Gill v. Colvin

Filing 15

Order the decision of the Commissioner of Social Security denying Plaintiffs claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 7/28/2016. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
BREANNA GILL,

*
*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 15-00388-B

ORDER
Plaintiff
judicial
Social

Breanna

review

Security

of

a

Gill

(hereinafter

final

denying

decision

her

claim

of

for

“Plaintiff”)
the

seeks

Commissioner

supplemental

of

security

income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381,

et

seq.

On

June

13,

2016,

the

parties

waived

oral

argument and consented to have the undersigned conduct any and
all proceedings in this case.

(Docs. 11, 12).

Thus, the action

was referred to the undersigned to conduct all proceedings and
order

the

entry

of

judgment

in

accordance

with

636(c) and Federal Rule of Civil Procedure 73.

28

U.S.C.

§

Upon careful

consideration of the administrative record and the memoranda of
the

parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner be AFFIRMED.
I.

Procedural History
Plaintiff filed her application for benefits on April 26,

2012.

(Tr. 182).

Plaintiff alleged that she has been disabled

since January 1, 2011, due to “bipolar.”
Plaintiff’s
request,

she

applications

was

granted

were

an

(Id. at 199).

denied

and

administrative

upon

timely

hearing

before

Administrative Law Judge Vincent P. Intoccia (hereinafter “ALJ”)
on October 23, 2013.

(Id. at 93).

Plaintiff attended the

hearing with her counsel and provided testimony related to her
claims.
at

the

(Id. at 96).
hearing

and

A vocational expert (“VE”) also appeared
provided

testimony.

(Id.

at

107).

On

January 31, 2014, the ALJ issued an unfavorable decision finding
that Plaintiff is not disabled.

(Id. at 89).

The Appeals

Council denied Plaintiff’s request for review on June 17, 2015.
(Id. at 1-2).

Therefore, the ALJ’s decision dated January 31,

2014, became the final decision of the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

agree that this case is now ripe for judicial review and is
properly before this Court pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3).
II.

Issues on Appeal
1.

Whether
the
ALJ
erred
in
giving
substantial weight to the opinions of
non-examining, State Agency physician,
Dr. Harold R. Veits, M.D.?

2

2.

Whether the ALJ’s mental RFC assessment
is supported by substantial evidence?

3.

Whether the ALJ erred in failing to
consider the side effects of Plaintiff’s
medications?

III. Factual Background
Plaintiff was born on
years

of

age

at

October 23, 2013.

the

January 29, 1993, and was

time

of

her

(Tr. 93, 96, 195).

administrative

twenty

hearing

on

Plaintiff testified that

she dropped out of high school in the ninth grade but is working
on her GED.

(Id. at 96).

Plaintiff last worked as a waitress

from July 2010 to January 2011.
ever had.1
At
treated

(Id. at 97, 200, 206).

her
at

It is the only job that she has

hearing,
West

Plaintiff

Alabama

testified

Mental

that

Health

Center

she

is

being

(“WAMH”)

for

bipolar disorder, for which she takes medication and receives
therapy.

(Id.

at

97-98).

Plaintiff

testified

that

she

experiences drowsiness as a side effect from Depakote, but it
has helped balance and stabilize her mood.2

(Id. at 100).

Plaintiff testified that her biggest obstacle to working is
1

The vocational expert testified that Plaintiff’s past work did
not constitute substantial gainful activity.
(Tr. 107).
Plaintiff testified that she has never received vocational
rehabilitation. (Id. at 98).

2

Plaintiff testified that she takes Depakote at night before she
goes to bed, and it causes her to sleep until 1:00 or 2:00 p.m.
the next day.
In addition, she experiences one hour of
grogginess after she wakes. (Tr. 99-100).

3

that, when she gets around more than three people, she gets
nervous; her heart starts racing; her hands start shaking; she
feels like she is having a panic attack; and she shuts down.
(Id.

at

103).

Also,

she

has

trouble

concentrating

and

remembering and cannot watch a two hour movie or read for long
periods of time.

(Id. at 104, 106).

Plaintiff testified that

she lives with her mom, stepdad and brothers, and that she could
not be around people if she worked and, while she could take
instructions from a supervisor, she would forget them.

(Id. at

96, 106).
IV.

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

3

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.
3

must

be

Brown v.

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
4

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a 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); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in 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.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

Social

sequential

5

see

also

20

Security

evaluation

C.F.R.

