Nelson v. Colvin
Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 7/31/2014. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
LORETHA ANN NELSON,
CAROLYN W. COLVIN,
Commissioner of Social
CIVIL ACTION NO. 13-00294-B
brings this action seeking judicial review of a final decision
of the Commissioner of Social Security denying her claim for a
supplemental security income under Titles II and XVI of the
Social Security Act, 42 U.S.C. §§ 401, et seq., and 1381, et
On April 25, 2014, the parties consented to have the
undersigned conduct any and all proceedings in this case.
accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil
Upon careful consideration of the administrative
record and the memoranda of the parties, it is hereby ORDERED
that the decision of the Commissioner be AFFIRMED.
Plaintiff protectively filed an application for a period of
Plaintiff alleged that she had been disabled since January 1,
2009, due to back problems, right lung problems, knee problems,
and right hand problems.
(Id. at 67, 198, 228).
subsequently argued before the Agency that she also was disabled
as a result of post traumatic stress disorder. 1
(Id. at 228).
Plaintiff’s applications were denied and upon timely request,
she was granted an administrative hearing before Administrative
Law Judge Joseph F. Dent (hereinafter “ALJ”) on July 22, 2011.
(Id. at 56).
Plaintiff attended the hearing with her counsel
and provided testimony related to her claims.
(Id. at 91).
(Id. at 66).
On July 22, 2011, the ALJ
issued an unfavorable decision finding that Plaintiff is not
(Id. at 56).
The Appeals Council denied Plaintiff’s
request for review on April 17, 2013.
(Id. at 1).
waived oral argument (Doc. 22) and agree that this case is now
Plaintiff bases her claim before this Court solely on her
psychological impairments, i.e., post traumatic stress disorder
and adjustment disorder with depressed mood.
expressly abandoned any argument related to her physical
(Doc. 14 at 3).
Thus, the Court’s discussion
herein is limited to Plaintiff’s psychological impairments.
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Issue on Appeal
Whether substantial evidence
ALJ’s RFC assessment?
III. Factual Background
Plaintiff was born on October 28, 1966, and was forty-four
years of age at the time of her administrative hearing on June
(Tr. 61, 67).
Plaintiff testified that she graduated
from high school and attended one year of college.
(Id. at 67,
warehouse worker at Bush Hog for approximately twenty-two years
and served in the National Guard for twenty-one years.
Plaintiff stated in her Function Report that she
takes care of her daughter, which includes getting her ready for
school, escorting her to and from the bus stop, ironing her
clothes, and combing her hair.
(Id. at 76, 209-10, 212).
chores such as laundry and washing dishes, and handles her own
(Id. at 211-12).
Her interests include sports 2 and
spending time on her computer.
(Id. at 82, 213).
Plaintiff stated that she can no longer play basketball and
softball because she “can’t run like [she] used to and [she]
give[s] out of breath fast.”
she visits her mother and goes to church every Sunday.
Plaintiff testified at her hearing that she stopped working
in March 2009 when she was laid off as part of a personnel
reduction at her company.
She stated that she had “a
little mental problem” during the time that she worked, i.e.,
noise “g[o]t on [her] nerves,” and she liked to work by herself.3
traumatic stress disorder from serving in Desert Storm.
Plaintiff testified that her medications include several
pain medications, a muscle relaxer, anxiety medication, and an
anti-depressant, some of which make her drowsy.
(Id. at 74,
Standard of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
Plaintiff stated in her Function Report dated March 15, 2010,
that “most of the time [she] want[s] to be alone” and “[does
not] go out as much as [she] used to.” (Tr. 214). However, she
is able to finish what she starts, and she can follow written
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
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).
An individual who applies for Social Security disability
Disability is defined as the “inability to
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
engage in any substantial gainful activity by reason
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. 5
§§ 404.1520, 416.920.
The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
automatically found disabled regardless of age, education, or
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 relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (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.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
claimant’s residual functional capacity, age, education, and
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). 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. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). 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)).
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since January 1,
disorder with depressed mood. 6
The ALJ further
found that Plaintiff does not have an impairment or combination
of impairments that meets or medically equals any of the listed
impairments contained in 20 C.F.R. Part 404, Subpart P, Appendix
(Id. at 35).
work, limited to “simple, routine, and repetitive one-to-three
interaction with the public.”
(Id. at 38).
The ALJ also
While not at issue on appeal, the ALJ also found that Plaintiff
has the severe physical impairments of degenerative disc disease
of the cervical spine, degenerative joint disease of the right
shoulder and knees, mild osteoarthritis of the knees, recurring
sinusitis and related airway disease, status post injury and
surgical correction of right finger, status post hemidiaphragm
paralysis with corrective surgery, and obesity. (Tr. 34-35).
