Carney v. Berryhill
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge P. Bradley Murray on 3/7/2018. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
STEPHANIE T. CARNEY,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security denying her claim for a period
of disability and disability insurance benefits. The parties have consented to the
exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all
proceedings in this Court. (Docs. 23 & 24 (“In accordance with provisions of 28 U.S.C.
§636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States
magistrate judge conduct any and all proceedings in this case, . . . order the entry of a
final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of
the administrative record, Plaintiff’s brief, and the Commissioner’s brief,1 it is determined
that the Commissioner’s decision denying benefits should be reversed and remanded
for further proceedings not inconsistent with this decision.2
The parties in this case waived oral argument. (Doc. 22;; see also Doc. 25.)
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 23 & 24 (“An appeal from a
judgment entered by a magistrate judge shall be taken directly to the United States court of
I. Procedural Background
Plaintiff filed an application for a period of disability and disability insurance
benefits on December 27, 2013, alleging disability beginning on September 30, 2013.
(See Tr. 124-25.) Carney’s claim was initially denied on March 6, 2014 (Tr. 73) and,
following Plaintiff’s April 3, 2014 request for a hearing before an Administrative Law
Judge (“ALJ”) (see Tr. 82-83), a hearing was conducted before an ALJ on June 17,
2015 (Tr. 37-61). On December 24, 2015, the ALJ issued a decision finding that the
claimant was not disabled and, therefore, not entitled to disability insurance benefits.
(Tr. 21-33.) More specifically, the ALJ proceeded to the fourth step of the five-step
sequential evaluation process and determined that Carney retains the residual
functional capacity to perform a range of light work and her past relevant work as a
caterer helper (Tr. 32;; see also Tr. 30). On February 22, 2016, the Plaintiff appealed the
ALJ’s unfavorable decision to the Appeals Council (Tr. 15);; the Appeals Council denied
Carney’s request for review on December 12, 2016 (Tr. 1-3). Thus, the hearing decision
became the final decision of the Commissioner of Social Security.
Plaintiff alleges disability due obesity, diabetes mellitus (type II), questionable
history of fibromyalgia, questionable history of restless leg syndrome, hypertension,
history of diabetic ketoacidosis, questionable history of acute sinusitis and bronchitis,
and depression. The Administrative Law Judge (ALJ) made the following relevant
appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
The claimant has not engaged in substantial gainful activity
since September 30, 2013, the alleged onset date (20 CFR 404.1571 et
The claimant has the following combinations of impairments that is
severe (20 CFR 404.1520(c)): obesity;; diabetes mellitus type II, controlled
with compliance;; questionable history of fibromyalgia;; questionable history
of restless leg syndrome;; hypertension;; history of diabetic ketoacidosis,
acute;; and questionable history of acute sinusitis and bronchitis.
Individually, these impairments are slight abnormalities that individually do
not cause greater than slight limitation in the claimant’s capacity for work
activity. Therefore[,] they are not severe;; however[,] as noted herein, the
undersigned considered the impairments collectively in assessing the
residual functional capacity.
In application documents[,] the claimant[,] a forty-eight[-]year[-]old female
with a general equivalent diploma (GED)[,] initially alleged her ability to
work is limited by diabetes, diabetic neuropathy, depression, leg pain,
migraines, memory problem, blurred vision, pain in arms, and numbness.
She reported her height as 5’5” and her weight as 171 pounds. She
reported she stopped working on August 5, 2010, because the business
closed;; however, on September 30, 2013, she reported her conditions
became severe enough to keep her from working.
She reported her impairments affect her ability to lift, squat, bend, stand,
reach, walk, kneel, stair climb, see, memorize, complete tasks,
concentrate, understand, follow directions, and use her hands. However,
she reported she can attend to her personal needs independently. She
reported she can prepare meals and perform light cleaning and laundry
duties. She reported she shops in stores and can handle financial
obligations. She reported she enjoys watching television and she spends
time with others. On appeal, she reported her neuropathy has gotten
worse and she now has leg pain, numbness, and migraines. She reported
everything has gotten worse including her depression. She reported this
change took place in 2013.
At the hearing[,] when questioned by the undersigned[,] the claimant
testified she cannot perform any work activity that requires sitting because
she can only sit for minutes at a time due to pain. She testified she has to
stand up, walk around, and sometimes lay down. She testified she uses a
heating pad for pain and cannot sit for hours at a time without severe pain
from neuropathy and fibromyalgia. She testified she takes Neurontin three
times a day, Tramadol for pain, and Celexa for depression and anxiety.
She testified she has not worked since 2010 and she last worked at a dry
When questioned by her representative[,] she testified she receives
treatment at The Clinic PC. She testified she has been diagnosed with
diabetes mellitus II, uncontrolled, peripheral neuropathy, and back pain.
She testified her treating physician referred her to mental health and also
prescribes her depression medication as well as Neurontin and Tramadol.
She testified she cannot function without taking the Neurontin;; however, it
causes dizziness and lightheadedness. She testified the only side effect of
the Tramadol is she cannot operate any vehicle. She testified she takes
the Tramadol every six hours. She testified she has chronic lower back
pain daily and needs assistance with personal hygiene. She testified her
husband provides assistance and her daughter-in-law helps out a lot. She
testified her husband cooks, but she can prepare simple meals.