§§

regulations
process

for

determining if a claimant has proven his disability. 4

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since April 24,
2012,

the

application

date,

and

that

she

impairments of bipolar disorder and obesity.5

has

the

(Tr. 74).

severe
The ALJ

4

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

5

The ALJ also found Plaintiff’s hypertension, asthma, and
headaches to be non-severe.
(Tr. 75-76).
Plaintiff has not
raised any issue related to these conditions. (Doc. 8 at 2; Tr.
75-76, 214).
Therefore, the Court’s discussion is limited to
Plaintiff’s alleged mental impairments.

6

further found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of
the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1.
The

(Id. at 76).

ALJ

concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
light work, except that Plaintiff “can frequently balance and
can occasionally stoop, knee[l], crouch, crawl and climb ramps
or stairs, but she cannot climb ladders, ropes or scaffolds.
She should avoid concentrated exposure to extreme cold, extreme
heat,

wetness,

[and]

humidity;

should

avoid

concentrated

exposure to fumes, odors, dusts, gasses, poor ventilation, etc.;
and

should

machinery,

avoid

all

exposure

unprotected

interact/respond

to

heights,

appropriately

hazards
etc.;”

with

such
she

as
“is

supervisors,

hazardous
able

to

co-workers,

customers, and the general public, but such interaction should
be causal and non-confrontational and feedback from supervisors
should be supportive;” “she is able to respond appropriately to
work

pressures

in

the

usual

work

setting;”

“she

is

able

to

respond appropriately to changes in routine work settings but
such

changes

should

be

infrequent

and

gradually

introduced;”

“she is able to use judgment in simple 1-2 step work related
decisions, but cannot use judgment in detailed or complex work
related decisions;” and “she is able to understand, remember,

7

and

carry

out

understand,

simple

remember,

instructions.”

1-2
and

step
carry

instructions,
out

but

detailed

or

cannot
complex

(Tr. 78).

The ALJ also determined that while Plaintiff’s medically
determinable impairments could reasonably be expected to produce
the alleged symptoms, her statements concerning the intensity,
persistence and limiting effects of the alleged symptoms were
not credible for the reasons explained in the decision.

(Id. at

80).
The ALJ found that Plaintiff has no past relevant work.
(Id. at 88).
concluded
capacity

However, utilizing the testimony of a VE, the ALJ

that
for

considering

a

range

of

Plaintiff’s

light

work,

residual
as

well

functional

as

her

age,

education and work experience, there are jobs existing in the
national economy that Plaintiff is able to perform, such as
“garment sorter,” “inserter,” and “hand finisher,” all of which
are classified as light and unskilled.

(Id. at 89).

ALJ concluded that Plaintiff is not disabled.
The

Court

now

considers

the

foregoing

(Id.).
in

light

record in this case and the issues on appeal.
1.

Issues
a.

Whether the ALJ erred in giving
substantial weight to the opinions
of
non-examining,
State
Agency
physician, Dr. Harold R. Veits,
M.D.?

8

Thus, the

of

the

In this case, Plaintiff argues that the ALJ erred in giving
substantial weight to the opinions of non-examining State Agency
physician, Dr. Harold R. Veits, M.D., set forth in a Psychiatric
Review Technique assessment, while at the same time rejecting
the opinions of consultative psychologist, Dr. Donald Blanton,
Ph.D.

(Doc. 8 at 4, 6; Tr. 115-21, 652).

The Commissioner

counters that the ALJ afforded the proper weight to the opinions
of

Dr.

Veits

and

Dr.

Blanton

that

were

consistent

with

the

substantial evidence in the case and properly discredited the
opinions

and

findings

that

were

substantial evidence in the case.

inconsistent

with

(Doc. 9 at 10).

the

Having

carefully reviewed the record in this case, the Court agrees
that Plaintiff’s claim is without merit.
As part of the disability determination process, the ALJ is
tasked

with

examining,

weighing
and

the

opinions

non-examining

and

findings

physicians.

In

of

treating,

reaching

a

decision, the ALJ must specify the weight given to different
medical opinions and the reasons for doing so.

See Winschel v.

Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
The failure to do so is reversible error.

See Williams v.

Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009).
When

weighing

the

opinion

9

of

a

treating

physician,

the

ALJ

must give the opinions “substantial weight,” unless good

cause exists for not doing so.

Costigan v. Commissioner, Soc.

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4
(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).