While not at issue on appeal, the ALJ also assigned several
physical restrictions to Plaintiff’s RFC for sedentary work.
impairments could reasonably be expected to produce the alleged
symptoms, her statements concerning the intensity, persistence
and limiting effects of the alleged symptoms were not credible
to the extent that they were inconsistent with the RFC.
incapable of performing her past work as a machine operator,
considering Plaintiff’s residual functional capacity for a range
inspector” and “cuff folder,” both of which are classified as
concluded that Plaintiff is not disabled.
Pertinent to this appeal are the findings made by the ALJ
which informed his decision that Plaintiff is not disabled.
determining that Plaintiff did not meet any Listing, the ALJ
made the following relevant findings:
The claimant does not have an impairment or
combination of impairments that meets or
impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d) and 416.926). . . .
considered singly and in combination, do not
meet or medically equal the criteria of
listings 12.04 and 12.06.
In making this
finding, the undersigned has considered
whether the “paragraph B” criteria are
To satisfy the “paragraph B”
criteria, the mental impairments must result
in at least two of the following: marked
restriction of activities of daily living;
marked difficulties in maintaining social
maintaining concentration, persistence, or
decompensation, each of extended duration.
A marked limitation means more than moderate
but less than extreme. Repeated episodes of
decompensation, each of extended duration,
means three episodes within 1 year, or an
average of once every four months, each
treating psychiatrist [Dr. Maria Tabino]
authored an opinion to the contrary (Exhibit
However, that opinion was in stark
contrast with the medical and objective
evidence of record, including [Dr. Tabino’s]
own treatment records. The inconsistency is
discussed below along with all relevant
For purposes here, her
Accordingly, the undersigned finds that in
activities of daily living, the claimant has
She is capable of
initiating and participating in activities
including cleaning, shopping, driving, and
maintaining a residence for herself and her
daughter, independent of supervision or
appropriate, effective, and sustainable.
In social functioning, the claimant has
moderate difficulties. The claimant is able
to initiate social contacts, communicate
clearly, demonstrate cooperative behaviors,
Nonetheless, the claimant insists that she
has an inherent inability to be around
Her treating psychiatrist [Dr.
psychologist [Dr. Joanna Koulianos, Ph.D.]
As the State agency psychologist
found limitation and provided opinion as to
the modifications that are necessary for her
to perform simple mental work activity, the
undersigned accepts her opinion.
With regard to concentration, persistence,
She can sustain focused
long enough to permit the timely and
appropriate completion of tasks commonly
However, the evidence of record
reveals that she has one year of college and
undersigned believes that she may be capable
of more detailed and complex work activity.
There is no evidence of any depreciation in
cognitive or intellectual capacity such that
the claimant would function in a diminished
activity after reaching the stated measures.
Nonetheless, the State agency psychologist
limited to routine and repetitive work.
her findings are more favorable to the
claimant, and allow for work activity, the
undersigned saw no reason to ignore her
As for episodes of decompensation, the
claimant has experienced no episodes of
decompensation, which have been of extended
The record does not indicate any
loss of adaptive functioning.
Because the claimant’s mental impairments do
not cause at least two “marked” limitations
or one “marked” limitation and “repeated”
episodes of decompensation, each of extended
duration, the “paragraph B” criteria are not
The undersigned has also considered whether
the “paragraph C” criteria are satisfied.
establish the presence of the “paragraph C”
criteria because there is no establishment
of repeated episodes of decompensation,
propensity toward decompensation or need for
a highly supportive living arrangement. . .
(Id. at 36-38).
In addition, in assessing the Plaintiff’s RFC, the ALJ made
the following relevant findings:
The claimant alleges that she suffers with
back, lung, knee, and right hand problems. .
significance, the claimant did not report a
mental impairment or mental limitations.
She further advised that her
condition caused changes as early as January
2007; however, she did not mention any
mental impairment or changes in her mental
capacity. . . .
When asked if she was receiving any care for
a mental impairment, she reported that she
was not (Id. at 6).
However, in her
medication list, she did advise that she was
taking Clonazepam for anxiety and Paroxetine
hydrochloride for nerves (Id. at 5).
on her allegations, the conditions for which
the medications were prescribed were stable.
The claimant also completed a functional
report approximately one month after she
submitted her application.
At that time,
per her report, she lived alone with a
She reported that she engages in
her own daily personal hygiene.
prepares her daughter for her school day,
takes her to the bus stop, and picks her up
at the end of the day (Exhibit 4E, pg. 1).
She advised that her mother assists with her
However, she did not mention any
mental limitation during such periods (Id.).
limitation, to that point in the report.