In regards to her diabetes mellitus type II, controlled with compliance, the
claimant testified she was diagnosed with uncontrolled diabetes mellitus
type II and she has painful neuropathy. The evidence does document a
diagnosis if diabetes mellitus type II;; however, when she presented to
Meridian Medical Associates on December 19, 2013, it was noted her
diabetes had been under good control. Although her examination
indicated decreased pinprick and light touch in a stocking distribution,
reflexes were depressed, but symmetrical, and Romberg’s was slightly
positive for swaying away. It further indicated she had normal gait and her
cranial nerves were intact with 5/5 motor strength. She was assessed with
painful peripheral neuropathy, possible element of restless leg syndrome,
and history of diabetes. She was given a trial of Neurontin and it was
recommended she follow up in a couple of months. The evidence
indicates she returned to Meridian Medical Associates in February 2014
and reported the Neurontin was helping some, but [she] was still having
pain when squatting. Her Neurontin was increased and it was
recommended she follow up in three months.
On March 3, 2014, she returned to The Clinic PC for follow up and
medication refills. It was noted she did not have any verbal complaints and
again her diabetes w[as] documented as controlled. Her physical
examination was unremarkable and dietary modification was
recommended. It was a year later[,] on March 2, 2015, when she returned
to The Clinic PC for medication refills. It was noted she was doing better
and her examination was normal.
Although the claimant has been diagnosed with diabetes mellitus type II,
the evidence documents several instances where her diabetes was
controlled. Her physical examinations have been unremarkable and there
is no evidence of cerebrovascular accidents, renal failure, polydipsia, or
polyuria, generally associated with uncontrolled diabetes mellitus, which
certainly suggests the impairment is well controlled. If the claimant were
to remain compliant with all treatment recommendations, dietary
modifications, exercise, and medications[,] her diabetes would continue to
be controlled. Therefore, the evidence does not show this impairment has
significantly limited or is likely to significantly limit the claimant’s ability to
do basic work activities.
In regards to her questionable history of reckless leg syndrome, the
evidence indicates she presented to The Clinic PC in October 2013 with
fatigue and pain in her legs that hurts when walking up steps. On review of
systems[,] she denied any musculoskeletal problems as well as
neurological problems. Her physical examination was normal with no
deformities, cyanosis, or edema of the extremities. There was no
decreased range of motion in her joints. There was no sensation to pain
and touch and she had normal pinprick. Her deep tendon reflexes were
normal in the upper and lower extremities and her cranial nerves were
normal. At that time[,] she was assessed with fatigue;; however, in
December 2013 she presented to Meridian Medical Associates with pain,
numbness, and tingling in her lower extremities and was diagnosed with
possible element of reckless leg syndrome. The evidence documents
unremarkable examinations with no deformities, cyanosis, or edema of the
extremities. She has normal gait and station as well as normal range of
motion of her joints with no neurological deficits. Furthermore, there is no
follow up treatment for this impairment and the claimant d[id] not mention
this impairment at the hearing. Therefore, the evidence does not show this
impairment has significantly limited or is likely to significantly limit the
claimant’s ability to do basic work activities.
In regards to her questionable history of fibromyalgia[,] the evidence
documents a diagnosis of fibromyalgia;; however, there are no follow up
appointments for this impairment. The evidence does not document any
widespread pain in the joints, muscles, tendons, or nearby soft tissues
associated with fibromyalgia. Nor does the evidence document at least 11
positive tender points found bilaterally both above and below the waist.
Furthermore, there are no objective tests or signs to confirm the severity
of any observable problem of fibromyalgia. Therefore, the evidence does
not document any objective findings for this impairment nor does it show
this impairment has significantly limited or is likely to significantly limit the
claimant’s ability to do basic work activities.
In regards to her hypertension, the claimant did not mention this
impairment at the hearing. She has very limited treatment for this
impairment, yet the evidence documents a diagnosis of hypertension.
However, there are several examinations that have documented her blood
pressure as normal and her heart as having regular rate and rhythm.
Furthermore, there is no evidence she has suffered any renal damage or
cardiovascular accident generally associated with prolonged
uncontrollable hypertension. The undersigned notes the evidence does
not show this impairment has significantly limited or is likely to significantly
limit the claimant’s ability to do basic work activities.
In regards to her history of diabetic ketoacidosis, acute, the evidence
documents [that] she presented to The Clinic PC on March 30, 2015, with
complaints of vomiting, sweating, and fatigue. Her examination indicated
she was well appearing, well-nourished [and] in no distress. She was
oriented times three and her mood and affect was normal. Examination of
her abdomen and extremities w[as] unremarkable;; however, it was noted
since she has [had] ketoacidosis before it was recommended she go to
the emergency room, but she refused. She was encouraged to continue
her current medication[s] and dietary modification[s]. Approximately a
month later[,] on April 26, 2015, she presented to Anderson Regional
Medical Hospital and was admitted for diabetic ketoacidosis. It was noted
she was vomiting and severely dehydrated;; therefore, she was placed in
intensive care and started on normal saline and an insulin drip. Within two
days she was gradually weaned off the insulin drip and became stable
enough to be discharged. She was discharged in stable condition with
instructions to follow up with her treating physician in a week. She
followed up at The Clinic PC on June 10, 2015, and her examination was
unremarkable. She was assessed with fatigue, pain in back, depression,
Although the claimant was hospitalized for the above impairment, the
evidence indicates it was recommended she go to the emergency room
one month prior, yet she refused. She was stable within two days and did
not follow up for almost two months. As stated above[,] her diabetes has
been controlled with medication and if she were to remain compliant with
all treatment recommendations[,] including dietary modifications, exercise,
and medications[,] there is no reason to believe she would have any
further acute diabetic ketoacidosis. In fact, the evidence documents she
was last ketoacidosis in 2000, which clearly suggests her acute diabetic
ketoacidosis is well controlled.
