Smith v. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER entered. After considering the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 5/6/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ARETHA SMITH,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

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CIVIL ACTION 14-0392-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling denying claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1; Tr.
115-24).

The parties filed written consent and this action has

been referred to the undersigned Magistrate Judge to conduct all
proceedings and order judgment in accordance with 28 U.S.C. §
636(c) and Fed.R.Civ.P. 73 (see Doc. 23).
waived in this action (Doc. 24).

Oral argument was

After considering the

administrative record and the memoranda of the parties, it is
ORDERED that the decision of the Commissioner be AFFIRMED and
that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and

1

Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial

evidence requires “that the decision under review be supported
by evidence sufficient to justify a reasoning mind in accepting
it; it is more than a scintilla, but less than a preponderance.”
Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting
Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
forty-four years old, had completed a high school education1 (Tr.
45), and had previous work experience as a fish plant worker, a
dietary aide, and a meat packager (Tr. 51).

Smith alleges

disability due to major depressive disorder, migraine headaches,
hypertension, anxiety, panic disorder with agoraphobia, fatigue,
side effects from medication, back pain, GERD, obesity,
irritable bowel syndrome, and peripheral edema

(Doc. 14).

The Plaintiff applied for SSI and disability benefits on
October 19 and 27, 2010, respectively, alleging a disability
onset date of August 12, 2010 (Tr. 15, 115-24).

An

Administrative Law Judge (ALJ) denied benefits, determining that
although she could not return to her past relevant work, Smith
could perform specific light work jobs (Tr. 15-27).

Plaintiff

requested review of the hearing decision (Tr. 8-11), but the

1Plaintiff received a Graduate Equivalency Degree (Tr. 45).

2

Appeals Council denied it (Tr. 1-6).
Smith claims that the opinion of the ALJ is not supported
by substantial evidence.

Specifically, Smith alleges that:

(1)

The ALJ’s residual functional capacity (hereinafter RFC)
assessment is incomplete; (2) the ALJ failed to conduct a full
and fair hearing; and (3) the ALJ’s questions to the Vocational
Expert (hereinafter VE) did not properly include all of her
impairments (Doc. 15).
these claims (Doc. 18).

Defendant has responded to—and denies—
The relevant evidence of record

follows.2
On February 26, 2010, Smith was examined at the Holifield
Clinic for a week-long headache; she suffered no vomiting,
nausea, or dizziness (Tr. 317-20).

Her medications at that time

included Phenergan3 with codeine, Lortab,4 and Bupap5 (Tr. 317).
Toradol6 was prescribed (Tr. 318).
On April 25, 2010, Smith went to Alabama Neurology & Sleep
Medicine, complaining of recurring, throbbing headaches, located

2As Smith’s asserted disability onset date is August 12, 2010,

the Court will not review evidence pre-dating that by a long period.
3Phenergan is used as a sedative, sleep aid, or to treat nausea,

vomiting, or pain. http://www.drugs.com/phenergan.html
4Lortab is a semisynthetic narcotic analgesic used for “the

relief of moderate to moderately severe pain.” Physician's Desk
Reference 2926-27 (52nd ed. 1998).
5Bupap combines acetaminophen with a sedative to treat tension

headaches, decrease anxiety, and cause relaxation. See
http://www.webmd.com/drugs/2/drug-15929/bupap-oral/details
6Toradol is prescribed for short term (five days or less)

management of moderately severe acute pain that requires analgesia at
the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998).

3

in her bifrontal and occipital lobes; Topomax,7 Valium,8
Treximet,9 and Imitrex10 were prescribed (Tr. 325).

An MRI of

the brain, several weeks later, was essentially unremarkable
(Tr. 327).
On November 8, 2010, Plaintiff went to the West Alabama
Mental Health Center (hereinafter WAMHC) for depression
accompanied by crying episodes and auditory and tactile
hallucinations (see generally Tr. 336-48).

On November 30,

Smith reported continued anxiety and depression, though tactile
hallucinations had lessened (Tr. 342).

On December 3, a

Psychiatrist approved a diagnosis of major depressive disorder,
with a single episode with psychotic features, as well as
migraines and hypertension; it was noted that although her
current Global Assessment of Functioning (hereinafter GAF) was
55,11 her highest GAF over the past year had been 8512 (Tr. 343).