By way of example, in addressing her own
personal care she listed some limitation
stemming from pain in her legs and back.
She gave no indication that she
received or required any mental assistance
in caring for her daughter or herself.
mom does remind her to take her medications
(Id. at 3).
She prepares food, but primarily sandwiches.
occasion. Her mom cooks daily. She does do
ironing, laundry, and dishes.
in such activity once a week.
to any need for encouragement, she advised
that sometimes she has to be told to
overlook her pain (Id. at 3).
She goes out alone. She drives and rides as
well as walks when she travels.
in stores for food and clothes.
she shops only 30 minutes once a month. Her
impairments have not affected her ability to
manage funds (Id. at 4-5).
hobbies are limited to watching TV.
longer plays sports. She cannot run because
she experiences shortness of breath (Id. at
As to social activities, she advised
that she does spend time with others.
attends church every Sunday, and visits with
She needs someone to accompany
However, in response to getting along
others she wrote “[s]ometime[s] when I
around and we watch television I
[quiet] and they don’t and most of the
I want to be alone” (Id. at 6).
not go out as much as in the past (Id.).
The form allows her to select from a list of
items, if she believes her impairments cause
limitation in a particular item. . . .
concentration, understanding, and getting
along with others (Id. at 6).
no limitation in memory, completing tasks,
following instructions, or using her hands
(Id.) (all emphasis added).
However, she added that she does not know
how long she can pay attention.
finishes what she starts.
Although she did
instructions, she added that her ability to
follow written instructions is ok, but her
ability to follow spoken instructions is not
very good (Id.).
She can get along with
authority figures so long as authority is
dispensed in an orderly manner. Her ability
to hand[le] change in routine is ok.
ability to handle stress is not good (Id. at
The last question on the form specifically
advises the claimant to note any unusual
behaviors or fears.
The claimant reported
“I’m angry a lot” (Id.).
She elected to
further explain this entry.
understand and it make[s] me feel like I
want to be alone and cause[s] me to get
angry with people (Id. at 8) (emphasis
She reported no fear consistent
with posttraumatic stress disorder, and once
again attributed her concerns as secondary
Lastly, as to the functional report, . . .
[t]he undersigned notes that she completed
the report without any reported assistance.
. . . [T]he report provides no indication
for any significant mental impairment or
The report clearly suggests
that even the minimal mental limitation she
suggests is closely related to her physical
As noted, the claimant alleged onset in
The fact that she continued
to work thereafter is explored above.
is important here is that the medical
evidence consistent with that date lends no
weight to her allegation.
notes that although she alleged onset in
January 2009, the claimant did not submit
the application until February 2010.
evidence discussed below shows that there
was no impetus to submit a claim as the
claimant was financially secure and did not
believe she was disabled.
The claimant testified that she is medically
retired from the Army National Guard and
retired from her civilian employer only
after they laid her off due to closure, and
not because of any health issue.
claimant was receiving retirement pay from
. . .
On December 19, 2008, she met with a
She advised that she was “okay”
(Exhibit 6F, pg. 256).
Thereafter, she and
problems with billing, her choice and desire
The notes indicate
that the claimant was more than aware of
specific details during the conversation and
in fact, seems to have led the discussion.
[Dr. Tabino] noted general observations.
She was “able to verbalize her
complaints, explained the billing that she
received from Blue Cross form the private
sector and her laboratory work”
(emphasis added). Insight and judgment were
adequate. Memory and cognition were intact.
(Id.) (emphasis added).
Without any additional observations, etc.,
[Dr. Tabino] assessed adjustment disorder
with depressed mood chronic and assigned a
Global Assessment of Functioning (GAF) of
(Id. at 257).
Nonetheless, in the
summary [Dr. Tabino] noted that she did not
verbalize any depression at any time, but
complained regarding her copayment, lack of
receipt of medication, and billing.
There was no mention of PTSD.
[Dr. Tabino] mentioned the precise details
of her conversation at least three times.
encounter, as noted, provided very little
indication for severe impairment, as defined
by the Agency.
The claimant advised that
she was okay. From that point, the evidence
reveals a well-aware patient actively, if
not astutely, involved in her medical care.
Therefore, the undersigned finds that there
is no evidence to support the GAF of 50. .
Even a cursory review of the objective
report provides no support for a GAF of 50.
There is no evidence of a serious impairment
in social functioning and the clamant was
gainfully employed at that time, without
evidence or report of any mental impairment
preventing or limiting her employment.
The claimant did return on March 5, 2009 –
two months after alleged onset . . . . She
made no mention of any mental problems, and
did not exhibit any. . . .
(Id.). . . .
underwent screening for
results were negative.
