Teacher v. Colvin
Filing
38
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be AFFIRMED. Signed by Magistrate Judge P. Bradley Murray on 6/21/2017. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
GEORGIA TEACHER,
)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security, )
)
Defendant.
)
CIVIL ACTION NO. 14-0179-MU
MEMORANDUM OPINION AND ORDER
Plaintiff Georgia Teacher brings this action, pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), seeking judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”) denying her claim for
Supplemental Security Income (“SSI”), based on disability. 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. (Doc. 35 (“In accordance with
the 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,
Teacher’s brief, the Commissioner’s brief, and all other documents of record, it is
determined that the Commissioner’s decision denying benefits should be
affirmed.1
I. PROCEDURAL HISTORY
Teacher applied for SSI, based on disability, under Title XVI of the Social
Security Act (“the Act”), 42 U.S.C. §§ 1381-1383d, on February 1, 2011. (Tr.
267). Her application was denied on November 2, 2012. After exhausting her
administrative remedies (Tr. 67), Teacher sought judicial review in this Court,
pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). Because the
Commissioner was unable to produce a transcript of Plaintiff’s administrative
hearing, this Court remanded the case for further administrative proceedings,
pursuant to “sentence six” of 42 U.S.C. § 405(g). (Docs. 11, 12). On remand, a
new hearing was held before an Administrative Law Judge (“ALJ”) (Tr. 1-33), and
by a decision dated June 20, 2015, the ALJ concluded that Teacher was not
disabled within the meaning of the Act. (Tr. 631-47). The ALJ’s decision
constitutes the Commissioner’s final decision for the purposes of judicial review.
See 20 C.F.R. § 416.1484(a).
On February 26, 2016, the Court entered an order granting the parties’
consent motion to reopen the case. (Doc. 15). The Commissioner filed an answer
and the social security transcript on May 25, 2016, and filed a supplemental
social security transcript on August 4, 2016. (Docs. 18, 19, 24). On September 6,
1
Any appeal taken from this Order and Judgment shall be made to the Eleventh
Circuit Court of Appeals. See Doc. 35 (“An appeal from a judgment entered by a
Magistrate Judge shall be taken directly to the United States Court of Appeals for
the judicial circuit in the same manner as an appeal from any other judgment of
this district court.”).
2
2016, Teacher filed a brief in support of her claim. (Doc. 28). The Commissioner
filed her brief on November 21, 2016. (Doc. 31). The parties waived oral
argument. (Docs. 34, 36). The case is now ripe for decision.
II. CLAIMS ON APPEAL
Teacher alleges that the ALJ’s decision to deny her benefits is in error for
the following three reasons:
1. The ALJ’s finding that Teacher’s headache disorder is a non-severe
impairment is not supported by substantial evidence;
2. The ALJ failed to rebut the presumption regarding Teacher’s mental
incapacity; and
3. The ALJ’s mental residual functional capacity assessment is not supported by
the record as a whole, as he erred in his evaluation of the opinion of an
examining physician.
(Doc. 28 at p. 2).
III. ALJ’S DECISION
Plaintiff has alleged disability due to cystic fibrosis, chronic asthma, lung
disease, bipolar disorder, and depression. (Doc. 28 at p. 1). Before the ALJ,
Teacher testified that she is also disabled due to a headache problem. (Tr. 10).
The ALJ made the following relevant findings in his July 20, 2015 decision:
1. The claimant has not engaged in substantial gainful activity
since February 1, 2011, the application date (20 CFR 416.971 et
seq.).
2. The claimant has the following severe impairments:
borderline intellectual functioning; asthma; and a mood
disorder, NOS (provisional) (20 CFR 416.920(c)).
3
Accordingly, the undersigned notes that a qualified physician has
either diagnosed or significantly documented the limiting effects of
the above-referenced impairments within the medical evidence of
record. Further, the undersigned finds that the above impairments
cause significant limitation in the claimant's ability to perform basic
work activities. Thus, the claimant has impairments that are
considered severe pursuant to the regulations.
The claimant also has a number of non-severe impairments that
have been considered in concert with the severe impairments to
determine the claimant's residual functional capacity. The claimant
has history of alcohol abuse and a headache disorder. At the
previous hearing and decision, there was an indication the claimant
had cystic fibrosis, but at this hearing Dr. Whatley, the medical
expert, testified he had reviewed the record and that it did not
establish by objective means that the claimant had cystic fibrosis,
so he did not assess it as an impairment. The indications of COPD
are here considered under Asthma, and the previous indications of
a major depressive disorder and an adjustment disorder are here
considered under the impairment of a mood disorder, NOS,
provisional, upon further consideration of the medical record.
***
In regards to her headache disorder, the evidence documents
several complaints of a headache; however, there is no actual
treatment for the disorder. In fact, most of her complaints of a
headache have resulted in a diagnosis of a sinus infection. Her
examinations have been unremarkable and there is no evidence
indicating she is on any pain narcotics or any radiological and/or
laboratory findings noting the severity of the disorder. Therefore,
the undersigned finds the impairment has not significantly limited or
is likely to significantly limit the claimant's ability to do basic work
activities and is therefore non-severe.
3. 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 416.920(d), 416.925 and 416.926).
The claimant's asthma does not meet or medically equal the criteria
of listing 3.03 because the evidence does not indicate any chronic
asthmatic bronchitis or attacks in spite of prescribed treatment and
requiring physician intervention, occurring at least once every two
months or at least six times a year.
4
The severity of the claimant's mental impairments, considered
singly and in combination, do not meet or medically equal the
criteria of listings 12.02 and 12.04. In making this finding, the
undersigned has considered whether the "paragraph B" criteria are
satisfied. 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 functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of
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 4
months, each lasting for at least 2 weeks.
In activities of daily living, the claimant has mild restriction. In a
Function Report - Adult, the claimant reported she can attend to her
personal needs independently. She reported she can prepare her
own meals, shops in stores for groceries, and clean her room
sometimes. (Exhibit C5E). This supports the claimant has no more
than mild limitations in this area.
In social functioning, the claimant has moderate difficulties. In the
aforementioned report, the claimant reported she has a problem
getting along with family, friends, neighbors, and others; however,
she reported she spends time with others. She also reported she
enjoys reading and watching television and she goes to her kid's
school and the grocery store on a regular basis (Exhibit C5E). This
supports the claimant has no more than moderate limitations in this
area.
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. In the aforementioned report, the claimant
reported she has problems completing tasks, memorizing,
concentrating, understanding, following instructions, and getting
along with others. However, she can sustain the focused attention
and concentration necessary to permit the timely and appropriate
completion of tasks commonly found in simple routine and
repetitive work settings, but cannot do so in detailed or complex,
work settings (Exhibit C5E). This supports the claimant has no
more than moderate limitations in this area.