With her questionable history of acute sinusitis and bronchitis, the
evidence documents she presented to The Clinic PC in January 2013 with
complaints of a sore throat, bilateral ear pain, weakness/fatigue, hurting all
over, neck pain, and cough. Her examination indicated her lungs were
clear and her eyes, ears, nose, and throat were normal. She was
assessed with sinusitis, acute[,] and treated with medication . She
returned in October 2013 with a sore throat and again she was diagnosed
with sinusitis, acute. On April 22, 2015, she returned to The Clinic PC
reporting cough and congestion and hurting in her chest at times. She
reported chronic leg pain and headaches. Her physical examination
indicated she was well appearing, well-nourished [and] in no acute
distress. She was oriented times three with normal mood and affect. Her
lungs were clear to auscultation and percussion and her extremities did
not exhibit any deformities, cyanosis, or edema. She was assessed with
acute sinusitis, acute bronchitis, pain in back, and depression. There is
nothing to show the claimant required any medications on a continuous
basis or corticosteroids for this impairment. Furthermore, there is no
indication the claimant’s acute sinusitis and bronchitis caused long-term
complications such as severe shortness of breath, chronic obstructive
pulmonary disease, or respiratory failure.
The claimant’s medically determinable mental impairments of depressive
disorder, not otherwise specified[,] and anxiety, considered singly and in
combination, do not cause more than minimal limitation in the claimant’s
ability to perform basic mental activities and are therefore non-severe.
In making this finding, the undersigned has considered the four broad
functional areas set out in the disability regulations for evaluating mental
disorders and in section 12.00C of the Listing of Impairments. These four
broad functional areas are known as the “paragraph B” criteria.
The first functional area is activities of daily living. In this area, the
claimant has no limitation. The claimant is mentally able to initiate, sustain,
and complete activities such as attending to her personal care, preparing
meals, shopping, driving, managing finances, and [is] independent
direction or supervision.
The next functional area is social functioning. In this area, the claimant
has no limitation. The claimant can communicate clearly, demonstrate
cooperative behaviors, initiate and sustain social contacts and participate
in group activities.
The third functional area is concentration, persistence or pace. In this
area, the claimant has mild limitation. The claimant can certainly sustain
the focused attention and concentration necessary to permit the timely
and appropriate completion of tasks commonly found in routine and
repetitive work settings. However, the record also reveals that the claimant
obtained a GED. Thereafter[,] she performed semiskilled work as a caterer
helper in a family[-]owned business. That business apparently folded. The
record strongly suggests that had the business [not folded] the claimant
would have continued in that business. The record does not allow for a
finding of greater than mild limitation in this domain.
The fourth functional area is episodes of decompensation. In this area, the
claimant has experienced no episodes of decompensation which have
been of extended duration.
Because the claimant’s medically determinable mental impairments cause
no more than “mild” limitations in any of the first three functional areas and
“no” episodes of decompensation which would have been of extended
duration in the fourth area, they are non-severe.
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of
the sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments. Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.
In addition, the evidence documents on February 18, 2014, [the claimant]
attended a consultative examination conducted by Nina Tocci, PhD, at
which time she was diagnosed with depressive disorder, not otherwise
specified[,] and [given a] global assessment functioning score of 60.
During the mental status evaluation, the claimant’s posture and gait was
normal and her motor activity was unremarkable. She spoke without an
impediment and her affect was appropriate, normal, and stable. She
described her mood as “okay/fair”. She was oriented to time, place,
person, and situation and she demonstrated good attention and
concentration. She demonstrated good fund of information and
comprehension and her abstract was intact. She demonstrated thought
content appropriate to mood and circumstances and goal-directed thought
[and] organization. Dr. Tocci noted the claimant appeared to be
functioning within the average range of intellectual ability and she can
make informed personal and financial decisions. Dr. Tocci opined the
claimant has the ability to learn, perform, and complete job tasks, but her
concentration, pace, and persiste[nce] could be distracted and result in
imprecise product  secondary to pain. The undersigned does not concur
with this opinion because it is inconsistent with the evidence as a whole.
On March 5, 2014, Donald Hinton, Ph.D., a State Agency medical
consultant, completed a Psychiatric Review Technique Form assessing
the claimant’s mental impairment. Dr. Hinton opined the claimant has mild
limitation in restriction of activities of daily living, mild limitations in
maintaining social functioning, and moderate limitations in difficulties in
maintaining concentration, persistence or pace. He found no episodes of
decompensation, each of extended duration.
Dr. Hinton also completed a Mental Residual Functional Capacity
Assessment indicating no more than moderate limitations in any areas.
Specifically, Dr. Hinton opined the claimant has the ability to understand,
remember, and carry out many short and simple instructions. He opined
the claimant can attend and concentrate for two-hour periods. He lastly
opined work setting changes should be minimal, gradual, and fully
explained and she may require assistance with goal setting.