Compensation and Pension examination.
was assessed regarding post-traumatic stress
disorder (PTSD) as well as symptoms for knee
and back pain.
The undersigned notes that
there was no mention of any PTSD during the
The claimant was calm, and
rather authoritative, as gleaned from the
notes above. . . . (Id. at 230).
She reported that she enjoys a close
relationship with her daughter; however, it
is often strained by her mood symptoms.
There is no previous report of this
issue, nor is there any such allegation in
her function report.
enjoys one to two close friendships beyond
She has no history for
She enjoys solving puzzles and
spending time on the computer. (Id.).
Mental status evaluation revealed she was
clean and neatly groomed.
activity was restless. Speech was hesitant.
Mood was anxious, agitated,
She was easily distracted.
The undersigned cannot help but note that
none of these factors were noted during her
visit with the nurse, just five days
earlier, nor during the psychiatrist visit
Of note is that those visits
examination that could result in a finding
of some level of VA disability and a
corresponding monthly disability payment.
(Id.) (emphasis added).
was well oriented.
Thought process was
There were no delusions.
Judgment was unremarkable. Intelligence was
average. There were no hallucinations. She
interpreted proverbs appropriately. She did
She does not experience panic
attacks. (Id. at 232) (emphasis added). She
is neither homicidal nor suicidal.
reported no limitation in activities of
daily living. (Id.) (emphasis added).
Her remote memory was normal.
immediate memory were mildly impaired.
also reported sleep impairment and as to
inappropriate behavior her brother refers to
her as crazy in regard to her exhibited
issues (Id. at 232) (emphasis added).
Per the results of that assessment, it
appears that no diagnostic tool other than
interview with the claimant relating purely
subjective reporting was used to diagnose
PTSD (Id. at 233-234). However, part of the
evaluation involved a discussion of her
The claimant offered
[Claimant] was laid off from a
Bushhog plant in Selma, Alabama, a
week prior to the interview after
22 years of employment.
reported she does not intend to
sign a severance agreement as it
(Id. at 234)
This statement is significant.
shows that despite the claimant’s current
allegations of disabling PTSD (Id. at 234),
the claimant was able to work despite this
Equally as telling, as
she later testified, she stopped working for
reasons unrelated to her health.
Despite her report that she was laid off and
her testimony, she nonetheless advised the
doctor that her mental disorder was factor.
As noted above, the claimant did not allege
allegations. . . .
She visited the mental health clinic on
April 2009. She advised the therapist “I am
doing better. . . . I got my medicine. . .
I just came from physical therapy. . . (Id.
at 215) (emphasis added).
She then added
that she “went to the zoo with her daughter”
(Id.) (emphasis added).
clearly shoes that the claimant was able to
engage in routine social activities.
. . .
She did not mention needing any breaks
secondary to being around the other guests.
. . .
The notion that she cannot tolerate
being around others is equally not likely.
Mental status evaluations and depression
screening were unremarkable.
claimant visited VA mental health personnel
again on April 21, 2009.
discussed her employment situation.
advised personnel as follows:
with regards to her job, she is
just waiting for her time.
cannot tolerate being around a lot
of people at work. Also indicated
that she has retirement.
still under unemployment.
. . .
She has been at work more than 22
package but she states she does
not accept that because there are
certain restrictions in that. . .
She is not concerned at this
time about not being able to work.
. . .
She is choosing what kind
of work she has. . . . She prefers
to have a job where she could be
working alone although she could
be with other people but she has
to be alone in her work station.
. . . (Id. at 211) (emphasis
These statements are critical. The claimant
knew she was not disabled.
As even the
therapist would later point out (in the
treatment notes), she clearly had savings
and was not worried about her employment
status. More importantly for purposes here,
she knew she could work and would return to
work at some point in the future, at her own
choosing. . . .
department on December 7, 2009.
recommended a change in medications to
claimant declined the recommended changes
(Id. at 107). Depression screening revealed
However, the claimant reported “I’m alright”
(Id. at 104).
She further advised that she
is not working because “there are no jobs
available” (Id.). . . .
The objective elements of the mental status
evaluation were unremarkable.
the claimant reported symptoms for PTSD and
was so diagnosed.
Diagnosis of adjustment
continued. However, largely consistent with
her presentation she was assigned a GAF of
55 (Id. at 104-105).
Such a GAF indicates
moderate difficulty in social, occupational,
or school functioning (DSM-IV-TR, pg. 34).
Moderate difficulty or limitation does not
preclude all work activity and certainly
does not indicate disability.
simply advised to continue Paxil (Exhibit
6F, pg. 105). . . .