The opinion of “a

one-time examining physician — or psychologist,” on the other
hand,

is

not

physician.

entitled

to

the

same

deference

as

a

treating

Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,

2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160).

An ALJ is also “required to consider the

opinions of non-examining state agency medical and psychological
consultants because they ‘are highly qualified physicians and
psychologists who are also experts in Social Security disability
evaluation.’”
(11th

Cir.

Milner v. Barnhart,
2008)

404.1527(f)(2)(i)).
examining

sources

examining sources.”

275 Fed. Appx. 947, 948

(unpublished)
“The

when

ALJ

they

may
do

(citing
rely

not

on

20

C.F.R.

opinions

conflict

with

of

§
non-

those

of

Id. (citing Edwards v. Sullivan, 937 F.2d

580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining

physicians,

testimony

any

of

medical

good

cause

source

exists

when

unsupported by the evidence of record.

10

it

to

is

discredit

contrary

to

the
or

Phillips v. Barnhart,

357 F.3d 1232, 1240 (11th Cir. 2004).
exist

where

a

doctor’s

opinions

“Good cause may also

are

merely

conclusory,

inconsistent with the doctor’s medical records, or unsupported
by objective medical evidence.”

Hogan v. Astrue, 2012 U.S.

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”
764

F.2d

834,

835

(11th

Cir.

1985)

Sryock v. Heckler,

(per

curiam)

(citation

omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,

212

(11th

Cir.

2010)

(The

ALJ

may

reject

any

medical

opinion if the evidence supports a contrary finding.).
In the present case, the record shows that that Plaintiff
was

treated

at

West

Alabama

Mental

Health

(WAMH)

for

depression/bipolar disorder from approximately December 2007 to
January

2014.

6

(Id.

at

371-799).

On

September

22,

2008,

Plaintiff was taken to the emergency room at Hillcrest Hospital
following a suicide attempt when she was fifteen years old.
(Id. at 256).

7

Two days later, she was admitted to Hillcrest

6

From 2004 to 2013, Plaintiff was also treated by her family
physician, Dr. Ronnie Chu, M.D., for various physical ailments,
as well as bipolar disorder.
(Tr. 307-67, 658-71).
Dr. Chu
routinely refilled Plaintiff’s prescriptions for Zyprexa and
Depakote and performed routine lab work.
(Id. at 315-67, 65969).

7

Plaintiff’s therapist’s notes from WAMH in 2007 and 2008 reflect
that she was having problems with school, depression, and selfmutilation. (Tr. 387, 541-50).

11

Hospital

for

psychiatric

treatment.

(Id.).

During

her

hospitalization, Plaintiff reported feeling very depressed and
hopeless for approximately two years.

(Id. at 256-57).

She

received group and individual therapy and medication for six
days but was discharged against medical advice on September 30,
2008, with the diagnoses of depression, NOS, impulse control
disorder, and oppositional defiant disorder. 8

(Id. at 259, 262-

63, 264).
Following
resumed

her

treatment

hospitalization
at

WAMH.

In

at

March

Hillcrest,
of

2010,

Plaintiff
Plaintiff’s

therapist discontinued her treatment, noting that Plaintiff had
“missed [the] last 4 appointments.”

(Id. at 459).

On August 4, 2010, at age seventeen, Plaintiff was again
admitted for psychiatric evaluation at UAB Hospital because she
was talking out of her head, behaving irrationally, and not
sleeping. 9

(Id. at 271, 274).

Dr. William E. Fialkowski, M.D.,

performed a mental status examination and noted that Plaintiff
reported drinking alcohol socially and smoking marijuana on a
nightly basis and that recent stressors included family conflict
and her boyfriend being arrested.

(Id.).

8

The record shows that Plaintiff’s mother took her home against
medical advice after Plaintiff was involved in an altercation
with another patient on the unit. (Tr. 264).

9

At that time, Plaintiff reported two previous suicide attempts.
(Tr. 271).

12

While at UAB Hospital, Plaintiff was also treated by Dr.
James

T.

Cullinan,

D.O.,

who

diagnosed

her

disorder and prescribed Zyprexa and Dapakote.

with

bipolar

I

(Id. at 274).

Dr. Cullinan’s notes reflect that Plaintiff was “cheeking” (not
being compliant with) her medication.

(Id. at 276).