On May 7, 2015, she presented to West Alabama Mental Health Center
reporting problems with depression for a long time. After a screening
assessment intake[,] she was assessed with major depression and
recommended [to] return in two weeks. She returned on May 29, 2015, for
individual counseling and it was noted her affect was normal and her
mood was anxious and depressed. She was oriented to person, place,
time, and situation and her motor activity was calm. She reported poor
sleep and fair appetite and it was recommended she return in two weeks.
The evidence does not indicate the claimant followed up for individual
counseling, which clearly suggests her impairment is under control.
On June 12, 2015, the claimant’s therapist completed a Medical Source
Statement (Mental) on behalf of the claimant. She opined the claimant has
marked limitations in her ability to understand and remember short simple
instructions, understand and remember detailed instructions, and carry out
detailed instructions. She opined [claimant] has moderate limitations in her
ability[ies] to carry out short, simple instructions and make judgments on
simple[,] work-related decisions. She also opined the claimant is markedly
limited to interaction with the public, supervisors, and coworkers and
markedly limited [in] responding appropriately to work pressures in a usual
work setting and responding appropriately to changes in a routine work
setting. The undersigned does not concur with this opinion because it is
inconsistent with the evidence as a whole.
Despite the fact[ that] the evidence documents a diagnosis of depression
and the record indicates some treatment[ ], the treatment has been
essentially routine and/or conservative in nature with only two total visits.
Interestingly, her treating physician prescribes her depression medication;;
however, examination[s] of her mental state have been documented as
alert, awake, and oriented times three with normal mood and affect. More
importantly, the evidence documents she has denied any psychiatric
problems. What is more, when admitted for diabetic ketoacidosis[,] her
mental state was absent any depression and anxiety and she was alert
and oriented times three with normal affect. Furthermore, the evidence
does not document any inpatient hospitalizations for this impairment and[,
as stated above[,] she only has two visits with a mental health facility. In
addition, she testified she discontinued prior mental health treatment in
2001, but reported she stopped working in 2010. The fact she has not
had any treatment for depression in fourteen years, but continued to work,
clearly suggests the impairment is under control and would not prevent
The record also mentions migraines;; memory problems;; pain and
numb[ness] in arms;; blurred vision;; and back problems. Despite multiple
subsequent physical examinations and assessments, there is no
additional mention or confirmation for the impairments. Although the
evidence documents reported back problems throughout the record[,] 
there are no laboratory findings to suggest the severity of the impairment.
In fact, the evidence documents she had normal gait and station with full
range of motion of all joints. The undersigned believes these conditions
are not medically determin[able] and do not affect the claimant’s ability to
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b)
except she can stand and/or walk at least two hours without
interruption and six hours over the course of an eight-hour workday.
She can sit at least two hours without interruption and a total of at
least six hours over the course of an eight-hour workday. She cannot
climb ropes, poles or scaffolds. She can occasionally climb ladders,
ramps, and stairs. She can frequently balance, stoop, kneel and
crouch. She can occasionally crawl. She can frequently use her
lower extremities for pushing, pulling and the operation of foot
controls. She can occasionally work in humidity, wetness and
extreme temperatures. The claimant can occasionally [be exposed
to] dusts, gases, odors and fumes. The claimant can occasionally
work in poorly ventilated areas. The claimant cannot work at
unprotected heights. The claimant can occasionally work while
exposed to operating hazardous machinery. The claimant can
frequently work while exposed to vibration. The claimant can
occasionally operate motorized vehicles.
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based
on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The
undersigned has also considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)—i.e.,
an impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques—that could reasonably be expected to
produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity,
persistence, and limiting effects of the claimant’s symptoms to determine
the extent to which they limit the claimant’s functioning. For this purpose,
whenever statements about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, the undersigned must make a finding on the
credibility of the statements based on a consideration of the entire case
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms;; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons explained in this
With regards to the claimant’s physical limitations, no treating physician
has offered an opinion sufficient upon which to assess the claimant’s
residual functional capacity. However, the undersigned notes that the
above limitations are consistent with and supported by records and reports
obtained from the claimant’s treating physicians and with the evidence as
a whole. Therefore, the undersigned finds that the above residual
functional capacity assessment is supported by objective treatment
evidence, treatment records, and the record as a whole.
In addition, the undersigned gives some weight to the opinion of the State
agency psychological consultant[,] Dr. Robert Hinton. Although the
functional limitations given by Dr. Hinton differ slightly from those in the
residual functional capacity assessment, the undersigned finds Dr.
Hinton’s opinion, indicating the claimant is not disabled based on any
mental impairment, is generally credible and consistent with the medical
evidence of record.
In addition, the undersigned has considered the opinion of Dr. Tocci, the
mental consultative examiner. Dr. Tocci assessed the claimant with
depressive disorder, not otherwise specified[,] and a global assessment
functioning score (GAF) of 60. She opined the claimant has the ability to
learn, perform, and complete job tasks, but her concentration, pace and
persiste[nce] could be distracted and result in imprecise product
secondary to pain. The undersigned notes Dr. Tocci’s opinion and
assessments are inconsistent with records and reports and with the
evidence as a whole. There is no documentation in the record to support
the claimant has a moderate limitation or that her depression is at all
severe. In fact, there are only two mental health visits and no inpatient
mental hospitalizations. Dr. Tocci did not report any signs or symptoms for
pain and[,] as stated above[,] the claimant’s mental examinations have
been unremarkable. Furthermore, the evidence documents the claimant
stopped working due to the business closing and not because of the
allegedly disabling impairment. There is no evidence of a significant
deterioration in the claimant’s mental condition since the business closed;;
therefore, the claimant’s impairment would not prevent the performance of
any job, since it was being performed adequately at the time. Therefore,
pursuant to 20 CFR 404.1527(d)(1) , the undersigned gives little weight
to the opinion of Dr. Tocci.