7Topomax is used in the treatment of migraine headaches.

Physician's Desk Reference 2378-79 (62nd ed. 2008).
8Error!
 Main
 Document
 Only.Diazepam, better known as Valium, is a

class IV narcotic used for treatment of anxiety. Physician's Desk
Reference 2765-66 (62nd ed. 2008).
9Treximet contains naproxen and sumatriptan, used to relieve

headaches and migraine symptoms. http://www.webmd.com/drugs/2/drug150380/treximet-oral/details
10Imitrex is “indicated for the acute treatment of migraine

attacks with or without aura.” Physician's Desk Reference 1036-37(52nd
ed. 1998).
11“A GAF score between 51-60 indicates “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).” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 32 (4th ed. 1994).

4

On December 14, 2010, Smith was feeling worse physically and her
depression continued (Tr. 406).

On January 20, 2011, Plaintiff

had a severe migraine but was in a better mood (Tr. 405).
On December 22, 2010, Smith went to the Greene County
Hospital Physicians Clinic complaining of depression, anxiety,
Pristiq13 was prescribed.

and other problems (Tr. 350-51).

On January 11, 2011, Joanna Koulianos, a non-examining
Psychologist reviewed the evidentiary record in existence at
that time and indicated that Smith suffered from a major
depressive disorder, experiencing a single episode with
psychotic features (Tr. 352-65).

The Psychologist suggested

that she would have mild restrictions of daily activities and
moderate difficulties in maintaining social functioning and
maintaining concentration, persistence or pace.

On that same

date, Koulianos completed a mental RFC assessment, indicating
that Plaintiff was moderately limited in her ability to
understand, remember, and carry out detailed instructions (Tr.
366-69).

She would also be moderately limited in maintaining

attention and concentration for extended periods, interacting
appropriately with the general public, accepting instructions

12

A GAF of 81 to 90 indicates that the individual has “minimal
symptoms, good functioning in all areas, [is] interested and involved
in a wide range of activities, socially effective, generally satisfied
with life, [with] no more than everyday problems or concerns.” See
https://depts.washington.edu/washinst/Resources/CGAS/GAF%20Index.htm
13Pristiq is used in treating depression and anxiety.

http://www.webmd.com/drugs/2/drug-150251/pristiq-oral/detail

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and responding appropriately to criticism from supervisors, and
responding appropriately to changes in the work setting.
On March 3, 2011, Dr. Ronnie T. Chu examined Plaintiff who
complained of intermittent migraine headaches, primarily on the
right (Tr. 371-91).

The Doctor noted normal gait, no motor

weakness or sensory deficits; grip was within normal limits.
Plaintiff had good muscle bulk without atrophy and good fine
motor and gross motor movements.
On February 4, 2011, Smith went to WAMHC, claiming anxiety
and depression and that Pristiq was only minimally helpful; she
stated that she was not currently on medications (Tr. 413-15).
Prescriptions for Prozac,14 Vistaril,15 and Trazodone16 were made.
On February 23, 2011, Smith reported improvement with the
medications; sleep and appetite had improved

(Tr. 404).

Smith

was still improving on March 24, 2011 though there had been some
episodes of depression and anxiety; social activities had
increased (Tr. 403).

On May 6, Plaintiff reported that she was

sleeping better; her thoughts were logical, her mood neutral,
and her affect was full and appropriate (Tr. 409-12).

On June

8, 2011, Smith reported that her depression was not as

14Prozac is used for the treatment of depression.

Physician's
Desk Reference 859-60 (52nd ed. 1998).
15Vistaril is used to treat anxiety and tension and may be used to

control nausea and vomiting. http://www.drugs.com/vistaril.html
16Trazodone is used for the treatment of depression.

Physician's
Desk Reference 518 (52nd ed. 1998).

6

significant and that her appetite and sleeping were improving
(Tr. 402).

On August 17, 2011, the Psychiatrist noted overall

improvement though intermittent depression occurred; she
complained that she had no motivation, crying spells, and
tactile hallucinations (Tr. 441-43).

On September 22, 2011,

Smith reported sleep and appetite were not as good, though
stress was about the same; she reported a panic attack since her
previous examination and visual hallucinations (Tr. 433-35).
Two days later, Plaintiff reported auditory hallucinations (Tr.
432).