As a

result, he changed the delivery method of her medication and
observed that her manic episodes were gradually beginning to
show

improvement,

medication.

with

no

adverse

(Id. at 275-76).

side

effects

from

the

Dr. Cullinan specifically noted

that Plaintiff tolerated her medication well, that she was no
longer easily agitated, that she was calm, that her mood was
stable, that she was more organized, that her sleep and appetite
were improved, that she was less withdrawn and more interactive
with her peers, and that she was improving as expected and doing
well.

(Id. at 276-85).

Cullinan

found

that

Noting “significant progress,” Dr.

Plaintiff’s

longer required hospitalization.
Plaintiff

in

“good”

condition

manic/depressive
(Id. at 277).
on

August

17,

symptoms

no

He discharged
2010,

after

a

thirteen-day hospitalization, with instructions to abstain from
alcohol and illicit drugs and to follow up with WAMH.

(Id. at

276-77).
On August 24, 2010, Plaintiff returned for treatment at
WAMH and reported that she was “feeling much better.”
457).

On

September

3,

2010,

13

Plaintiff’s

therapist

(Id. at
assessed

Plaintiff has having “no problem” with “ability to work.”
at 402).
she

was

(Id.

From October to December 2010, Plaintiff reported that
doing

well

on

her

medication,

that

she

was

coping

better, that she had no symptoms of depression, that she was
happy, that she was “stable,” that she was “doing good,” that
she was working in a restaurant and that work was “going well,”
that

the

sleeping

medications
well,

and

were

that

helping,

she

effects with her medications.

was

that

having

she
no

was

eating

problems

or

and
side

(Id. at 451, 619, 621, 623-24).

Plaintiff’s alleged onset date in this case is January 1,
2011.

(Id. at 195).

The record reflects that from January to

May 2011, Plaintiff’s therapist from WAMH regularly noted that
Plaintiff’s mental status examination was normal, with decreased
or no noted anxiety or depression. 10

(Id. at 444, 447).

From

August to November 2011, Plaintiff’s mental status evaluations
were

completely

normal

with

little

or

no

depression,

and

Plaintiff reported that she was compliant with her medication
and “doing fine.”

(Id. at 438, 440-42).

Plaintiff’s progress was noted as “moderate.”
10

In December 2011,
(Id. at 392).

In April and May 2011, Plaintiff reported that she was being
compliant with her medication and that “she has done well” since
her hospitalization in August 2010.
(Tr. 443-44).
Plaintiff
did report experiencing sedation as a side effect of her
medication.
(Id. at 443).
Plaintiff reported some depression
and anxiety but stated that she was working on her GED and had a
job but that her “work ha[d] been reduced to one day per week .
. . due to slow business.” (Id. at 443-44).

14

The following year, from January to May 2012, 11 Plaintiff’s
therapist at WAMH noted generally that Plaintiff was stable,
compliant with her medications, “doing fine,” and experiencing
only one side effect, weight gain, from her medication.
421-22, 427, 434, 436).

(Id. at

On May 10, 2012, Plaintiff’s therapist

noted that she “socializes with family and friends” and “reads
at her leisure.”

(Id. at 371-72).

From June to September 2012,

Plaintiff’s therapist noted that Plaintiff was “compliant with
meds,” “no side effects,” “doing well,” and that “[s]he reports
that meds are working fine,” and she is “doing fine.”
414, 416-17, 701-02, 705, 766).

(Id. at

In November 2012, Plaintiff

admitted that she was taking her medication “on and off” and
reported that, when she was on her medication, she was “doing
good” and less depressed, with less mood swings.

(Id. at 697).

Plaintiff continued treatment at WAMH in 2013 and in March
and April reported being compliant with her medications, “doing
good,” feeling less sad, having less mood swings, sleeping well,
and having no problems to report.
therapist

noted

that

she

was

(Id. at 686, 691).

“relaxed

11

and

open”

during

Her
her

On January 25, 2012, Plaintiff’s therapist at WAMH noted that
Plaintiff’s mental status evaluation was completely normal with
no depression.
(Tr. 438).
The therapist further noted,
“[patient] reports stability in today’s session and that she has
not had a psychotic episode in quite some time.” (Id. at 436).
Plaintiff’s goal was to “meet someone special and begin dating,”
and she reported that she had met someone and had begun the
dating process. (Id.).

15

session.

(Id. at 686).

However, the following month, Plaintiff

reported being off of her medications and being unstable.
at 684).

(Id.

From June to September 2013, Plaintiff reported that

she was again taking her medication and “doing well,” generally
sleeping well, not feeling anxious, sad, or depressed, that she
was stable, had no thoughts of harming herself, had no symptoms
of depression or mania, and was receiving “good report[s]” from
her psychiatrist.