[The claimant] visited the VA psychiatry
clinic on April 2, 2010, and for the first
time during the period adjudicated herein,
the claimant advised that she was not doing
However, the evidence suggest[s] that
it was not mental health, but more so her
financial situation that may have been the
primary factor. She advised that she is not
working and “not sure if this is her last
check from unemployment” (Exhibit 7F, pg. 2)
(emphasis added). . . .
consistent with her
[Dr. Tabino] recognized the significance of
the possible loss of unemployment insurance.
. . .
[Dr. Tabino] assigned a GAF of 55,
indicating no more than moderate difficulty
functioning. (Id. at 3).
In other words,
[Dr. Tabino] indicated that the claimant
could work, with moderate limitations in
mental work activity. . . .
On August 3, 2010, the claimant visited the
She advised that she was
“about the same. . . she is not working so
applied for disability” (Id. at 222).
advised [Dr. Tabino] that her claim was
denied and she was appealing.
vented regarding her life and symptoms of
PTSD in general (Id. ). The results of the
mental status evaluation remained basically
the same as the previous visit.
claimant failed to maintain eye contact and
her mood was dysphoric.
Beyond that there
was little change.
She also discussed the
recent death of her niece.
statement regarding disability is telling
conclusion that the application was based on
her current or future expected need for
additional income, and not any physical or
Despite very little change in her mental
status, [Dr. Tabino] downgraded her GAF to
45, which indicates serious difficulty in
social, occupational, or school activity
However, inconsistent with the assessment,
she made no changes in the claimant’s
medications. . . . The treatment plan . .
. was not indicative of a 10-point drop in
the claimant’s GAF.
Lastly, as to this
visit, [Dr. Tabino] offered no assistance
and made no comment regarding the claimant’s
application for disability.
Three weeks later, she presented
Tabino] with forms for the claim.
was sought or given (Id. at 219).
the treatment record, carefully summarized
entitled “Proof of Disability” (Exhibit 12F,
pg. 1). The form is not a VA, State Agency,
or product of this Agency.
The second page of the form contained
Listing 12.02 Organic Mental Disorders (Id.
at 2). . . .
The first requirement . . .
was the demonstration of a loss of specific
cognitive abilities or affective changes and
the medically documented presence of at
least one of the listed criteria.
[Dr. Tabino] annotated memory impairment.
At no time did [Dr. Tabino] report
any difficulty regarding the claimant’s
memory. As stressed above, the claimant was
an active if not equal partner in assessing
her activities, history, medications, and
At no time, did [Dr. Tabino]
note any cognitive deficiency. . . .
further noted disturbance in mood, and
carefully noted above, the treatment record
is not consistent with this finding.
were mood changes.
There was emotional
However, the mood changes were
unemployment insurance and the death of her
Emotional lability was likewise
related to the same factors.
. . . . [Dr.
Tabino] further advised that the claimant
suffered marked restriction or difficulties
in maintaining social functioning, as well
as concentration, persistence, and pace.
She even advised that there were repeated
episodes of deterioration or decompensation.
(Id. at 2).
The undersigned carefully
reviewed the provider’s interaction with the
Not only do those interactions
not support her assessment, but also the
claimant never reported symptoms consistent
with this report. . . .
[T]here is no
evidence of decompensation, whatsoever, in
spite of [Dr. Tabino’s] determination that
there were repeated episodes of such. . . .
In fact, as detailed above, both parties
clearly intended that the claimant was going
to return to work.
The evidence shows that
the claimant did address all activities of
daily living independent of direction or
She consciously made the
choice not to work, and apart from an
isolated work area, she never presented any
limitation for mental work activity, until
after she submitted her application.
limitation focused generally on her desire
not to be around others.
There was no
indication and there remains no indication
statement – prepared by the
representative – was not consistent with the
evidence of the treatment she provided, and
certainly not the evidence of record in
Her report warranted and received
very little weight. . . .
She returned to [Dr. Tabino] on December 3,
2010. She still provided symptoms for PTSD.
She added that she continued to receive
unemployment benefits. . . . She mentioned
that the loss of her niece continued to
depress her. . . . (Id. at 164).
The claimant . . . was
euthymic. Her affect was pleasant. She was
relaxed and comfortable during the session.
She was talkative.
She still reported an
inability to tolerate crowds.
judgment were adequate.
the same (Id. at 165) (emphasis added).
Despite the obvious improvement from the
last encounter, she continued to maintain
her GAF at 45 (Id.).
The undersigned does
There was nothing objectively
different from the periods during which she
rated her GAF at 55. Additionally, although
erroneous, the GAF of 45 is not consistent
with [Dr. Tabino’s] medical source statement
of five months earlier, indicating that the
claimant was so mentally impaired that a
listing was met.