On October 19, Plaintiff reported doing well and not

feeling as stressed; she had had no depression since starting
her medication (Tr. 438-41).

Her diagnosis was major depressive

disorder and a panic disorder with agoraphobia (Tr. 469).

On

November 8, Smith reported an inability to leave her home
because of excessive worry, stress, and sadness; the therapist
talked with her about relaxation techniques (Tr. 429).
On July 5, 2011, Smith saw Dr. Hodge at Holifield Clinic,
complaining of headaches and that her Topomax was not working
(Tr. 446-49).

She was seen on February 9, 2012, complaining of

sinus congestion and sneezing and some right knee pain due to a
motor vehicle accident (Tr. 452-54).
On January 18, 2012, Plaintiff told WAMHC that she was
having both auditory and visual hallucinations; she reported
less than full compliance with her medications, resulting in

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nervousness (Tr. 466-67).

Risperdal17 was prescribed.

On

February 17, Smith reported being tired and stressed (Tr. 459).
On April 18, Plaintiff was anxious, depressed, and was still
hallucinating, but acknowledged that she was not taking her
medications consistently; the Psychiatrist noted that she does
well when she is compliant with her treatment regimen (Tr. 478,
480, 484).

On May 14, Smith was sad, nervous, slept all of the

time, and lacked any energy (Tr. 476).

On June 18, Plaintiff

reported eating and sleeping better though she had some
depression episodes (Tr. 490, 495-97).

On July 16, Smith was

less depressed, interacting better, and getting out more; she
was also medication compliant (Tr. 486, 494).

Appetite was good

and she was sleeping well; her hallucinations had stopped.

She

did get anxious when in crowds.
On July 18, 2012, Plaintiff reported to WAMHC that she was
sad and anxious (Tr. 528).

On August 30, she said that her

medications were working well (Tr. 526).

On September 27, Smith

was doing well though stressed and not sleeping well (Tr. 523).
On October 2, the Psychiatrist noted that Smith stated that she
was less depressed and less anxious though she had trouble
sleeping; she was taking her medications as prescribed and had
had only one panic attack (Tr. 519-20, 522).

On November 12,

17Risperdal is used “for the management of the manifestations of

psychotic disorders.”
1998).

Physician's Desk Reference 1310-13 (52nd ed.

8

Plaintiff reported medication compliance and fewer
hallucinations (Tr. 515-16).

On January 4, 2013, Smith reported

that she had not had auditory or visual hallucinations in six
months or tactile hallucinations in three months (Tr. 513-14).
On January 25, Plaintiff reported medication compliance and
doing better though she still had days of depression and
anxiety; she had had no panic attacks or psychotic episodes (Tr.
505-08, 512).
This concludes the Court’s summary of the evidence.
Smith’s first claim in bringing this action is that the
ALJ’s RFC assessment is incomplete in that it ignores the impact
of all of her impairments (Doc. 15, pp. 2-5).

Plaintiff goes on

to complain that the ALJ did not consider the combination of all
of her impairments, that he “cherry-picked” the evidence, that
he ignored her treatment of panic disorder with agoraphobia, and
that he failed to consider her diagnoses of irritable bowel
syndrome and fatigue.
The Court notes that the ALJ is responsible for determining
a claimant’s RFC.

20 C.F.R. § 404.1546 (2014).

That decision

cannot be based on “sit and squirm” jurisprudence.
Heckler, 734 F.2d 513, 518 (11th Cir. 1984).

Wilson v.

However, the Court

also notes that the social security regulations state that
Plaintiff is responsible for providing evidence from which the
ALJ can make an RFC determination.

9

20 C.F.R. § 404.1545(a)(3).

In his determination, the ALJ found Smith to have the RFC
to perform light work except that she cannot
climb ladders, ropes or scaffolds; she cannot
work at unprotected heights; she is limited to
simple, routine and repetitive tasks in an
environment that does not involve interaction
with the general public; and she should work in a
stable, predictable environment where there are
minimal changes in the routine.
(Tr. 20).18
Plaintiff has claimed that the ALJ failed to consider the
combined effects of Plaintiff's impairments as he is required to
do.

It is true that "the Secretary shall consider the combined

effect of all of the individual's impairments without regard to
whether any such impairment, if considered separately, would be
of such severity."