(Id. at 673-76, 678, 681-82).

Plaintiff

reported that there were days that she was in a bad mood, but
she “ha[d] been taking her medications as prescribed,” and they
“help[ed] her manage her mood swings.”

(Id. at 674, 678).

On August 14, 2013, Plaintiff reported that she believed
that the medications may have been making her hair fall out. 12
(Id. at 676).

On October 9, 2013, two weeks before her hearing,

and in November 2013, after her hearing, Plaintiff reported to
her therapist that her sleep and appetite were “good,” that she
was having no side effects, that she was “doing fine,” and that
she was staying busy working on her GED.
787).

(Id. at 780, 782,

On November 13, 2013, approximately three weeks after her

hearing,

Plaintiff

reported

to

her

therapist

that

she

had

recently moved in with her boyfriend and was excited about her
12

The record shows that from January to August 2013, this is the
only side effect that Plaintiff reported.
She regularly and
consistently reported no side effects. (Tr. 724, 726, 731, 74142, 747).

16

new home, that she was taking her medications, that she was
having no side effects, that her mood had been stable for “the
past few weeks,” and that her sleep and appetite were “good.”
(Id. at 787).
In December 2013, Plaintiff continued to report that her
mood was stable and euthymic (normal, non-depressed), that her
sleep was “good,” that she was compliant with her medications,
and that she was experiencing no side effects.
796).

(Id. at 792,

The therapist noted her progress as “good.”

794).

On

January

22,

2014,

Plaintiff’s

(Id. at

therapist’s

notes

document a normal examination with reports of no depression and
“good sleep,” with “no[]” “current side effects.”
99).

(Id. at 798-

This is the last treatment note from WAMH in the record.
With

respect

to

the

expert

evidence

in

this

case,

the

record shows that, on August 15, 2012, Plaintiff was examined by
consultative psychologist, Dr. Donald W. Blanton, Ph.D., at the
request

of

Blanton

noted

excessive

the

Agency.
that

sleep,

(Id. at

Plaintiff
frequent

652).

reported

crying,

In

his

report,

experiencing

and

emotional problems about three days a week.

fairly

Dr.

anxiety,

significant

(Id. at 652-54).

Plaintiff and her mother also reported that Plaintiff had “highs
and low[s]” when she did not “take her medicines correctly,” but
her problems “dissipated” when she took her medicine; that she
was “better now;” that she was “not nearly as confused;” that

17

she

still

did

not

like

being

around

people;

and

that

her

medications caused her to sleep twelve to sixteen hours a day.
(Id. at 652-53).

Plaintiff and her mother further reported that

Plaintiff has no friends, with the exception of a boyfriend,
that she does some Facebook and internet activities, that she
loves to read, that she does not drink alcohol, and that she has
never

had

a

drug

or

alcohol

problem.

(Id.

at

653-54).

Plaintiff reported that she can shop and handle money and that
she cooks and cleans daily, occasionally to the extreme.

(Id.

at 654).
Dr.

Blanton’s

mental

status

examination

revealed

that

Plaintiff looked sad, that her insight was limited, that she was
very restless, that her legs trembled, that she was having some
“mild persecutory type fears” and “phobic type fear of social
events

and

driving,”

relationships.
Plaintiff’s

and

that

(Id. at 653).

affect

was

flat

she

was

obsessive

about

Dr. Blanton further found that
but

appropriate;

her

mood

was

normal; her energy was normal; her thoughts and conversation
were logical; her associations were intact; no confusion was
noted; she was alert and oriented to time, place, person, and
situation; her memory was consistent with her intellect, which
was

estimated

to

be

below

average;

and

her

judgment

considered fair for work and financial type decisions.
653-54).

Dr.

Blanton

diagnosed

18

Plaintiff

with

was

(Id. at

bipolar

I

disorder and opined that she “appears to have ongoing problems
with bipolar disorder,” and he encouraged her to continue her
mental health care.
a

Medical

Source

(Id. at 654).
Statement,

Dr. Blanton did not complete

and

he

assigned

no

functional

limitations as a result of Plaintiff’s bipolar disorder.
Two weeks later, on August 30, 2012, non-examining, State
Agency

psychiatrist,

Psychiatric

Review

Dr.

Harold

Technique

R.