Even more telling, and in conflict with the
medical source statement and the GAF of 45,
she advised the claimant “[r]eturn in 4
months as she seems to have improved at this
Despite the medical source statement, she
clearly did not believe the claimant, a
patient who rejected all offers of group
therapy, was disabled such that she needed
any counseling other than on an extend 4month
treatment plan shows that the claimant was
making great strides and required minimal
intervention. (Id.). . . .
On April 4, 2011, . . . [claimant] visited
She reported that she was
“alright” (Id. at 104).
had expired and she was living off of her VA
She hurts all the time and it
She allegedly continued to
experience nightmares and flashbacks. . . .
[Dr. Tabino] reported her observations. The
claimant was . . . calm and cooperative.
She interacted and participated in her
Her mood was euthymic.
coherent and well engaged.
She was still
optimistic about life (Id. at 105) (emphasis
disorder with depressive features was no
longer part of her diagnoses.
and incredibly, [Dr. Tabino] maintained that
the claimant’s GAF was 45. She was directed
to return in four months.
Tabino’s] actions are grossly inconsistent
with her assessments, including her medical
improvement was undeniable.
was now on a program requiring intervention
only three times a year.
The claimant did
not suffer any serious or disabling mental
The undersigned reviewed the remainder of
the voluminous VA records and could not find
any evidence of a disabling impairment. . .
(Tr. at 39-52).
The Court now considers the foregoing in light
of the record in this case and the issue on appeal.
Whether substantial evidence
the ALJ’s RFC assessment?
Plaintiff argues that the ALJ’s finding that she retained
the RFC to perform a range of sedentary work, conditioned upon
the work being limited to simple, routine, and repetitive oneto-three
occasional interaction with coworkers, and no interaction with
Specifically, Plaintiff argues that the ALJ erred in
Maria Tabino, that she is disabled and that, having done so,
there is no medical evidence to support the ALJ’s RFC.
discredited the opinions of Dr. Tabino and that the ALJ’s RFC
determination is supported by substantial medical evidence in
As noted above, Plaintiff does not take issue with the ALJ’s RFC
determination related to her physical impairments.
Court limits its discussion to Plaintiff’s mental impairments.
With respect to Plaintiff’s argument that the ALJ erred in
discrediting the opinion of her treating physician, Dr. Tabino,
that she is disabled as a result of her mental impairments, the
Court finds, to the contrary, that the ALJ had good cause to
discredit Dr. Tabino’s opinions set forth in the August 2010
forms and that the ALJ sufficiently articulated his reasons for
(Tr. 37-50, 1057-58).
“It is well-established that
the testimony of a treating physician must be given substantial
Crawford v. Commissioner of Soc. Sec., 363 F.3d
1155, 1159 (11th Cir. 2004) (citations and internal quotations
The ALJ may discount the treating physician’s report
where it is not accompanied by objective medical evidence, is
wholly conclusory, or is contradicted by the physician’s own
Green, 223 Fed. Appx. at 922-23 (ALJ had good cause to devalue a
treating physician’s opinion where it was inconsistent with the
warrant controlling weight, the ALJ must nevertheless weigh the
relationship and the frequency of examination; (2) the nature
evidence and explanation supporting the opinion; (4) consistency
with the record as a whole; (5) specialization in the pertinent
medical issues; and (6) other factors that tend to support or
contradict the opinion.”
Weekley v. Commissioner of Soc. Sec.,
486 Fed. Appx. 806, 808 (11th Cir. 2012) (unpublished) (citing
20 C.F.R. § 404.1527(c)).
When an ALJ articulates specific
reasons for declining to give a treating physician’s opinion
controlling weight, and the reasons are supported by substantial
Commissioner of Social Sec., 455 Fed. Appx. 899, 902 (11th Cir.
2012) (unpublished) (“We have held that an ALJ does not need to
Indeed, an ALJ “may reject any medical opinion, if
the evidence supports a contrary finding.”
Id., 455 Fed. Appx.
Although the ALJ must evaluate the treating physician’s
ultimate determination of disability is reserved for the ALJ.”
Green, 223 Fed. Appx. at 923 (citing 20 C.F.R. §§ 404.1513,
depressed mood” met the criteria set forth in paragraphs A and B
of Listing 12.02 (organic mental disorders). 9
Listing 12.02 provides in pertinent part:
Psychological or behavioral abnormalities
associated with a dysfunction of the brain.
laboratory tests demonstrate the presence of
a specific organic factor judged to be
etiologically related to the abnormal mental
functional abilities. The required level of
severity for these disorders is met when the
requirements in both A and B are satisfied,
or when the requirements in C are satisfied.