42 U.S.C. § 423(d)(2)C).

The Eleventh

Circuit Court of Appeals has noted this instruction and further
found that "[i]t is the duty of the administrative law judge to
make specific and well-articulated findings as to the effect of
the combination of impairments and to decide whether the

18“Light work involves lifting no more than 20 pounds at a time

with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b)
(2014).

10

combined impairments cause the claimant to be disabled."

Bowen

v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984); see also Reeves
v. Heckler, 734 F.2d 519 (11th Cir. 1984); Wiggins v. Schweiker,
679 F.2d 1387 (11th Cir. 1982).
In his decision, the ALJ specifically noted that Smith did
“not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1” (Tr.
18).

This language has been upheld by the Eleventh Circuit

Court of Appeals as sufficient consideration of the effects of
the combinations of a claimant's impairments.

Jones v.

Department of Health and Human Services, 941 F.2d 1529, 1533
(11th Cir. 1991) (the claimant does not have “an impairment or
combination of impairments listed in, or medically equal to one
listed in Appendix 1, Subpart P, Regulations No. 4").
Smith also asserts that the ALJ “cherry-picked” the
evidence, using only that which supported his conclusions (Doc.
15, p. 5).

The Court notes that Plaintiff fails to point to any

evidence in making this assertion and finds no support for it,
noting the following reports by Smith and her physicians:
On November 8, 2010, Plaintiff went to the WAMHC for
depression accompanied by crying episodes and auditory and
tactile hallucinations (see generally Tr. 336-48).
On February 4, 2011, Smith admitted that she was not
currently on medications (Tr. 413-15). On February 23, she
reported improvement with the medications; sleep and

11

appetite had improved (Tr. 404).
On March 3, Dr. Chu noted normal gait, no motor
weakness or sensory deficits, good muscle bulk without
atrophy, good fine motor and gross motor movements, and
grip was normal (Tr. 371-91).
On March 24, Plaintiff reported episodes of depression
and anxiety but social activities had increased (Tr. 403).
On May 6, Plaintiff reported that she was sleeping
better; her thoughts were logical, her mood was neutral,
and her affect was full and appropriate (Tr. 409-12).
On June 8, Smith’s depression was not as significant;
her appetite and sleeping were improving (Tr. 402).
On August 17, a Psychiatrist noted overall improvement
though intermittent depression occurred; Smith claimed that
she had no motivation, crying spells, and tactile
hallucinations (Tr. 441-43).
On September 22, Smith reported sleep and appetite
were not as good, though stress was about the same; she
reported a panic attack and visual hallucinations in the
past month (Tr. 433-35).
On October 19, Plaintiff was doing well and not
feeling as stressed; she had had no depression since
starting her medication (Tr. 438-41).
On November 8, Smith reported an inability to leave
her home because of excessive worry, stress, and sadness
(Tr. 429).
On January 18, 2012, Plaintiff told WAMHC that she was
having both auditory and visual hallucinations; she
reported less than full compliance with her medications,
resulting in nervousness (Tr. 466-67).
On April 18, Plaintiff was anxious, depressed, and
hallucinating, but was not taking her medications
consistently; the Psychiatrist noted that she did well when
she was compliant with her treatment regimen (Tr. 478, 480,
484).
On May 14, Smith was sad, nervous, slept all of the
time, and lacked energy (Tr. 476).
On June 18, Plaintiff reported eating and sleeping
better though she had some depression (Tr. 490, 495-97).
On July 16, Smith was less depressed, interacting
better, and getting out more; she was also medication
compliant (Tr. 486, 494). Appetite was good and she was
sleeping well; her hallucinations had stopped.
On July 18, 2012, Plaintiff was sad and anxious (Tr.
528).
On August 30, she said that her medications were
working well (Tr. 526).

12

On September 27, Smith was doing well though stressed
and not sleeping well (Tr. 523).
On October 2, Smith was less depressed and anxious
though she had trouble sleeping; she was taking her
medications as prescribed and had had only one panic attack
(Tr. 519-20, 522).
On November 12, Plaintiff reported medication
compliance and fewer hallucinations (Tr. 515-16).
On January 4, 2013, Smith reported that she had not
had auditory or visual hallucinations in six months or
tactile hallucinations in three months (Tr. 513-14).
On January 25, Plaintiff reported medication
compliance and doing better though she still had days of
depression and anxiety; she had had no panic attacks or
psychotic episodes (Tr. 505-08, 512).
This evidence fairly demonstrates that Plaintiff’s symptoms have
caused highs and lows in her daily life.

