged depression would interfere with her
ability to work.
The ALJ properly articulated his reasons for not finding Plaintiff’s
depression to be severe impairment, that is, he considered her testimony, the
medical records which failed to establish a medically determinable
impairment, and the opinion of a consultative examiner who opined Plaintiff
was intentionally malingering. (Tr. at 19-20). As a result, the undersigned
finds that despite the medical records, which showed Plaintiff’s complaints of
depression, there was substantial evidence on which the ALJ relied in
determining that Plaintiff’s depression was not severe. Accordingly, the ALJ
did not err.
Plaintiff has raised one claim in bringing this action and the same is
without merit. Upon consideration of the entire record, the Court finds "such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). 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
DISMMISSED. Judgment will be entered by separate Order.
DONE this 19th day of May 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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