A. Demonstration of a loss of specific
cognitive abilities or affective changes and
the medically documented persistence of at
least one of the following:
1. Disorientation to time and place; or
2. Memory impairment, either short-term
(inability to learn new information),
intermediate, or long-term (inability
to remember information that was known
sometime in the past); or
3. Perceptual or thinking disturbances
(e.g., hallucinations, delusions); or
4. Change in personality; or
5. Disturbance in mood; or
6. Emotional lability (e.g., explosive
temper outbursts, sudden crying, etc.)
and impairment in impulse control; or
ability of at least 15 I.Q. points from
premorbid levels or overall impairment
impaired range on neuropsychological
Tabino opined that Plaintiff demonstrated the loss of specific
criteria factors, those being, memory impairment, disturbance in
mood, and emotional lability.
(Tr. at 1058).
In addition, Dr.
maintaining social functioning, deficiencies of concentration,
persistence, or pace, and repeated episodes of deterioration or
which contain the same paragraph B criteria found in Listing
The ALJ found no record evidence to support Dr. Tabino’s
opinions that Plaintiff satisfies the paragraph B criteria of
these Listings. 10
The Court has extensively reviewed the record
1. Marked restriction of activities of
daily living; or
2. Marked difficulties in maintaining
social functioning; or
3. Marked difficulties in maintaining
concentration, persistence, or pace; or
4. Repeated episodes of decompensation,
each of extended duration; . . . .
20 C.F.R. § 404, app. 1.
The ALJ also found that Plaintiff failed to satisfy the
paragraph C criteria of Listings 12.04 and 12.06 because
and agrees with the ALJ that Dr. Tabino’s August 2010 opinions
are unsupported by any evidence in the record, including Dr.
Tabino’s own treatment records.
The Court finds, as the ALJ
found, that Dr. Tabino’s treatment records do not reflect marked
show episodes of decompensation.
To the contrary, as the ALJ found, Dr. Tabino’s treatment
records show that Plaintiff’s GAF scores were related more to
stress over losing her job, loss of her unemployment benefits,
and her niece’s death than any psychological impairment.
at 753, 995-96, 998).
Dr. Tabino’s records further reflect that
disabled, and that it was her unemployment, not disability, that
motivated her to apply for disability benefits. 11
(Id. at 429,
decompensation, propensity toward decompensation, or need for a
highly supportive living arrangement. (Tr. 38).
As the ALJ found, Plaintiff reported to Dr. Tabino that she
had applied for disability benefits because “currently she [was]
not working.” (Tr. 48, 996).
GAF (Global Assessment of
through 100) used by mental
occupational functioning on
score of 41-50 indicates
Functioning) is a numeric scale (0
health clinicians that measures a
a hypothetical continuum.
serious symptoms (e.g., suicidal
significant improvement in Plaintiff’s symptoms. 13
(Id. at 429-
March 2009, April 2009, April 2010, and December 2010, all of
which were “negative . . . for depression.”
(Id. at 540, 580-81,
Dr. Tabino’s opinions are also inconsistent with
limitations in the workplace as consisting of noise “get[ting]
on [her] nerves” and a desire to work alone. 14
(Id. at 73).
This is a far cry from Dr. Tabino’s assessment that Plaintiff is
ideation, severe obsessional rituals, frequent shoplifting) or
serious social dysfunction (e.g., no friends, unable to keep a
A GAF score of 51-60 suggests moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).
A GAF score of 61-70 is indicative of mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in social,
occupational, or school functioning (e.g., occasional truancy,
or theft within the household), but generally functioning pretty
well, has some meaningful interpersonal relationships.
Despite Plaintiff’s reports to the contrary, Dr. Tabino
herself noted in March 2008 that Plaintiff “is not depressed.”
In her initial applications, Plaintiff did not even mention
mental impairment; rather, she based her applications solely on
back problems, right lung problems, knee problems, and right
hand problems. (Tr. 198).
Because Dr. Tabino’s opinions in the August 2010
forms are inconsistent with her own treatment notes, as well as
the remaining record evidence, they were properly discredited by
the ALJ and assigned little weight.
The undersigned further finds that the ALJ’s RFC assessment
is based on substantial record evidence.
capacity is a measure of what Plaintiff can do despite his or
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 impairments, and must be supported by substantial
See Beech v. Apfel, 100 F. Supp. 2d 1323, 1331 (S.D.
Ala. 2000) (citing 20 C.F.R. § 404.1546 and Lewis v. Callahan,
125 F.3d 1436, 1440 (11th Cir. 1997)); Saunders v. Astrue, 2012
U.S. Dist. LEXIS 39571, *10, 2012 WL 997222, *4 (M.D. Ala. March
Once the ALJ has determined the Plaintiff’s residual
See Flynn v. Heckler, 768 F.2d 1273, 1274
(11th Cir. 1985).