Veits,

assessment

M.D.,
and

completed
opined

a

that

Plaintiff had only “mild” restrictions in activities of daily
living

and

“moderate”

difficulties

concentration, persistence, or pace.

in

social

functioning,

(Id. at 116).

Dr. Veits

also opined that Plaintiff was “not significantly limited” in
understanding and remembering short and simple instructions and
only

“moderately”

limited

detailed instructions.

in

understanding

and

remembering

(Id. at 118).

In addition to the foregoing medical evidence, the evidence
concerning

Plaintiff’s

activities

of

daily

living

shows

that

Plaintiff lived with her family until she moved in with her
boyfriend,

that

she

does

housework

daily,

including

washing

dishes, mopping, vacuuming, laundry, and cooking; she takes care
of several cats and dogs; she shops; she babysits; she fishes;
she dates; she drives; she takes care of her own personal care
needs; she can count change and handle money; she loves to read
books; and she socializes daily with family, plays board games,

19

talks

on

the

activities.

phone,

and

does

Facebook

and

other

internet

(Id. at 98, 100-03, 209-13, 654, 787).

As discussed above, Plaintiff argues that the ALJ erred in
rejecting the opinions of consultative psychologist Dr. Blanton,
while crediting the opinions of non-examining psychiatrist, Dr.
Veits.

However, a review of the ALJ’s decision reveals that he

only rejected Dr. Blanton’s opinions to the extent that they
were inconsistent with the record evidence in the case.
83-84).

Specifically,

the

ALJ

referred

to

Dr.

(Id. at
Blanton’s

observations that Plaintiff looked sad, and her affect was flat,
while at the same time finding her mood to be “normal.”
83).

(Id. at

Also, Dr. Blanton described Plaintiff as “very restless,”

while at the same time finding her energy level to be “normal.”
(Id.).

Last, the ALJ noted that, while Dr. Blanton assessed

Plaintiff with a GAF score of 50 (indicating serious symptoms),
the GAF score reflected Dr. Blanton’s assessment of Plaintiff on
only one day, and Dr. Blanton did not indicate that Plaintiff
had been or could be expected to be impaired for one continuous
year or more.13

(Id. 83-84).

13

The ALJ further noted that, because a GAF assessment considers
factors that are unrelated to a claimant’s physical or mental
impairments, such as unemployment, financial need, lack of
friends, etc., it is an unreliable indicator of a claimant’s
functioning one year later, and its use has been abandoned in
the new Diagnostic and Statistical Manual of Mental Disorders –
5th Edition (DSM-V). (Tr. 83-84).

20

Having reviewed Dr. Blanton’s report at length, the Court
finds that the ALJ correctly identified inconsistencies therein.
Furthermore, as noted by the ALJ, Dr. Blanton did not assign
Plaintiff any functional limitations.
Dr.

Blanton’s

findings

and

In fact, the majority of

opinions

support

the

ALJ’s

RFC

assessment that Plaintiff is capable of performing a range of
light work, with the stated restrictions. 14

Thus, Plaintiff’s

argument that the ALJ erred in rejecting Dr. Blanton’s opinions
is misplaced.
Plaintiff
significant

also

or

argues

that

substantial

the

weight

to

ALJ
the

erred

in

assigning

opinions

of

non-

examining State Agency psychiatrist, Dr. Harold R. Veits, M.D.
As discussed, Dr. Veits opined that Plaintiff had only “mild”
restrictions

in

activities

of

daily

living,

“moderate”

difficulties in social functioning, concentration, persistence,
14

As discussed, the ALJ’s RFC assessment included the following
restrictions
related
to
Plaintiff’s
mental
impairments:
Plaintiff can perform a range of light work, except that she “is
able to interact/respond appropriately with supervisors, coworkers, customers, and the general public, but such interaction
should be causal and non-confrontational and feedback from
supervisors should be supportive;” “she is able to respond
appropriately to work pressures in the usual work setting;” “she
is able to respond appropriately to changes in routine work
settings but such changes should be infrequent and gradually
introduced;” “she is able to use judgment in simple 1-2 step
work related decisions, but cannot use judgment in detailed or
complex work related decisions;” and “she is able to understand,
remember, and carry out simple 1-2 step instructions, but cannot
understand, remember, and carry out detailed or complex
instructions.” (Tr. 78).