As for episodes of decompensation, the claimant has experienced
no episodes of decompensation, which have been of extended
duration.
5
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 satisfied.
The undersigned has also considered whether the "paragraph C"
criteria are satisfied. In this case, the evidence fails to establish the
presence of the "paragraph C" criteria. … The claimant has not had
repeated episodes of decompensation, she has not had a residual
disease process that has resulted in such marginal adjustment that
even a minimal increase in mental demands or change in the
environment would be predicted to cause her to decompensate,
and she does not have a current history of one or more years
inability to function outside a highly supportive living arrangement
with an indication of continued need for such an arrangement.
***
4. After careful consideration of the entire record, the
undersigned finds that this now 25-26 year old claimant with a
high school education has the residual functional capacity to
perform Light to Medium work as defined in 20 CFR 416.967(c),
except that she can sit for a total of 6 hours, without
interruption for 1-2 hours, she can stand, and/or walk for a
total of six hours in an eight-hour workday, and for 30 minutes
to 1 hour without interruption. She can lift and carry frequently
15 pounds and occasionally up to 30 pounds. She has no
postural or manipulative limitations. She should not be
exposed to the [sic] concentrated or excessive exposure to
pulmonary irritants, such as dusts, odors, fumes, humidity,
and extremes of temperatures and the like. The claimant is
assessed with no more than mild to moderate pain, which
does not cause abandonment of task or of the work station,
and here mild and moderate are terms specifically defined as
not preventing the satisfactory completion of work. However,
in an abundance of caution due to her pain complaints
(headache history, etc.) and her mental issues, as it may affect
her concentration, persistence and pace, and for social
concerns, I find that she is limited to semi-skilled and lesser
work, to include unskilled, simple, repetitive, and routine work,
in jobs with no responsible or regular general contact with the
public, and any that occurs must be brief and superficial. She
should work in jobs where she can work primarily alone, in
jobs that would require little independent judgment, and in
jobs that have only routine changes, with no multiple or rapid
6
changes. The claimant is borderline intellectual functioning.
See, Exhibit C 10 F, P. 3.
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 416.929 and
SSRs 96-4p and 96-7p. The undersigned has also considered
opinion evidence in accordance with the requirements of 20 CFR
416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
***
In application documents the claimant a twenty-five year old female
with a high school education initially alleged her ability to work is
limited by cystic fibrosis, chronic asthma, bipolar disorder, and lung
disease (Exhibit C2E). She reported her alleged impairments affect
her ability to lift, squat, bend, stand, reach, walk, sit, kneel,
memorize, complete tasks, concentrate, understand, follow
instructions, and get along with others. However, she reported she
can attend to her personal needs independently. She reported she
cares for her children, prepare[s] microwave meals, and cleans her
room sometimes. She reported she enjoys watching television and
she spends time with others (Exhibit C5E). On appeal, she reported
she coughs up blood, has bad chest pains, and it is hard for her to
breathe. She reported this change occurred around April 15, 2011
(Exhibit C4E).
At the hearing, when questioned by the undersigned, the claimant
testified she was five feet tall and weighs 150 pounds. She testified
she had two children and lives with her boyfriend in Birmingham,
AL. She testified she has [a] driver's license and a car, and she
drives sometimes. She testified since filing her case, she has
worked as a cashier. She testified she would stock sometimes, but
asked to work as a cashier because it was not hard. She testified
she gets food assistance and is able to shop for groceries
independently. She testified she is sometimes able to cook, perform
housework, vacuum, and do laundry. She testified she does not
sweep too much because of dust. She testified she is right handed
and cannot carry anything. She testified she does not exercise due
to her breathing. She testified most of her day consists of trying to
clean up and reading her Bible. She testified she reads a few
verses at a time and her favorite part to read is Psalms. She
testified she has not had any mental health treatment this year, but
has had treatment for headaches and chest pain. She testified she
has no inpatient hospitalizations. She testified she cannot work due
7
to breathing problems, headaches, and asthma. She testified she is
no longer on oxygen, but does breathing treatment with a mask.
She receives $300 per month in child support and $451 per month
in Food Stamps, via a debit card.
When questioned by her representative, she testified her mother
was trying to get custody of her daughter and alleged she was an
alcoholic. She testified her last pregnancy resulted in a stillborn.
She testified she gets help with depression and when she is
depressed she cries a lot. She testified she misses her father and
when she sees little boys she thinks of her baby. She testified she
can be active about thirty minutes before she has to rest.
Dr. Lille McCain, Ph. D, a psychologist medical expert, testified the
claimant does not meet the criteria for any mental listing. She
testified there were no significant symptoms of depression and no
recent treatment; the results of the testing done in November 2014
by Dr. Stutts were noted as an underrepresentation of the
claimant's intellectual ability (Exhibit C 24 F, P. 4), and she opined
that her adaptive functioning was not compromised. She testified
that although the claimant might be moderately impaired in her
ability to respond to supervision and carry out detailed instructions,
she has no significant limitations with understanding and
memorizing. Dr. McCain testified the claimant can perform unskilled
to semiskilled work activities.
Dr. William Whatley, M.D, a medical expert[,] testified that although
the claimant reported she has cystic fibrosis, when she was
examined it was found she did not have cystic fibrosis, but had
asthma that was not well-controlled. Exhibit C 7 F, P. 9, 12. Her
recent treatment at Children's Hospital was for asthma, not cystic
fibrosis. She has been noted as non-compliant with her use of
medications for her asthma several times. See, e.g., Exhibit C 3 F,
P. 37. Dr. Whatley testified the claimant does not meet or equal a
listing. He testified that this 25-year old claimant with asthma could
perform medium exertion work activity, with pulmonary irritant
limitations.
The medical evidence at Exhibits ClF-C4F, C6F, and CllF is well
before the claimant's alleged onset date of September 25, 2010,
but it has been reviewed by the undersigned by way of history. This
evidence includes records from Hill Crest Behavioral Health,
Children's Health System, Bryan Whitfield Memorial Hospital,
Cahaba Center for Mental Health, and Behavioral Health of Selma.
The evidence documents a hospitalization in August 2006 for
complaints of auditory and visual hallucinations. She was treated
8
and discharged in stable condition (Exhibit ClF). She was treated at
Children's Health System from January 2004 to September 2006
for asthma and cystic fibrosis. It was noted in September 2006 the
claimant did not have or meet the diagnostic criteria for cystic
fibrosis; her physical examinations indicated her lungs were clear,
without any wheezes, rales or rhonchi, and she was diagnosed with
asthma, a recent flare possibly related to compliance issues [she
had run out of Singulair sometime ago] (Exhibit C 2 F, P. 4). She
had emergency room visits at Bryan Whitfield Memorial Hospital
from April 2007 to August 2008, with an admission for domestic
violence (Exhibit C3F). Exhibit C4F indicates her mental health
record was closed in December 2008, with the next entry not falling
until in July 2010, indicating she was seeking disability. Her school
records reflect the school nurse was aware of the claimant's
reported conditions of cystic fibrosis, asthma, and depression and
that she was prescribed medication for asthma of symbicort and an
albuterol inhaler, but none for depression at that time. (Exhibit C6F,
p. 3-4, 5- 6).