Plaintiff has failed to meet her burden in
As noted, Plaintiff contends that because the ALJ rejected
the opinions of Dr. Tabino, her treating physician, there is no
The undersigned notes, however, that while the ALJ
rejected the opinions expressed by Dr. Tabino in the “Proof of
relied heavily on Dr. Tabino’s treatment records in determining
Plaintiff’s RFC, and in ultimately concluding that Plaintiff is
regarding her functional capacity.
Green v. Soc. Sec. Admin.,
Saunders, 2012 U.S. Dist. LEXIS 39571 at *10, 2012 WL 997222 at
*4 (“[T]he Eleventh Circuit has not set out a rule indicating
that an RFC must be based on the assessment of a treating or
examining physician in every case.”).
In Green, the Eleventh
Circuit affirmed the district court’s finding that the ALJ’s RFC
assessment was supported by substantial evidence, even in the
absence of an RFC assessment by a treating or examining medical
source, where the ALJ had good cause to discredit the treating
physician’s opinion and had formulated the plaintiff’s RFC based
on the treatment records and the plaintiff’s testimony.
opinion of her remaining capabilities, the ALJ will evaluate
such a statement in light of the other evidence presented and
the ultimate determination of disability is reserved for the
Id., 223 Fed. Appx. at 923 (citing 20 CFR §§ 404.1513,
404.1527, 404.1545); see also Packer v. Astrue, 2013 U.S. Dist.
LEXIS 20580, *7, 2013 WL 593497, *2 (S.D. Ala. February 14,
2013) (the fact that no treating or examining medical source
submitted a physical capacities evaluation “does not, in and of
itself, mean that there is no medical evidence, much less no
‘substantial evidence,’ to support the ALJ’s decision.”).
There is no question in this case that the ALJ considered
all the evidence of record and took into account Plaintiff’s
concerning the severity of Plaintiff’s limitations caused by her
mental impairments, the credible opinions provided by medical
sources about what Plaintiff still can do, 15 the reports provided
The ALJ’s RFC is also supported by the opinions of State
Agency psychologist, Dr. Joanna Koulianos, Ph.D., set forth in
the July 2, 2010, Psychiatric Review Technique and Mental RFC
Assessment. (Tr. at 767, 771). As the ALJ found, Dr. Koulianos
opined that Plaintiff’s post traumatic stress disorder and
adjustment disorder with depressed mood have resulted in a
to the Agency by Plaintiff, and the Plaintiff’s testimony.
evidence in reaching his determination that Plaintiff retains
the residual functional capacity to perform a range of sedentary
which fully account for the limitations caused by Plaintiff’s
Thus, the undersigned concludes
“mild” restriction in Plaintiff’s activities of daily living, a
functioning and maintaining concentration, persistence, or pace,
and no episodes of decompensation. (Id. at 767). Dr. Koulianos
further opined that Plaintiff either is not significantly
limited or only moderately limited in all functional areas as a
result of her psychological impairments. (Id. at 771-72).
ALJ is “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 evaluation.’”
(unpublished) (citing 20 C.F.R. § 404.1527(f)(2)(i)). “The ALJ
may rely on opinions of non-examining sources when they do not
conflict with those of examining sources.” Id. (citing Edwards
v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991)).
exception of Dr. Tabino’s discredited opinions in the “Proof of
Disability” and “Mental Impairment Questionnaire” forms, Dr.
Koulianos’ opinions did not conflict with the credible opinions
of any examining sources.
Thus, the ALJ properly afforded Dr.
Koulianos’ opinions the greatest weight.
See Forrester, 455
Fed. Appx. at 902 (“the ALJ did not err by crediting the
opinions of non-treating sources over those of the treating
physician. . . .
The ALJ must give the treating physician’s
opinion ‘substantial or considerable weight unless good cause is
shown to the contrary,’ which happened here.”) (emphasis in
original); see also Lee ex rel. B.G.S. v. Colvin, 2013 U.S.
Dist. LEXIS 34558, *37, 2013 WL 1007708, *11 (S.D. Ala. 2013)
(unpublished) (“an ALJ may rely upon and credit the opinions of
non-treating sources over those of a treating physician if the
evidence supports the opinions of the non-treating sources but
not the opinions of the treating physician”)).
that Plaintiff’s assignment of error is without merit.
Based upon a careful review of the record in this case and
for the reasons set forth above, the Court finds that the ALJ’s
RFC assessment is supported by substantial evidence.
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.
DONE this 31st day of July, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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