The undersigned gives little weight to the Medical Source Statement
(Mental) completed by Jennifer Embrey, a Licensed Professional
Counselor. Ms. Embrey opined the claimant has moderate to marked
limitations in each domain. However, the evidence documents the
claimant was treated at West Alabama Mental Health two times and her
affect was noted as normal and she was oriented times four. Besides her
reports of poor sleep and fair appetite, it was noted her motor activity was
calm and she denied suicidal and homicidal ideation. The undersigned
notes Ms. Embrey’s treating relationship with the claimant is quite brief
and without substantial support from the other evidence of record, which
obviously renders her opinion less persuasive. Therefore, the undersigned
gives little weight to the opinion of Ms. Embrey.
The undersigned has considered the opinion of Dr. Manning and has
given it little weight. Dr. Manning opined the claimant is unable to work
because of her diabetes and is experiencing a lot of high readings with
alternating low sugars. Normally a treating physician would be given great
weight, but not if the opinion is inconsistent with her treating notes and the
evidence of record. The evidence documents controlled diabetes as well
as unremarkable physical examinations. Even Dr. Manning’s records do
not reflect objective findings consistent with her opinion. Her most recent
records show the claimant as well appearing, well-nourished[, and] in no
distress. There were no complications related to uncontrolled diabetes and
her physical examination was unremarkable. Thus, the undersigned ha[s]
given this opinion little weight and great probative value to treatment
records as a whole.
In sum, the above residual functional capacity assessment is supported by
the available objective evidence[/]treatment records, the claimant’s
activities, the available acceptable medical sources referred to herein, to
the extent such [i]s consistent with Finding of Fact Number 5.
The claimant is capable of performing past relevant work as a
caterer helper. This work does not require the performance of work-
related activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565).
The vocational expert testified that the claimant has past relevant work as
a Caterer Helper (light, semiskilled, DOT Number 319.677-010) and a
Machine Presser (medium, unskilled, DOT Number 363.682-018). The
vocational expert was instructed to assume a hypothetical individual of the
claimant’s age, education, past relevant work experience, and who has
the residual functional capacity set out above. The vocational expert was
then queried as to whether such an individual would be able to perform
the claimant’s past work. The vocational expert answered that such a
hypothetical individual would still be able to perform the claimant’s past
relevant work as a Caterer Helper.
20 CFR 404.1520(e) . . . provide[s] that an individual will be found “not
disabled” when it is determined that a claimant retains the residual
functional capacity to perform past relevant work. This includes
performance of the actual functional demands and duties of a particular
past relevant job or the functional demands and duties of the occupation
as generally required by employers throughout the national economy.
Given the claimant’s residual functional capacity, and the testimony of the
vocational expert, the undersigned finds that the claimant is able to return
to her past relevant work as a Caterer Helper, and she is[,] therefore, “not
disabled.” In comparing the claimant’s residual functional capacity with the
physical and mental demands of this work, the undersigned finds that the
claimant is able to perform it as actually and generally performed,
pursuant to Social Security Ruling 82-62.
The claimant has not been under a disability, as defined in the
Social Security Act, from September 30, 2013, through the date of
this decision (20 CFR 404.1520(f)).
(Tr. 23-29 & 30-33 (internal citations and footnote omitted;; emphasis in original)).
II. Standard of Review and Claims on Appeal
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (1)
whether the claimant is engaged in substantial gainful activity;; (2) if not,
whether the claimant has a severe impairment;; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairments in the regulations;; (4) if not, whether the claimant has the
RFC to perform h[is] past relevant work;; and (5) if not, whether, in light of
the claimant’s RFC, age, education and work experience, there are other
jobs the claimant can perform.
Watkins v. Commissioner of Social Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9,
2012)3 (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f);;
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The
claimant bears the burden, at the fourth step, of proving that she is unable to perform
her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating
whether the claimant has met this burden, the examiner must consider the following four
factors: (1) objective medical facts and clinical findings;; (2) diagnoses of examining
physicians;; (3) evidence of pain;; and (4) the claimant’s age, education and work history.
Id. at 1005. Although “a claimant bears the burden of demonstrating an inability to return
to her past relevant work, the [Commissioner of Social Security] has an obligation to
develop a full and fair record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
(citations omitted). If a plaintiff proves that she cannot do her past relevant work, it then
becomes the Commissioner’s burden—at the fifth step—to prove that the plaintiff is
capable—given her age, education, and work history—of engaging in another kind of
substantial gainful employment that exists in the national economy. Phillips, supra, 357
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
F.3d at 1237;; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529
U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000);; Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform her past relevant
work as a caterer helper is supported by substantial evidence. Substantial evidence is
defined as more than a scintilla and means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. Richardson v. Perales, 402
U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether substantial
evidence exists, we must view the record as a whole, taking into account evidence
favorable as well as unfavorable to the [Commissioner’s] decision.” Chester v. Bowen,
792 F.2d 129, 131 (11th Cir. 1986).4 Courts are precluded, however, from “deciding the
facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996
(11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir. 2005)). And, “’[e]ven if the evidence preponderates against the Commissioner’s
findings, [a court] must affirm if the decision reached is supported by substantial
evidence.’” Id. (quoting Crawford v. Commissioner of Social Sec., 363 F.3d 1155, 1158-
1159 (11th Cir. 2004)).