However, there are

highs along with the lows in this two-year summary.

“The law

defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.”
404.1505(a) (2014).

20 C.F.R. §

By her own statements to care providers,

Smith has not met the one-year requirement.

The Court also notes a recurring theme in the medical
evidence that Smith does better when she takes her medications
as ordered.

Social Security regulations state that “[i]n order

to get benefits, you must follow treatment prescribed by your
physician if this treatment can restore your ability to work.”

13

20 C.F.R. § 1530(a) (2014).

The regulation goes on to state

that “[i]f you do not follow the prescribed treatment without a
good reason, we will not find you disabled.”
404.1530(b) (2014).

20 C.F.R. §

The Court notes that the medical records

clearly note repeated noncompliance.
Smith also asserts that the ALJ ignored her treatment of
panic disorder with agoraphobia, and that he failed to consider
her diagnoses of irritable bowel syndrome and fatigue.

The

Court notes that the evidence shows that although a diagnosis of
panic disorder with agoraphobia exists in the record, her
psychiatrist specifically noted that Plaintiff was non-compliant
with her medications (Tr. 467, 484).

Furthermore, the treatment

records show that Plaintiff’s mental health had improved, she
was more socially active, and she was experiencing fewer panic
attacks.

With regard to her fatigue and irritable bowel

syndrome, the Court notes the lack of medical evidence regarding
these impairments, pointing to Plaintiff’s Fact Sheet (Doc. 14)
giving two page references each for the separate impairments,
only one of which comes after her alleged onset date.
In summary, though Smith asserts multiple reasons why the
ALJ failed to properly assess her RFC, there is no medical
support for them.

This claim is without merit.

Plaintiff next claims that the ALJ failed to conduct a full
and fair hearing.

She specifically asserts that the ALJ should

14

have ordered a psychiatric consultative examination (Doc. 15,
pp. 5-6).

The Eleventh Circuit Court of Appeals has required

that "a full and fair record" be developed by the Administrative
Law Judge even if the claimant is represented by counsel.
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
The Court notes that medical records from WAMHC number more
than one hundred pages and span more than two years’ time in
fairly regular installments.

The Court finds that the evidence

within those records, especially considering Plaintiff’s own
statements of decreasing symptoms and ailments when she complied
with her medical regimen, was sufficient for the ALJ to have
made a decision regarding Smith’s mental impairments.

This

claim lacks merit.
Plaintiff’s final claim is that the ALJ’s questions to the
VE did not properly include all of her impairments.

She

specifically references her panic attacks with agoraphobia
diagnosis and the ALJ’s failure to consider the side effects of
her medications (Doc. 15, pp. 7-8).

The Eleventh Circuit Court

of Appeals has held that an ALJ's failure to include severe
impairments suffered by a claimant in a hypothetical question to
a vocational expert to be reversible error where the ALJ relied
on that expert's testimony in reaching a disability decision.
Pendley v. Heckler, 767 F.2d 1561 (11th Cir. 1985).

The Court has already discussed Smith’s panic attacks and

15

finds that no further discussion is warranted here.
With regard to her medication side effects, Plaintiff notes
that “the ALJ’s decision is, for the most part, silent” (Doc.
15, p. 7).

What Plaintiff fails to acknowledge, however, is

that the ALJ specifically found the following:

“While the

claimant testified she experiences lightheadedness and frequent
urination secondary to her hypertension and medications, there
is no documentary evidence showing she has related these
symptoms to her treating physicians on a recurring basis,
suggesting that they do not occur with the frequency alleged”
(Tr. 22).

Smith fails to point to anything in the record that

contradicts this finding.

This claim lacks merit.

Plaintiff has raised three claims in bringing this action.
They are all without merit.

Upon consideration of the entire

record, the Court finds "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Perales, 402 U.S. at 401.

Therefore, it is ORDERED that the

Secretary's decision be AFFIRMED, see Fortenberry v. Harris, 612
F.2d 947, 950 (5th Cir. 1980), and that this action be
DISMMISSED.

Judgment will be entered by separate Order.

DONE this 6th day of May, 2015.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

16