The claimant has several emergency room visits from Bryan
Whitfield Memorial Hospital. The emergent care notes covering
April 2009 through January 2010 reflects the claimant sought
emergency care for chief complaints of moderate cough, chest
pain, nausea, and vomiting. Her vital signs were essentially within
normal limits and a review of systems, including neurological,
cardiovascular, and psychological, were otherwise negative. Her
chest x-rays were negative for any active disease and her lungs
were clear and negative for any infiltrates. She was treated through
conservative measures and discharged in stable condition (Exhibit
CllF, 83-145).
From February 2010 to April 2010 she sought treatment for nondisability related complaints in connection with her pregnancy,
which included nausea, vomiting, weakness, headaches, vaginal
pain and swelling, and abdominal pain. She was ambulatory upon
arrival and not in any acute distress. Her 02 Saturation was 100%
and her vital signs were within normal limits. She admitted she was
not taking any medications. She denied having any respiratory
complaints. She was treated conservatively and discharged in
stable condition with diagnostic impression of abdominal pain, not
otherwise specified (Exhibit C11 F, 18- 82). In May 2010[,] she was
hospitalized for a non-disability related complaints of nausea and
vomiting in relation to her pregnancy. Upon examination, her chest
was clear bilateral and symmetrical. Her lungs were clear to
auscultation and she had regular rate and rhythm. Her vital signs
were within normal limits and she was treated conservatively with a
9
diagnostic impression of hyperemesis gravidarum, with
dehydration. She was discharged in stable condition (Exhibit Cl lF,
13-17).
After careful consideration of the evidence, the undersigned finds
that the claimant's medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms;
however, the claimant's statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible
to the extent they are inconsistent with the above residual
functional capacity assessment.
In terms of the claimant's borderline intellectual functioning and
mood disorder, NOS (provisional), the evidence indicates one
month prior to the onset date of September 25, 2010, she attended
a psychological evaluation conducted by Richard Reynolds, PhD. ...
Based on the examination, Dr. Reynolds diagnostic impressions
were major depression, rule out psychotic features. He opined the
claimant's reports of seeing her decreased father were not sufficient
to establish a diagnosis of psychotic features. He opined the
claimant's ability to understand, carry out and remember
instructions appeared intact. He lastly opined her ability to respond
appropriately to supervision, co-workers, and work pressures in a
work setting appeared mildly impaired by major depression (Exhibit
C5F, P. 4).
Seven months later on April 6, 2011, she attended a second
consultative examination, conducted by Donald Blanton, PhD. Her
chief complaints were asthma and cystic fibrosis, but then reported
she is depressed sometimes. … She was alert times four and her
intellect were estimated to be below average. Her insight was
limited and her judgment was considered fair for work. Dr. Blanton's
diagnostic impressions were major depression worsened by chronic
illness; pulmonary problems, gastrointestinal problems; and a
global assessment of functioning (GAF) of 50 (Exhibit C8F).
On May 4, 2011[,] Donald Hinton, PhD., a State Agency medical
consultant, completed a Psychiatric Review Technique Form after
reviewing the then available evidence and assessing the claimant's
mental allegations. Dr. Hinton opined the claimant had mild
limitation in restriction of activities of daily living, moderate
limitations in difficulties 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 (Exhibit C9F).
10
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 is able to
understand, remember, and carry out short and simple instructions.
She can attend for two-hour periods. Contact with the general
public should not be a usual job duty. Instructions and criticism
should be provided in a supportive and non-confrontive manner.
Contact with fellow employees should be infrequent and changes in
work setting should be minimal (Exhibit ClOF).
In March 2012[,] she presented to Cahaba Mental Health with
complaints of recurring depression including crying spells and low
energy. She denied suicidal or homicidal ideations and substance
abuse. Mental status evaluation noted her mood was dysphoric and
her motor activity was calm. Her speech pattern, affect, thought
content and thought perception were appropriate and there were no
disturbances in her orientation. Her diagnostic impressions were
adjustment disorder with depressed mood and a GAF score of 60,
indicating moderate limitations (Exhibit Cl8F, P. 7).
In November 2014, the claimant attended a third consultative
examination conducted by Lee Stutts, PhD, at which time she was
diagnosed with mood disorder, NOS (Provisional) and rule out
Major depressive disorder, personality disorder, NOS, and
Borderline intellectual functioning. She reported she has cystic
fibrosis, asthma, and back pain. She reported a motor vehicle
accident in 2012 and injured her back. Her mental status evaluation
indicated a well-nourished, well developed female who appeared
her stated age. She had adequate eye contact and her verbal
output and speech were within normal limits. Her mood and affect
were normal and she denied suicidal and homicidal ideation. Her
memory and insight were intact; however, her judgment was poor.
Dr. Stutts administered the Wechsler Adult Intelligence ScaleFourth Edition (WAIS-IV) and the Wide Range Achievement Test-4
(WRAT-4). Her WRAT-4 scores indicated a 73 in Word Reading, a
90 in Spelling, and a 71 in Math Computation. On the WAIS- IV she
scored a 68 in Verbal comprehension, a 65 in Perceptual
Reasoning, an 83 in Working Memory, a 62 in Processing Speed
and a full scale IQ score of 63. Dr. Stutts noted the results lies [sic]
in the mild mentally deficient range and at percentile 1. However,
Dr. Stutts noted she did not wear her glasses during testing, due to
leaving them at home, and he noted she gave only fair effort, and
complained of nausea and exhibited a lethargic style during testing.
He opined the results are deemed as an underrepresentation of her
ability. He also opined she is in the midst of a high risk pregnancy,
11
appears to focus on short-term gain, and has trouble with simple
routine and rules. He further opined she is mildly impaired in her
ability to respond appropriately to supervision, coworkers, and the
public, but is moderately to severely impaired in her ability to
understand, remember, and carry out instructions. He lastly opined
treatment would improve all symptoms (Exhibit C24F, P. 4).
Despite the fact the claimant has been diagnosed with the above
mental impairments the record reflects no actual treatment for the
impairments. In fact, prior records only exhibit routine and/or
conservative treatment, and her case was closed in 2008 with
Cahaba Mental Health. The evidence indicates four years later she
returned to Cahaba Mental Health in March 2012; however in
November 2012 the case was again terminated (Exhibit C23F).