On appeal to this Court, Carney asserts two reasons the Commissioner’s
decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1)
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
the ALJ erred in finding she has no severe mental impairment and finding that she
retains the mental residual functional capacity to perform semi-skilled work;; and (2) the
ALJ erred in finding that she has the residual functional capacity to perform light work.
Because the undersigned finds that the ALJ erred to reversal with respect to Plaintiff’s
first assignment of error, the Court has no reason to address Carney’s second
assignment of error. See Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985)
(“Because the ‘misuse of the expert’s testimony alone warrants reversal,’ we do not
consider the appellant’s other claims.”).
A severe impairment is an impairment or combination of impairments that
significantly limits the claimant’s physical or mental ability to do basic work activities. 20
C.F.R. § 404.1520(c). The Commissioner’s regulations define basic work activities as
the abilities and aptitudes to do most jobs and in analyzing step two of the sequential
evaluation process, the Commissioner considers a claimant’s “(1) Physical functions
such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling;; (2) Capacities for seeing, hearing, and speaking;; (3) Understanding, carrying
out, and remembering simple instructions;; (4) Use of judgment;; (5) Responding
appropriately to supervision, co-workers and usual work situations;; and (6) Dealing with
changes in a routine work setting.” 20 C.F.R. § 404.1522(b). “Step two is a threshold
inquiry.” McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). Only claims based
on the most trivial impairments may be rejected, and an impairment is not severe only if
the abnormality is so slight and its effect so minimal that it would clearly not be expected
to interfere with the individual’s ability to work. Id. A claimant need only demonstrate
that her impairment is not so slight and its effect not so minimal. Id.
When evaluating whether a claimant suffers from a severe mental impairment,
the Commissioner considers how the impairment impacts the following four broad
functional areas: (1) activities of daily living;; (2) social functioning;; (3) concentration,
persistence, and pace;;5 and (4) episodes of decompensation. 20 C.F.R. §
404.1520a(c)(3). Where the degree of limitation is rated as “none” or “mild” in the first
three functional areas, and as “none” in the fourth functional area, the Commissioner
will generally conclude that the claimant does not suffer from a severe mental
impairment. 20 C.F.R. § 404.1520a(d)(1).
In this case, the ALJ concluded that Carney’s depression and anxiety were non-
severe after concluding that the degree of functional limitation in the first three functional
areas was “mild” (or that there were no limitations) and that there were no episodes of
decompensation. (Tr. 27-28.) In particular, the ALJ found that Carney had mild limitation
in the area of concentration, persistence, and pace because after obtaining a GED she
performed semiskilled work as a caterer helper in a family-owned business and that had
the business not folded, “[t]he record strongly suggests . . . the claimant would have
continued in that business.” (Tr. 27.) This finding is not supported by substantial
evidence inasmuch as the record is clear that this family-owned business closed in
2010 (Tr. 45), approximately three years before Carney’s alleged disability onset date of
September 30, 2013 (see Tr. 23) and approximately four to five years prior to examining
or reviewing mental health professionals indicated that Carney had difficulties in
“Concentration, persistence, or pace refers to the claimant’s ability to sustain
focused attention and concentration sufficiently long enough to permit h[er] to timely and
appropriately complete tasks that are commonly found in work settings.” Jacobs v.
Commissioner of Social Security, 520 Fed.Appx. 948, 950 (11th Cir. Jun. 6, 2013) (citation
maintaining concentration, persistence, and pace because of her mental impairments
(compare Tr. 66 & 69 with Tr. 239).6 Accordingly, whether Carney would have been
capable of continuing in the family-owned catering business in 20107 simply has no
import with respect to whether Carney had limitations in concentration, persistence and
pace, and consequently a severe mental impairment, on or after her alleged onset
disability date of September 30, 2013, and certainly not on March 5, 2014, when the
reviewing physician, Dr. Donald E. Hinton, completed a Psychiatric Review Technique
indicating that Carney suffers from a severe affective disorder on account of moderate
difficulties in maintaining concentration, persistence, and pace (Tr. 66) and thereafter,
completed a “[n]ecessary” mental RFC assessment (see Tr. 69-70 (RFC assessment
concluded that Carney has sustained concentration and persistence limitations in that
her ability to maintain attention and concentration for extended periods is moderately
limited, such that she can attend and concentrate for two-hour periods, and her ability to
carry out detailed instructions is moderately limited;; however, her ability to carry out
very short and simple instructions is not significantly limited, nor is her ability to sustain
an ordinary routine without special supervision or to make simple work-related
decisions, etc.)). Interestingly, the ALJ accorded “some” weight to Dr. Hinton’s opinion
(Tr. 31) but then curiously states that “the functional limitations given by Dr. Hinton differ
In addition, the medical records indicate that a licensed professional mental
health counselor indicated on June 12, 2015, that Plaintiff’s ability to understand, remember and
carry out instructions was affected by her depression and anxiety (Tr. 337-38).