21

or

pace,

was

remembering
moderately

not

short
limited

instructions. 15

significantly
and
in

simple

limited

in

understanding

instructions,

understanding

(Id. at 116, 118).

and

and

was

remembering

and
only

detailed

As the ALJ concluded, these

opinions are consistent with the medical evidence in this case,
detailed above, as well as

with Dr. Blanton’s findings that

Plaintiff’s mood and affect were normal, that her thoughts and
conversation were logical, that her associations were intact,
that she had no confusion, that she was alert and oriented, and
that her judgment was considered fair for work and financial
type decisions.

(Id. at 653-54).

Because Dr. Veits’ opinions

did not conflict with any credible finding or opinion of any
examining

physician,

weight.16

See Milner,

they

were

properly

given

significant

275 Fed. Appx. at 948.

15

Although the ALJ gave substantial weight to the majority of
Dr. Veits’ opinions, he rejected Dr. Veits’ opinion that
Plaintiff had one or two repeated episodes of decompensation.
The ALJ noted that the two events referenced by Dr. Veits,
namely the two hospitalizations, did not occur during the period
under consideration and did not meet the definition of
“repeated,” which requires three events within one year or an
average of once every four months, and only one of the events
met the definition of “extended duration,” which requires that
the event last at least two weeks. (Tr. 77, 120).

16

The Court further notes that, on October 14, 2013, nine days
before Plaintiff’s hearing, she was examined by Dr. David W.
Hodo, M.D., at the request of her attorney. Dr. Hodo completed
a Medical Source Opinion Form (Mental) opining that Plaintiff
had marked to extreme limitations in every functional capacity
referred to in the form.
(Tr. 769-72).
The ALJ rejected Dr.
Hodo’s opinion as “so inconsistent with the substantial evidence
22

Based on the foregoing, the Court finds that Plaintiff’s
claim that the ALJ erred in assigning substantial weight to the
opinions of non-examining physician, Dr. Veits, while rejecting
the

opinions

of

consultative

psychologist,

Dr.

Blanton,

is

without merit.
b.

Whether the ALJ’s mental RFC assessment
is supported by substantial evidence?

Plaintiff also argues that the ALJ erred in finding that
she has the mental residual functional capacity to perform a
range of light work, with the stated restrictions, because the
ALJ

failed

to

consider

functional abilities.
the

ALJ

merely

the

impact

of

(Doc. 8 at 2).

considered

her

her

depression

on

According to Plaintiff,

bipolar

disorder

and

did

factor in her depression when determining her mental RFC.
Commissioner

counters

that

the

her

ALJ

clearly

not
The

considered

Plaintiff’s depression as a component of her bipolar disorder
when considering her mental RFC and that substantial evidence
supports the ALJ’s RFC assessment.

(Doc. 9 at 9).

Having

carefully reviewed the record in this case, the Court finds that

and so contradictory of the claimant’s reports to her treating
sources, her admitted activities of daily living, and the
observations of her treating sources as to be entitled to no
weight.”
(Id. at 86). Plaintiff does not mention Dr. Hodo in
this appeal and has raised no issue related to his opinions or
the ALJ’s rejection thereof. Furthermore, based on the evidence
set forth above, the Court agrees with the ALJ’s assessment of
Dr. Hodo’s opinions.

23

Plaintiff’s claim is without merit.
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
404.1545.

See 20 C.F.R. §

Determinations of a claimant’s residual functional

capacity are reserved for the ALJ, and the assessment is to be
based upon all the relevant evidence of a claimant’s remaining
ability to work despite his or her impairments, and must be
supported by substantial evidence.
Supp.

2d

1323,

1331 (S.D.

Ala.

See Beech v. Apfel, 100 F.
2000)

(citing

20

C.F.R.

§

404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997)); Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10,
2012 WL 997222, *4 (M.D. Ala. March 23, 2012).
determined
claimant

the

bears

Plaintiff’s

residual

the

of

burden

Once the ALJ has

functional

demonstrating

capacity,

that

decision is not supported by substantial evidence.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).

the

the

ALJ’s

See Flynn v.
Plaintiff has

failed to meet her burden in this case.
As the ALJ noted, Plaintiff’s treatment providers described
her bipolar disorder as being characterized by cycles of mania
and depression (“highs and low[s]”).
652,

673,

681).

The

ALJ

thoroughly

(Tr. 82, 85, 276, 384,
discussed

Plaintiff’s

treatment records and, as he found, the records confirm that
Plaintiff’s

bipolar

disorder/depression

24

has

been

consistently

controlled with medication when she takes it. 17

(Id. at 295,

414, 416-17, 421-22, 434, 436, 438, 440-42, 444, 457, 619, 652,
673-78, 681-82, 686, 691, 697, 701-02, 705, 766, 780, 782, 787,
792,

796,

799).