Although, the available evidence of record indicates, during the
relevant period (i.e., AOD to the present), the claimant was
diagnosed with the above impairments[.] However, her mental
health treatment has been scant and there are no inpatient
hospitalizations for any psychiatric problems. When administered
the WAIS-IV she obtained a full scale IQ score of 63; however, Dr.
Stutts noted she did not wear her glasses during testing due to
leaving them at home. He also noted she gave only fair effort, and
complained of nausea and exhibited a lethargic style. He opined
the results are deemed as an underrepresentation of her ability,
and thus were not valid. Although, he opined she is mildly to
moderately impaired in her ability to understand, remember, and
carry out instructions (Exhibit C 24 F, P. 6), he opined treatment
would improve all symptoms (Exhibit C24F). Furthermore, the
claimant has worked with the alleged impairments, has lived a fairly
independent lifestyle and cares for her children. She testified she
has a driver's license and drives, has a high school diploma, and
she has worked semiskilled jobs in the past. She testified that she
gets food assistance on a debit card and can grocery shop
independently using the card. The evidence does not document
any follow up mental health visits since March 2012, or any
prescribed psychotropic medication, which suggests her symptoms
are under control or are no longer symptoms. Moreover, Dr.
McCain testified that although the claimant might be moderately
impaired in her ability to respond to supervision and carry out
instructions, she has no limitations with understanding and
memorizing. Based upon her review, Dr. McCain testified the
claimant can perform unskilled to semiskilled work activities. The
undersigned finds that these only mild to moderate unremarkable
findings, as well as the lack of treatment, suggests the claimant is
not be [sic] as limited as she alleges from the mental health
perspective.
12
In terms of her asthma, the evidence indicates on January 8, 2011,
she sought emergency treatment at Children's Health System with
complaints of chest pain and cough. Her physical examination
noted her vital signs were essentially within normal limits. She was
in no acute respiratory distress and her respirations were normal
and non-labored. She had decreased breath sounds on the right
without any wheezing noted. She had regular rate and rhythm and
her chest x-rays were unremarkable. It was, again, noted that she
did not have cystic fibrosis. She was discharged in stable condition
and diagnosed with musculoskeletal chest pain, pleurodynia, and
viral syndrome, upper respiratory infection (Exhibit C7F, P. 12).
On June 20, 2011, she presented to Bryan Whitfield Memorial
Hospital with complaints of a cough for four days. Her physical
examination was unremarkable and chest x-rays were negative of
any infiltrates. She was discharged in stable condition with a
diagnosis of upper respiratory infection (Exhibit CllF, 2-12). She
returned on August 23, 2011, with complaints of cough and
congestion due to an upper respiratory infection. Her physical
examination was unremarkable as well as her chest x-rays. She
was discharged in stable condition (Exhibit Cl2F). One month later
in September 2011 she returned with sudden chest pains. It was
noted she was not in any acute distress and her chest x-rays
revealed minimal dextroscoliosis, with no active disease noted
(Exhibit Cl3F). She returned in November 2011 with complaints of a
sore throat and abdominal pain. Her examination noted her 02 Sat
level was 96%. Her vital signs were essentially normal and she was
in no acute distress. Her respiration was even and unlabored and
she was treated conservatively and discharged in stable condition
with a diagnostic impression of upper respiratory infection and
pelvic inflammatory disease (Exhibit C l 4F).
On January 11, 2012, she returned to Bryan Whitfield Memorial
Hospital with complaints of a headache, cough, sore throat, and
hernia problems. Her physical examination was normal, as well as
chest x-rays. She was assessed with acute bronchitis and
discharged in stable condition (Exhibit Cl6F).
In March 2012[,] she presented to Cooper Green Hospital with
complaints of shortness of breath with cystic fibrosis, admitting she
had not seen a specialist in years. Her chest x-rays were negative
for any abnormalities, and her examination indicated no apparent
distress with bilateral breath sounds and no rhonchi, rales, or
wheezing noted. She was cleared to return to her normal activities
13
the next day and discharged with a diagnosis of acute bronchitis
(Exhibit Cl9F).
On May 16, 2012, she presented to Vaughan Regional Medical
Center with complaints of sore throat and cough. Her examination
did not exhibit any distress, including respiratory distress. Her vital
signs were within normal limits and her 02 Sat was 97%. She was
discharged in stable condition and diagnosed with an upper
respiratory infection (Exhibit C20F).
In January 2013, she presented to Hale County Hospital Clinic with
complaints of back pains and a headache. Her physical
examination was unremarkable and she was assessed with back
pain, headache, and an umbilical hernia. She returned in May 2013
with complaints of back pain, shortness of breath, and a headache.
Her physical examination was unremarkable for respiratory distress
and she was assessed with back pain, umbilical hernia, migraine,
strep throat, asthma, and cystic fibrosis, based on her report of
medical history (Exhibits C21F and C22F, P. 2, ).
On November 25, 2014, she attended a consultative examination
conducted by Huey Kidd, D.O. She reported she was applying for
disability due to cystic fibrosis and back problems and has been in
and out of the emergency room with shortness of breath. Physical
examination indicated she failed to make eye contact and had
slurred speech. She did not face the examiner and she did not sit
appropriately on the exam table. Dr. Kidd noted she acted in a
provocative and inappropriate manner and did not carry on a
consistent conversation, had slurred speech. She ambulated
without difficulty and had full range of motion throughout. Dr. Kidd
had concerns that there was alcohol and drug use involved, but he
noted that the claimant and her grandmother denied it; he did not
diagnose the claimant with any physical impairment; however, he
noted she has bipolar and depression. He opined she is very low
functioning and it would be very difficult for her to maintain any sort
of employment (Exhibit C25F, 2-6).
Dr. Kidd also completed a Medical Source Statement of Ability To
Do Work-Related Activities (Physical). He opined the claimant can
occasionally lift and/or carry up to twenty pounds. She can stand,
sit, and/or walk four hours at one time and in an eight-hour
workday. She can occasionally reach (including overhead), handle,
finger, feel, push, and/or pull and use foot controls bilaterally. She
can occasionally balance, stoop, kneel, crouch, and crawl, but she
can never climb stairs, ramps, ladders, or scaffolds. She can
tolerate occasional exposure to humidity, wetness, dust odors,
14
fumes, pulmonary irritants, extreme cold, extreme heat, and
moderate office noise. Dr. Kidd lastly opined she should avoid all
exposure to unprotected heights, moving mechanical parts, and
operating a motor vehicle (Exhibit C25F, 7-12). However, there are
no objective findings to justify limitations on the use of her hands
and feet, nor for any postural activities, and so this assessment is
rejected.