Plaintiff’s hearing testimony is clear that when she worked for her aunt, her aunt
accommodated her “health problems.” (Tr. 45 (“I worked for my aunt, wh[o] had a catering
business. She understood my situation. She worked with me as far as my situation and she
closed her business in 2010. And I knew that nobody else would be as reasonable and work
with me as she did as far as my health problems.”)).
slightly from those in the residual functional capacity assessment” (id.), even though the
ALJ’s RFC assessment contains no mental functional limitations (Tr. 30), much less
mental functional limitations that differ only slightly from those noted by Dr. Hinton in his
mental RFC assessment (compare id. with Tr. 69-70).8 And, of course, it bears
repeating that Dr. Hinton set forth mental functional limitations as part of a mental RFC
assessment only after concluding that Carney had a severe impairment (see id. at 66 &
In light of the foregoing, it is clear that substantial evidence does not support the
ALJ’s step two finding that Carney’s mental impairments were not severe, inasmuch as
the medical evidence demonstrated that her mental impairments caused her difficulties
in maintaining concentration, persistence and pace. See Delia v. Commissioner of
Social Security, 433 Fed.Appx. 885, 887 (11th Cir. Jul. 14, 2011) (“Substantial evidence
does not support the ALJ’s finding, at step two, that Delia’s mental impairments were
not severe because the medical evidence showed that these impairments did cause
restrictions in daily living, social functioning, and maintaining concentration, persistence,
or pace.”). However, provided the ALJ finds at least one severe impairment, see
Tuggerson-Brown v. Commissioner of Social Security, 572 Fed.Appx. 949, 951 (11th
Cir. Jul. 24, 2014) (“[W]e have recognized that step two requires only a finding of ‘at
As set forth infra, the ALJ clearly intended to include mental functional limitations
in his RFC assessment similar to Dr. Hinton’s limitations, which he at no time rejects (see Tr.
31), and, instead, prominently cites (Tr. 28 (“Dr. Hinton also completed a Mental Residual
Functional Capacity Assessment indicating no more than moderate limitations in any area.
Specifically, Dr. Hinton opined the claimant has the ability to understand, remember, and carry
out many short and simple instructions. He opined the claimant can attend and concentrate for
two-hour periods. He lastly opined work setting changes should be minimal, gradual, and fully
explained and she may require assistance with goal setting.”)).
least one’ severe impairment to continue to the later steps.”),9 and gives “full
consideration to the consequences of [the claimant’s] mental impairments on [her]
ability to work at later stages of the analysis,10 [any] error at step two [i]s harmless and
is not cause for reversal.” Delia, supra, 433 Fed.Appx. at 887 (citation omitted;; footnote
added). Here, of course, is where the ALJ committed reversible error inasmuch as the
ALJ did not give full consideration to the consequences of Carney’s mental impairments
on her ability to work at later stages of the analysis.
In reaching his RFC determination, at step four, it is clear that the ALJ in this
case gave no consideration to the consequences of Carney’s mental impairments on
her ability to work inasmuch as neither that assessment (see Tr. 30), nor the
hypothetical posed to the vocational expert (see Tr. 56) upon which the ALJ relied to
find Carney not disabled (compare id. with Tr. 30 & 32), contain mental functional
The ALJ did that in this case. (See Tr. 23.)
“At steps three, four, and five, the ALJ considers the claimant’s entire medical
condition, including impairments that are not severe at step two.” Delia, 433 Fed.Appx. at 887,
citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987);; see also Tuggerson-Brown, supra,
572 Fed.Appx. at 951 (“While the ALJ did not need to determine whether every alleged
impairment was ‘severe,’ he was required to consider all impairments, regardless of severity, in
conjunction with one another in performing the latter steps of the sequential evaluation
[process].”);; Sanchez v. Commissioner of Social Security, 507 Fed.Appx. 855, 858 (11th Cir.
Feb. 8, 2013) (“Before reaching step four, the ALJ must assess the claimant’s RFC—which is
the most work the claimant can do despite her physical and mental limitations—by considering
all of the relevant medical and medically determinable impairments, including any such
impairments that are not ‘severe.’ In assessing the RFC, the ALJ must consider the claimant’s
ability to meet the physical, mental, sensory, and other requirements of work.” (citations
omitted;; emphasis supplied)).
Although this Court’s focus is on step 4, it bears noting that the ALJ failed to consider
Carney’s mental impairments at step 3 (see Tr. 29-30 (no mention of Carney’s mental
impairments or any mental listings, such as 12.04)), though this is required, Delia, supra, 433
Fed.Appx. at 887 (“At steps three, four, and five, the ALJ considers the claimant’s entire medical
condition, including impairments that are not severe. . . . The ALJ considered Delia’s mental
impairments at steps three, four and five.”). This error simply constitutes an additional basis why
this action need be remanded for further consideration.
limitations found in the record (compare Tr. 30 with, e.g., Tr. 69-70 (indicating Carney’s
ability to understand and remember detailed instructions is moderately limited, as is her
ability to carry out detailed instructions and to maintain attention for extended periods—
although she can attend and concentrate for two-hour periods—11 and that her ability to
respond appropriately to changes in the work setting is moderately limited, as is her
ability to set realistic goals or make plans independently of others, such that work
setting changes should be minimal and gradual and she may require assistance with
goal setting;; however, Dr. Hinton did indicate that Carney’s ability to understand,
remember, and carry out very short and simple instructions is not significantly limited,
nor is her ability to make simple work-related decisions) & Tr. 239 (“She has . . .