Indeed,
on

Plaintiff

medication

shown

remarkable

has

consistently

improvement

while

essentially

normal

medication.

(Id. at 276, 278, 427, 434, 436, 438, 440-42, 444,

examinations

and

has

when

compliant

with

had
her

447, 450, 457, 468, 619, 623, 652, 701, 741, 782, 794, 796, 79899).
Moreover, Plaintiff’s activities of daily living belie her
claim that her bipolar disorder/depression is disabling and that
she cannot

perform any type of work.

As the ALJ indicated, the

evidence concerning Plaintiff’s activities of daily living shows
that

Plaintiff

vacuums,

does

does

housework

laundry,

cooks,

daily,
takes

washes

care

of

dishes,
animals,

mops,
shops,

babysits, fishes, dates, drives, takes care of her own personal
care needs, handles money, reads books, socializes with family
and friends, plays board games, talks on the phone, and does
Facebook and other internet activities.

(Id. at 98, 100-03,

209-13, 654).

17

Conversely, Plaintiff reported problems, including depression
and instability, when she was off of her medication. (Tr. 684,
697).

25

Having reviewed the record at length, the Court finds, as
did the ALJ, that Plaintiff’s prescribed medications have been
largely effective when taken as prescribed.

Indeed, none of

Plaintiff’s treating or examining medical sources has indicated
that her bipolar disorder/depression is debilitating when she is
compliant

with

her

medications.

Also,

the

evidence

of

Plaintiff’s activities of daily living are inconsistent with her
allegations that, when on her prescribed medication, she cannot
perform any type of work.

The Court finds that nothing in the

record contradicts the ALJ’s RFC assessment for a range of light
work,

with

the

stated

restrictions,

which

accommodate

any

limitations posed by her mental impairments.
Based on the evidence set forth in detail herein, the Court
finds that the substantial evidence in this case supports the
ALJ’s finding that Plaintiff can perform a range of light work,
with

the

stated

limitations.

restrictions

to

accommodate

her

mental

Accordingly, Plaintiff’s claim is without merit.
c.

Whether the ALJ erred in failing to
consider
the
side
effects
of
Plaintiff’s medications?

Last, Plaintiff argues that the ALJ erred in failing to
adequately consider the sedative side effect of her medications.
Specifically,

Plaintiff

argues

that

the

ALJ

ignored

evidence

that her medications cause her to sleep fourteen to sixteen
hours a day and to be groggy the next day.

26

(Doc. 8 at 6).

Having reviewed the record at length, as detailed above, the
Court finds that the ALJ did adequately consider Plaintiff’s
claim that the sedative side effect

from her medication was

debilitating and that the ALJ properly rejected that claim as
unsupported by the substantial evidence in the record.

(Tr. 79-

80).
As the ALJ found, the evidence of Plaintiff’s reports to
her

treating

medical

sources

that

she

was

experiencing

sedative side effect from her medication is sparse.

The Court’s

review of the record revealed only one such instance.
443).

a

(Id. at

In addition to this one report to her therapist at WAMH,

Plaintiff reported on one occasion to consultative psychologist
Dr.

Blanton

that

she

sleeps

twelve

to

sixteen

hours

a

day

because of her medication, 18 and she testified at the hearing
that her medication makes her “sleep a lot” and that she takes
her medicine at night before she goes to bed and does not wake
up until 1:00 or 2:00 p.m. the following day.
06, 653).

(Id. at 99, 105-

Notwithstanding these sporadic reports, the record

shows that Plaintiff repeatedly reported, when questioned by her
treating medical sources about whether she was experiencing side
effects from her medication, that her medications were working
well and that she was having no side effects.
18

(Id. at 276, 414,

In her Function Report to the Agency, Plaintiff stated that she
sleeps fourteen to sixteen hours a day. (Tr. 210).

27

451, 619, 623, 724, 726, 731, 741-42, 747, 766, 782, 787, 796,
799).
that

Based on the foregoing, the ALJ did not err in finding
the

alleged

sedative

side

effect

from

Plaintiff’s

medication was unsupported by the substantial evidence in the
record.
V.

Thus, Plaintiff’s claim must fail.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be AFFIRMED.
DONE this 28th day of July, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

28