On December 28, 2014, she presented to the Hale County Hospital
for non-disability related complaints in connection with her
pregnancy. She was treated and discharged in stable condition
(Exhibit C26F).
In March 2015[,] she complained of fatigue, vomiting, and a
headache. Her physical examination was unremarkable and she
was assessed with acute tonsillitis, acute sinusitis, fatigue, and high
risk sexual behavior. She was treated with medication management
(Exhibit C27F).
Despite the fact the claimant has emergent treatment for shortness
of breath, the evidence indicates she was not in any apparent
distress when she arrived at the emergency room hospital and her
chest x-rays were negative for any abnormalities (Exhibits Cl9F and
C20F). Her O2 saturation has been 96 to 100 percent when
evaluated at the hospital, with no rhonchi, rales, or wheezing noted.
Interestingly, when examined by Dr. Kidd he did not diagnose her
with a physical impairment. However, he noted she had regular rate
and rhythm and her lungs were clear. She ambulated without
difficulty and she had full range of motion throughout (Exhibit
C25F). Moreover, Dr. Whatley testified the claimant does not meet
or equal a listing, and he opined that she can perform medium work
activity, with the only limitations being no exposure to pulmonary
irritants. Furthermore, there is no evidence of inpatient
hospitalizations since the alleged onset date for any respiratory
problems, and treatment records reflect only conservative treatment
for her respiratory complaints, which suggests this impairment is
under control when the claimant is compliant with her medication
regimen. The undersigned finds that the records indicate treatment
for mostly mild to moderate to unremarkable findings, and this,
along with a lack of treatment, suggests the claimant may not be as
limited as she alleges in this respect.
The undersigned finds the claimant's statements regarding her
impairments are only partially credible. The evidence in the record
indicates the claimant's functional limitations are not as significant
15
and limiting as has been alleged by the claimant. The evidence of
record indicates, despite the claimant's complaints and allegations,
she initially admitted she can attend to her personal needs
independently. She reported she can prepare microwave meals,
clean her room sometimes, shop for groceries, and spend time with
others (Exhibit C4E). However, at the hearing she testified she
shops for groceries independently, drives, cook[s], and perform[s]
housework to include vacuuming and laundry (Testimony).
Apparently, the claimant is able to care for her young child at home,
which can be quite demanding both physically and emotionally
without any particular assistance. These activities, when viewed in
conjunction with the other inconsistencies regarding the claimant's
allegations of mental and physical dysfunction, further limit the
claimant's credibility in discussing her functional limitations. Of note,
her descriptions of daily activities are representative of a fairly
active and varied lifestyle and are not indicative of a significant
restriction of activities or constriction of interests.
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 evidence, treatment records,
and the record as a whole.
Dr. Whatley testified based on his experience, education and
review of the evidence, the claimant's conditions did not meet or
equal any listed impairment. The undersigned notes Dr. Whatley's
opinion is consistent with records and reports obtained from the
claimant's treating physicians and with the evidence as a whole.
While it is noted, Dr. Whatley is a non-examining source; he is
however, a medical expert for the Social Security Administration.
As such, Dr. Whatley possesses an extensive understanding of the
disability programs and their evidentiary requirements. In addition,
Dr. Whatley had the benefits of reviewing the entire record and
being present throughout the claimant's testimony. Therefore, the
undersigned gives significant weight to the opinion of Dr. Whatley.
In addition, the undersigned rejects the assessment and Medical
Source Statement of Ability to Do Work-Related Activities Physical
of Dr. Huey Randolph Kidd (Exhibit C25F). In particular, Dr.
Randolph's [sic] opinion is rejected because he opined the claimant
is very low functioning and it would be very difficult for her to
16
maintain any sort of employment. He is out of his field here, not in
his field of medicine. He further opined she can only occasionally
reach (including overhead), handle, finger, feel, push, and/or pull
and use foot controls bilaterally. There is not any physical objective
evidence to support such limitations and his clinical exam does not
support these limitations either. However, he also opined she can
perform activities like shopping, use standard public transportation,
prepare simple meals, care for her personal hygiene, and sort,
handle, and use paper and/or files. He also opined she can
occasionally balance, stoop, kneel, crouch, and crawl, but she can
never climb stairs, ramps, ladders, or scaffolds. However, there are
no mentions of any musculoskeletal pain that would prevent full
time substantial gainful activity. In fact, Dr. Randolph [sic] did not
diagnose the claimant with any physical impairment. The
undersigned finds Dr. Randolph's [sic] opinion is inconsistent with
his own objective findings, which indicated an unremarkable
physical examination. Therefore, the opinion expressed is quite
conclusory, providing very little explanation of the evidence relied
on in forming the opinion and it is therefore rejected.
With regards to the claimant's mental limitations, the undersigned
gives significant weight to the opinion and testimony of Dr. McCain,
the impartial medical psychologist, who testified the claimant's
condition, did not meet or equal a mental listing. While it is noted,
Dr. McCain is a non-examining source, she is however a Licensed
Clinical Psychologist and a medical expert for the Social Security
Administration. Her opinion and testimony is consistent with and
supported by the lack of objective evidence on the claimant's part
and the record as a whole. In addition, Dr. McCain had the benefits
of reviewing the entire record and being present throughout the
claimant's testimony. The evidence does not document any mental
health treatment since March 2012, which further supports Dr.
McCain's opinion. Therefore, the undersigned gives significant
weight to the opinion of Dr. McCain.
The undersigned gives significant weight to the opinion of Dr. Lee
Stutts, the consultative examiner (Exhibit C24F). Dr. Stutts
diagnosed the clamant with mood disorder, NOS (Provisional). It is
noted that Dr. Stutts administered the Wechsler Adult Intelligence
Scale- Fourth Edition (WAIS-IV) but he opined the results are
deemed as an underrepresentation of her ability. He noted she did
not wear her glasses during testing due to leaving them at home,
and she gave only fair effort, but complained of nausea and
exhibited a lethargic test taking style. Although, he opined she is
mildly to moderately impaired in her ability to understand,
remember, and carry out instructions, he opined that treatment
17
would improve all symptoms. The undersigned finds Dr. Stutts[’s]
examination and assessment is 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 gives
Dr. Stutts'[s] opinion significant weight.
In addition, the undersigned gives substantial weight to the opinion
of Dr. Donald Hinton, the State agency medical consultant (Exhibits
C9F and Cl0F). In particular, Dr. Hinton's opinions are consistent
with the lack of significant mental health treatment in the record; the
unremarkable examinations; the vague responses at the
consultative examination; no psychotropic medications; and the
claimant's extensive activities of daily living. Although, Dr. Hinton
did not examine the claimant; however, he provided specific
reasons for his opinion indicating his opinion was grounded in the
evidence of record. The undersigned finds the evidence received
into the record after the initial determination did not provide any
new or material information that would significantly alter findings
about the claimant's functional limitations. Therefore, Dr. Hinton's
opinions are accorded substantial weight.