isolation and anhedonia. She has the ability to learn, perform, and complete job tasks
but her concentration, pace, and persiste[nce] could be distracted and result in
imprecise product secondary to pain.”)), though the ALJ specifically insisted he did
include such mental functional limitations in his RFC assessment (see Tr. 31
(“Although the functional limitations given by Dr. Hinton differ slightly from those
in the residual functional capacity assessment . . . .” (emphasis supplied)). Given
that the ALJ obviously intended to include mental functional limitations (similar to those
As previously indicated, the Commissioner’s regulations make clear that basic
work activities include the ability to understand, carry out, and remember simple instructions;; the
ability to use judgment;; the ability to respond appropriately to supervision, coworkers, and usual
work situations;; and the ability to deal with changes in a routine work setting, 20 C.F.R. §
404.1522(a), all of which are addressed in some manner by Dr. Hinton (see Tr. 69-70) but not in
the ALJ’s RFC assessment (see Doc. 30) or his primary hypothetical posed to the VE (see Tr.
noted by Dr. Hinton) in his RFC assessment (id.),12 this cause is due to be remanded to
the Commissioner for further consideration, particularly since “the Commissioner’s
policy requires ALJs to be more detailed in evaluating a claimant’s RFC at step four
than in assessing the severity of mental impairments at steps two and three.” Hines-
Sharp v. Commissioner of Social Security, 511 Fed.Appx. 913, 916 (11th Cir. Mar. 6,
2013), citing Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1180 (11th
Cir. 2011);; cf. Sanchez, supra, 507 Fed.Appx. at 859 (affirming fifth-step denial of
benefits where the ALJ’s RFC assessment and hypothetical questions to the VE
accounted for all of the claimant’s mental limitations, including any limitations
attributable to BPD, which the ALJ failed to identify as a severe impairment). Had the
ALJ included the mental functional limitations he obviously intended to include in his
RFC assessment, and his hypothetical to the VE, this Court would have no cause to
remand this step 4 case, see Hines-Sharp, supra, 511 Fed.Appx. at 916 & 917
(affirming step 4 denial of benefits where the ALJ “did not simply restrict the hypothetical
to unskilled work,” but also included in the hypothetical the findings that the claimant
had “’marked limitations in understanding and remembering complex instructions,’
carrying out those instructions, and ‘making judgments on complex work-related
Certainly, that this is what the ALJ should have done here is clear given that the
ALJ found Carney’s “physical” impairments (that is, obesity, diabetes mellitus, history of
fibromyalgia, history of restless leg syndrome, hypertension, history of diabetic ketoacidosis,
and history of acute sinusitis and bronchitis) to be non-severe individually but nonetheless
“considered the impairments collectively in assessing the residual functional capacity” (Tr. 23),
and elsewhere signaled that he was doing this with respect to Plaintiff’s mental impairments
(see Tr. 27 (“The mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by itemizing various
functions contained in broad categories found in paragraph B of the adult mental disorders
listings in 12.00 of the Listing of Impairments. Therefore, the following residual functional
capacity assessment reflects the degree of limitation the undersigned has found in the
“paragraph B” mental function analysis.” (emphasis supplied)).
decisions,’ along with ‘moderate limitations in responding appropriately to usual work
situations and to changes in a routine work setting . . . .’”);; however, his failure to do so
requires a remand as it constitutes reversible error, see id.;; compare id. with Dial v.
Commissioner of Social Security, 403 Fed.Appx. 420, 421 (11th Cir. Nov. 18, 2010) (in
a case where the ALJ denied the claimant’s application on the basis that he could
perform his past relevant work and other work in the national economy, remand was
required where hypothetical to the VE did not include all of the claimant’s employment
limitations);; and Hennes v. Commissioner of Social Security Admin., 130 Fed.Appx.
343, 346 (11th Cir. May 3, 2005) (affirming ALJ’s fourth-step denial of benefits where
the hypotheticals to the VE comprised all of the claimant’s impairments), particularly
since the limitations noted by Dr. Hinton (see Tr. 69-70) appear to be inconsistent with
Carney’s past relevant semiskilled work as a caterer helper (see Tr. 59 (VE’s testimony
that claimant could not perform her work as a caterer helper if she was limited to simple,
routine, and repetitive work activity)), see Pinion v. Commissioner of Social Security,
522 Fed.Appx. 580, 582 (11th Cir. Jun. 19, 2013) (“Where an ALJ determines at step
two of the sequential evaluation process that the claimant’s mental impairments caused
limitations in concentration, persistence, or pace, the ALJ must include those limitations
in the hypothetical questions posed to the VE. However, the ALJ may instead include in
the hypothetical questions the limitation that the claimant is restricted to unskilled
work if the medical evidence shows that the claimant can perform simple, routine
tasks or unskilled work despite her limitations in concentration, persistence, or
pace.” (citations omitted;; emphasis supplied)).
In light of the foregoing, and, in short, because the ALJ in this case did not give
full consideration to the consequences of Carney’s mental impairments at steps three
and four of the sequential evaluation process, his error at step two was harmful (not
harmless) and is cause for reversal and remand for further consideration not
inconsistent with this decision.
It is ORDERED that the decision of the Commissioner of Social Security denying
Plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. §
405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991),
for further proceedings not inconsistent with this decision. The remand pursuant to
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct.
2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 7th day of March, 2018.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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