In summary, based on the totality of the evidence as
comprehensively discussed above, the undersigned finds the
claimant only partially credible regarding her self report of the
nature and extent of her functional limitations. The undersigned
also finds considerable medical evidence to conclude that the
claimant's impairments do not prevent the performance of
substantial gainful activity within the assessed residual functional
capacity. Total disability from all work activity is not established in
this case.
***
10. The claimant has not been under a disability, as defined in
the Social Security Act, since February 1, 2011, the date the
application was filed (20 CFR 416.920(g)) through the date of
this decision.
(Tr. at 633-47).
IV. DISCUSSION
A claimant is entitled to an award of SSI benefits if the claimant is unable
to engage in substantial gainful activity by reason of any medically determinable
18
physical or mental impairment which can be expected to result in death or last for
a continuous period of not less than 12 months. See 20 C.F.R. § 416.905(a). The
impairment must be severe, making the claimant unable to do the claimant’s
previous work or any other substantial gainful activity that exists in the national
economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-11. “Substantial gainful
activity means work that … [i]nvolves doing significant and productive physical or
mental duties [that] [i]s done (or intended) for pay or profit.” 20 C.F.R. §
404.1510.
In all Social Security cases, an ALJ utilizes a five-step sequential
evaluation in determining whether the claimant is disabled:
(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 Impairment in the regulations; (4) if not, whether the
claimant has the RFC to perform her 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. Comm’r of Soc. Sec., 457 F. App’x 868, 870 (11th Cir. 2012) (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 of proving the first four steps, and if the claimant does
so, the burden shifts to the Commissioner to prove the fifth step. Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999).
If the claimant appeals an unfavorable ALJ decision, the reviewing court
must determine whether the Commissioner’s decision to deny benefits was
“supported by substantial evidence and based on proper legal standards.”
19
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations
omitted); see 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Id. (citations omitted). “In determining whether
substantial evidence exists, [the reviewing court] 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). The reviewing court “may not decide the facts anew, reweigh the
evidence, or substitute [its] judgment for that of the [Commissioner].” Id. When a
decision is supported by substantial evidence, the reviewing court must affirm
“[e]ven if [the court] find[s] that the evidence preponderates against the
Secretary’s decision.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986).
As set forth above, Teacher has asserted three reasons why she argues
the Commissioner’s decision to deny her benefits is in error. The Court will
address each issue in turn.
A. Headache Disorder
Teacher asserts that the ALJ’s determination that her headache disorder
is a non-severe disorder was in error because it is not supported by substantial
evidence. She argues that the ALJ picked very few records to support his
position and ignored other records that showed that she had been diagnosed
with migraines on multiple occasions. (Tr. 653-672). The medical records cited
by Teacher to support the argument that she had been diagnosed with migraines
20
on multiple occasions are medical records from the Hale County Hospital Clinic
dating from January 31, 2013 until August 15, 2013.
When Teacher went to the clinic on January 31, 2013, she complained,
inter alia, of headaches and back pain. The record reflects that she said, “I’ve
been having really bad back pains and headaches: I was in a really bad accident
in December: sometimes my eyes get blurry.” (Tr. 656). She reported a history
of migraines, but the Court notes that none of her preceding voluminous records
support this history. She was discharged with a prescription for Maxalt and told to
follow-up in 2 months. On May 2, 2013, Teacher went again to the clinic
complaining of back pain, headache, and shortness of breath. (Tr. 666). The
history from that visit noted that she reported severe interference with activities of
daily living and household activities, but the history does not reflect which of her
complaints was causing this interference. With regard to headache, a review of
her systems revealed occasional headaches with sharp and throbbing pain in the
facial/sinus area and a ringing noise. She was arranged a consult with Dr.
Wallace on May 30 for her headaches, but there are no records reflecting that
visit. She was also prescribed Maxalt on this visit. Teacher next went to the clinic
on July 16, 2013 and did not complain of headaches. (Tr. 664). Teacher went to
the clinic on August 15, 2013, complaining of back pain and needing a shot of
depo prevara. She did not complain of headaches on that visit either. (Tr. 66263).
Teacher argues that, even if the headaches were related to sinusitis, as
found by the ALJ, the number of visits to the Emergency Room (ER) with
21
complaints of headaches is significant in evaluating their effect on her ability to
work. The transcript reflects that, prior to the visits referenced above, Teacher
had seven visits to clinics/ERs from October 28, 2005 to January 19, 2012 where
she complained of headaches, along with other symptoms. At each of these
visits, she was diagnosed with illnesses that have headache as a symptom; i.e.,
sinusitis, bronchitis, and upper respiratory infection. She was not diagnosed with
migraines at any of these visits.
A “severe” impairment is one that significantly limits the ability to perform
basic work activities. See 20 C.F.R. § 416.921. The ALJ’s determination that
Teacher’s sporadic reports of headaches do not constitute a severe impairment
is supported by substantial evidence. In addition to the foregoing evidence, which
shows the sporadic nature of the headaches and the fact that her headaches
were symptoms of other illnesses or an accident, rather than a separate disease
process, Dr. Whatley, one of the medical experts testified that the medical
records did not establish headaches so extreme as to warrant medical evaluation
or referral to a specialist. (Tr. 23 (“they didn’t think it was very significant”)).
Teacher did not produce evidence of disabling headaches that caused
limitations above those considered by the ALJ in his residual functional capacity
assessment. 42 U.S.C. § 423(d)(5)(A); see Ellison v. Barnhart, 355 F.3d 1272,
1276 (11th Cir. 2003) (finding that claimant bears the burden of proving disability
and is responsible for producing evidence in support of his claim). Teacher’s
complaints of headache pain were a subjective symptom, and the ALJ properly
assessed the severity of Teacher’s subjective symptoms. 20 C.F.R. § § 416.928,
22
416.929. In his decision, the ALJ stated: “However, in an abundance of caution
due to her pain complaints (headache history, etc.) and her mental issues, as it
may affect her concentration, persistence and pace, and for social concerns, I
find that she is limited to semi-skilled and lesser work, to include unskilled,
simple, repetitive, and routine work, in jobs with no responsible or regular general
contact with the public, and any that occurs must be brief and superficial.” (Tr.
636).
Based on the foregoing, the Court finds that the ALJ’s decision in regard
to Teacher’s complaints of headaches was supported by substantial evidence
and was not in error.
B. Mental Incapacity
Teacher argues that, in considering her mental limitations, the ALJ failed
to address or consider a medical report from August 2, 2006, in which Dr. Jon
Williamson diagnosed Teacher as being mildly mentally retarded upon her
discharge from Hill Crest Hospital (Tr. 228) or Teacher’s statements in a disability
report that she has trouble with math, has never paid her own bills, does not
know how to fill out a money order, has trouble reading and writing, and that it is
hard for her to understand some things. (Tr. 205, 207). Teacher contends that
the record as a whole shows that her mental limitations are more severe than
accepted by the ALJ, and the ALJ’s failure to include Teacher’s mental incapacity
in his assessment is not supported by substantial evidence.
Teacher did not list mental retardation as one of her impairments on her
application or in any other paperwork during the administrative process. Teacher
23
has the burden to present evidence of her impairments and their severity. See,
e.g., East v. Barnhart, 197 F. App’x 899, 902 (11th Cir. 2006); Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999). “Although the ALJ must consider all the
impairments the claimant alleges in determining whether the claimant is disabled,
… the ALJ need not scour the medical record searching for other
impairments that might be disabling, either individually or in combination, that
have not been identified by the claimant.” East, 197 F. App’x at 902
(emphasis added). “In order to meet a listing, the claimant must (1) have a
diagnosed condition that is included in the listings and (2) provide objective
medical reports documenting that this condition meets the specific criteria of the
applicable listing and the duration requirement. A diagnosis alone is insufficient.”
Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987) (citing
20 C.F.R. § 416.925(c)-(d)). In this case, the only mention of mental retardation
was in a discharge summary dated August 8, 2006 that was completed by Dr.
Jon Williamson in which he accorded Teacher a final diagnosis of “mild mental
retardation,” among others. (Tr. 228). There was no objective evidence in his
records to support this diagnosis. Moreover, he also treated Teacher during a
hospitalization from February 15, 2006 to February 23, 2006. (Tr. 235). In that
discharge summary, there was no diagnosis of mental retardation and, in fact, in
the summary of her mental status in the discharge summary, Dr. Williamson
stated that she had “estimated intelligence average.” (Tr. 236). Teacher’s
reliance on a single discharge diagnosis from a 2006 hospitalization that
occurred almost 5 years before the relevant period is not enough to defeat the
24
substantial evidence upon which the ALJ relied in concluding that she had
borderline intellectual functioning, which he found to be a severe impairment. The
record contains no evidence during the relevant period that supports a finding of
mental retardation, despite multiple evaluations and IQ testing.
In making his finding of borderline intellectual functioning that did not meet
or equal a listing, the ALJ considered the opinion of Dr. Stutts, an examining
psychologist, who diagnosed possible borderline intellectual functioning and
delineated mental functional limitations, the opinion of Dr. McCain, a
psychological expert, who opined that Teacher could perform the same
semiskilled or unskilled labor that she had previously performed, and the opinion
of Dr. Hinton, the State agency medical examiner, that she had moderate
limitations in maintaining social functioning and moderate limitations in
maintaining concentration, persistence, or pace. (Tr. 637, 639-41, 644-45). The
ALJ explained that he discredited Dr. Kidd’s opinion that Teacher is mentally low
functioning because he is a family practitioner who was contracted to perform a
“disability physical,” and therefore, making a mental assessment was outside his
field of expertise. The Court notes that Dr. Kidd did not perform any assessments
of her intellectual abilities. (Tr. 642). In addition, Dr. Kidd’s records reflect that he
had concerns that she had been drinking or taking drugs at the time of her visit to
him. (Id.).
This Court finds the Eleventh Circuit’s opinion in East v. Barnhart, 197 F.
App’x 899 (11th Cir. 2006), instructive here. In East, the plaintiff claimed she was
disabled due to her physical impairments of back injuries, asthma and seizures
25
and her mental impairments of bipolar disorder, depression, suicide attempts,
and a learning disability. The ALJ concluded she was not disabled, and the
plaintiff appealed arguing that the ALJ failed to consider her borderline
personality disorder diagnosis. Id. at 901. The Eleventh Circuit stated:
East did not list borderline personality disorder as one of her
impairments on her application or in any other paperwork she
completed during the administrative process. Furthermore, the
record contains no evidence of the effect that East's borderline
personality disorder had on her ability to perform basic work
activities. She did not describe the effect borderline personality
disorder had on her abilities in either her daily living questionnaire
or her hearing testimony. None of her doctors completed any
paperwork evaluating how East's borderline personality disorder
limited her abilities. Indeed, a description of the symptoms of this
mental disorder cannot even be found in the record. Instead, East's
medical records contain brief references to either historical or “by
report” borderline personality disorder diagnoses, most of which
occurred prior to East's alleged onset date. In fact, it does not
appear from the record that any of East's treating physicians, after
her alleged onset date, independently diagnosed East with
borderline personality disorder. Instead, since East's alleged onset
date, her primary diagnoses of mental impairments have been
depression and bipolar disorder.
East has the burden to present evidence of her impairments and
their severity. See Jones v. Apfel, 190 F.3d 1224, 1228 (11th
Cir.1999). Although the ALJ must consider all the impairments the
claimant alleges in determining whether the claimant is disabled,
see Jones v. Dep't of Health & Human Servs., 941 F.2d 1529, 1533
(11th Cir.1991), the ALJ need not scour the medical record
searching for other impairments that might be disabling, either
individually or in combination, that have not been identified by the
claimant. Under the circumstances, we cannot say the district court
committed reversible error in failing to consider East's borderline
personality disorder.
Id. at 902.
Based on the foregoing, Teacher’s claim that the ALJ erred by failing to
consider mental retardation as one of her disabilities is without merit. Substantial
26
evidence supported the ALJ’s determination that Teacher has borderline
intellectual functioning that does not meet or equal a listing.
C. Mental Residual Functional Capacity Assessment
Finally, Teacher argues that the ALJ’s mental residual functional capacity
(“RFC”) assessment is not supported by the record as a whole because he erred
in his evaluation of Dr. Stutts’s opinion regarding her mental functional
limitations. (Doc. 28 at pp. 5-6). Regarding her mental impairments, the
hypothetical that the ALJ presented to the vocational expert stated:
However, in an abundance of caution due to her pain complaints
(headache history, etc.) and her mental issues, as it may affect her
concentration, persistence and pace, and for social concerns, I find that
she is limited to semi-skilled and lesser work, to include unskilled, simple,
repetitive, and routine work, in jobs with no responsible or regular general
contact with the public, and any that occurs must be brief and superficial.
She should work in jobs where she can work primarily alone, in jobs that
would require little independent judgment, and in jobs that have only
routine changes, with no multiple or rapid changes. The claimant is
borderline intellectual functioning. See, Exhibit C 10 F, P. 3.
(Tr. 636).
Teacher asserts that this hypothetical was not supported by the evidence
because the ALJ incorrectly stated Dr. Stutts’s opinion regarding her limitations.
The ALJ stated in his decision that Dr. Stutts opined that Teacher is “mildly to
moderately impaired in her ability to understand, remember and carryout
instructions, [and] he opined that treatment would improve all symptoms.” (Tr.
644). However, according to Teacher, Dr. Stutt’s opinion also specifically states
that “[e]valuation of Ms. Teacher reveals … her ability to understand, remember
and carry out instructions is moderately to severely impaired.” (Tr. 680).
Teacher argues that the hypothetical given above based on the ALJ’s mental
27
RFC assessment did not line up with Dr. Stutts’s opinion of moderate to severe
impairment regarding the ability to remember, understand and carry out
instructions because it included semi-skilled work as part of the assessment.
Relying on Maiben v. Astrue, Civ. A. No. 07-0287-M, 2008 WL 1697257, at * 2-3
(S.D. Ala. 2008), Teacher asserts that because it is unclear if the ALJ gave
proper weight to Dr. Stutts’s opinion in his RFC assessment and whether he
gave the proper assessment in his hypotheticals provided to the vocational
expert, the case is due to be reversed because it is not supported by substantial
evidence.
Stutts was retained by the Social Security Administration to perform a
psychological evaluation of Teacher, which was performed on November 18, 2014,
when Teacher was five months pregnant in a high-risk pregnancy. (Tr. 677). Stutts
administered the Wechsler Adult Intelligence Scale and WRAT-4 to Teacher, on which
she scored a full-scale IQ score of 63, which lies in the mild mentally deficient range.
(Tr. 679). Stutts noted that Teacher did not wear her glasses during the testing (left
them at home), gave fair effort, complained of nausea, exhibited lethargic style, and was
in the midst of a high risk pregnancy, and therefore, opined that the results were an
underrepresentation of her ability. (Tr. 679). Stutts had limited medical and mental
health records to review for the evaluation (only from 2012). (Tr. 679). Stutts stated that
“[e]valuation of Ms. Teacher reveals her ability to respond appropriately to supervision,
co-workers and the public to be mildly impaired and her ability to understand, remember
and carry out instructions is moderately to severely impaired. All would improve with
treatment.” (Tr. 680). Stutts also completed a “Medical Source Statement of Ability to
28
Do Work-Related Activities (Mental)” form on November 18, 2014. This form defines
the rating terms: none, mild, moderate, marked, and extreme. (Tr. 681). On this form,
Stutts indicated that Teacher’s ability to understand, remember, and carry out
instructions is affected by her mental impairment. (Tr. 681). Specifically, he indicated
that Teacher’s ability to understand and remember simple instructions, her ability to
carry out simple instructions, and her ability to make judgments on simple work-related
decisions are mildly impaired, and her ability to understand and remember complex
instructions, ability to carry out complex instructions, and her ability to make judgments
on complex work-related decisions are moderately impaired. (Tr. 681). The form defines
mild as “[t]here is a slight limitation in this area, but the individual can generally function
well,” and the form defines moderate as “[t]here is more than a slight limitation in this
area but the individual is still able to function satisfactorily.” (Tr. 681).
A review of the entire record reveals that the ALJ was presented with multiple
opinions regarding Teacher’s mental functional limitations. After reviewing those
opinions, he gave significant weight to the opinions of consultative psychologist Dr.
Stutts and medical expert Dr. McCain, substantial weight to the opinion of State agency
psychologist Dr. Hinton, and rejected the opinion of examining family practice physician
Dr. Kidd. (Tr. 644). The ALJ summarized Dr. Stutt’s opinion as “mildly to moderately
impaired in her ability to understand, remember and carry out instructions.” (Tr. 644).
This opinion was supported by the detailed questionnaire completed by Dr. Stutts, in
which “mild” and “moderate” have distinct definitions. (Tr. 681). This opinion of Dr.
Stutt’s was also supported by Dr. McCain’s testimony that the record did not support a
moderate impairment in carrying out detailed instructions and that there were no
29
significant limitations in understanding and memory. (Tr. 19-20). This finding was also
consistent with Dr. Hinton’s opinion that she had moderate limitations in maintaining
social functioning and moderate limitations in maintaining concentration, persistence, or
pace. (Tr. 639-40).
“At step five of the evaluation process, the burden shifts to the
Commissioner to prove that other jobs exist in the national economy that the
claimant can perform.” Carter v. Comm’r of Soc. Sec., 411 F. App’x 295, 298
(11th Cir. 2011). The ALJ can determine whether such jobs exist by asking a
vocational expert a hypothetical question to establish whether someone with the
claimant’s impairments can perform a job in the national economy. See id. “In
order for a vocational expert’s testimony to constitute substantial evidence, the
ALJ must pose a hypothetical question which comprises all of the claimant’s
impairments.” Id. (citing Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1220 (11th
Cir. 2001). “However, the ALJ is not required to include findings in the
hypothetical that the ALJ has found to be unsupported.” Id. Although Dr. Stutts’s
narrative statement stated that Teacher’s ability to understand, remember and
carry out instructions was moderately to severely impaired, it is significant that
the term “severely” that Stutts used in the narrative statement is undefined, while
the terms “mild” and “moderate” are defined in the questionnaire, especially in
light of the findings of Dr. McCain and Dr. Hinton and in light of the fact that Dr.
Stutts opined those impairments would improve with treatment. It is certainly
reasonable to conclude that the ALJ did not find that the isolated and undefined
statement was supported in such a way that it should be included in the
30
hypothetical in light of the more detailed and objective opinions expressed in the
questionnaire completed by Dr.Stutts. The consistent opinions of Dr. McCain and
Dr. Hinton, along with other evidence in the record, constitutes substantial
evidence supporting the ALJ’s RFC assessment and hypothetical, as well as his
final decision.
Even if the ALJ erred in his hypothetical by including semi-skilled work, the
error was harmless because the vocational expert only included unskilled work in
his evaluation, and the ALJ’s opinion that significant jobs exist in the national
economy which Teacher can perform taking into consideration her age,
education, work experience, and residual functional capacity relied upon that
assessment. (Tr. 646). See Carter, 411 F. App’x at 298 (finding that ALJ not
referencing claimant’s adjustment disorder in his hypothetical to vocational expert
was harmless error because the ALJ’s determination that these problems did not
affect claimant’s ability to work was supported by evidence in the record).
CONCLUSION
In light of the foregoing, it is ORDERED that the decision of the
Commissioner of Social Security denying Plaintiff benefits be AFFIRMED.
DONE and ORDERED this the 21st day of June, 2017.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?