Thomas v. Colvin
Filing
22
Order re: 1 Complaint filed by Natasha Thomas stating that 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 9/28/2016. Copies to parties. (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
NATASHA THOMAS,
*
*
*
*
*
*
*
*
*
*
*
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
CIVIL ACTION NO. 15-00393-B
ORDER
Plaintiff
judicial
review
Natasha
of
a
Thomas
final
(hereinafter
decision
of
“Plaintiff”)
the
seeks
Commissioner
of
Social Security denying her claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et seq., and 1381, et seq.
consented
to
have
the
proceedings in this case.
On June 8, 2016, the parties
undersigned
(Doc. 19).
conduct
any
and
all
Thus, the action was
referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.
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 June 19,
2012.
(Tr. 157) 1 .
since
January
Plaintiff alleged that she has been disabled
1,
2012
due
to
depression, [and] schizophrenia.”
Plaintiff’s
request,
she
Administrative
applications
was
Law
granted
Judge
illness,
chronic
(Id. at 156, 161).
were
an
denied
and
administrative
Michael
“ALJ”) on November 25, 2013.
“mental
L.
upon
timely
hearing
before
Brownfield
(Id. at 43).
(hereinafter
Plaintiff attended
the hearing with her counsel and provided testimony related to
her claims.
(Id. at 47).
A vocational expert (“VE”) also
appeared at the hearing and provided testimony.
(Id. at 59).
On February 25, 2014, the ALJ issued an unfavorable decision
finding that Plaintiff is not disabled.
(Id. at 31).
The
Appeals Council denied Plaintiff’s request for review on June
23, 2015.
(Id. at 4).
Therefore, the ALJ’s decision dated
February 25, 2014 became the final decision of the Commissioner.
Having
exhausted
her
administrative
timely filed the present civil action.
remedies,
(Doc. 1).
Plaintiff
The parties
waived oral argument on June 8, 2016 (Doc. 18), and agree that
this case is now ripe for judicial review and is properly before
1
When referencing the Social Security Transcript, the Court uses
the page numbers found on the transcript, rather than the page
numbers utilized by CM-ECF.
2
this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.
Issue on Appeal
1.
Whether the ALJ erred in rejecting the
opinions
of
Plaintiff’s
treating
psychiatrist, Dr. Sanjay Singh, M.D.,
Plaintiff’s consulting psychologist, Dr.
Terasa Davis, Psy.D., and Plaintiff’s
examining psychiatrist, Dr. David W.
Hodo, M.D., while at the same time
giving
significant
weight
to
the
opinions of non-examining, State Agency
psychologist, Dr. Gloria Roque, Ph.D.?
III. Factual Background
Plaintiff was born on September 27, 1971, and was forty-one
years
of
age
at
November 25, 2013.
the
time
of
her
(Tr. 43, 156).
administrative
hearing
on
Plaintiff testified that she
did not graduate from high school, but she received her GED.
(Id. at 48).
Plaintiff last worked in Syracuse, New York, for
seven
from
years,
August
2004
attendant for the elderly.
to
December
2011,
as
(Id. at 51-52, 171, 305).
a
home
She had
to stop working because “things got too much for [her] mentally
and [she] just couldn’t handle it.”
work
now
because
she
has
“a
hard
concentrate,” and has “bad anxiety.”
(Id. at 51).
time
She cannot
focusing,”
(Id. at 52).
“can’t
Plaintiff
moved to Alabama in June 2012 and filed her application for
3
benefits on June 19, 2012.
Plaintiff
medication
testified
(Risperdal
(Id. at 50, 157).
at
and
her
Zoloft)
hearing
that
prescribed
she
by
is
her
taking
treating
psychiatrist at West Alabama Mental Health (“WAMH”) and that
WAHH assisted her in obtaining and paying for the medication
because she could not afford it.
(Id. at 52-53).
Plaintiff
testified that her medication makes her drowsy, and she has to
lie down for about seven hours during the daytime most days.
(Id. at 54).
According to Plaintiff, she stopped going to West
Alabama Mental Health Center in March 2013 because they started
charging her a co-pay, which she cannot afford.
(Id. at 56).
Plaintiff testified that she still has feelings of worthlessness
and suicidal thoughts, but she is no longer using cocaine or
alcohol.
(Id. at 58-59).
According to Plaintiff, she has only about two good days a
week.
(Id. at 54-55).
On her good days, she sits and eats, and
on her bad days, she sleeps.
(Id.).
In her Function Report
submitted to the Agency, Plaintiff reported that she can feed
herself and use the toilet, but she gets “fatigue[d]” dressing
and bathing.
(Id. at 180).
In addition, she needs reminders to
take her medication and to take care of her personal care needs.
(Id. at 181).
Plaintiff stated that she can only pay attention
for one minute; she cannot finish what she starts; she cannot
handle stress or changes in routine; she cannot follow written
4
or spoken instructions; she cannot cook or clean; she cannot
shop; she cannot handle money; and she cannot get along with
authority figures. 2
(Id. at 181-82, 184-85).
However, she has
never been fired from a job because of problems getting along
with other people.
(Id. at 185).
Plaintiff testified that she lives with her aunt, that she
has been separated from her husband for about five years, and
that her six children are all grown, except for her nine-yearold son who lives with his father in New York.
52).
(Id. at 48-49,
Plaintiff testified that she does not clean; she does not
shop because people make her nervous; and she does not go to
church.
(Id. at 55).
license
because
checking
account
of
or
In addition, she has never had a driver’s
her
“bad
written
nerves;”
a
check;
accompanied when she goes to the doctor.
IV.
she
and
has
she
never
has
had
to
a
be
(Id. at 53-54, 183).
Analysis
A.
Standard of Review
In reviewing claims brought under the Act, this Court’s
2
In her undated Function Report submitted to the Agency,
Plaintiff stated that she has problems getting along with her
family and friends because “they [are] trying to steal [her]
brain.”
(Tr. 184).
Plaintiff stated: “I don’t like people[;]
make them go away[;] please help me.”
(Id.).
In her undated
Disability Report – Appeals, submitted to the Agency, Plaintiff
stated that she is “paranoid,” explaining: “[P]eople are trying
to kill me. I need to find a secret place to hide out.” (Id.
at 189).
5
role
is
a
limited
determining
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.
must
be
Brown v.
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
evidence as a reasonable person would accept
support
a
conclusion.”).
In
determining
“such
relevant
as adequate to
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
3
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).
6
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
see
Social
sequential
also
20
Security
evaluation
§§
regulations
process
determining if a claimant has proven his disability. 4
4
C.F.R.
for
20 C.F.R.
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.
7
§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since January 1,
2012,
the
impairments
anxiety
alleged
5
onset
date,
and
that
she
has
the
severe
of depressive disorder with psychotic features,
disorder,
and
history
cocaine, and cannabis) abuse. 7
of
polysubstance
(Tr. 21).
6
(alcohol,
The ALJ further found
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
5
The ALJ found Plaintiff’s impairment of ovarian cyst to be nonsevere. (Tr. 22). Plaintiff has not raised any issue on appeal
related to this finding or to any other finding by the ALJ
related to any alleged physical impairment. (Doc. 13).
6
As the ALJ correctly noted, the record also contains references
to schizophrenia but only in “past medical history reported by
[Plaintiff],” not in a diagnosis by an acceptable medical
source. (Tr. 22). Nonetheless, the ALJ considered Plaintiff’s
allegations of auditory and visual hallucinations, as well as
paranoia, as evidenced by his finding of “psychotic features”
with Plaintiff’s depressive disorder. (Id.).
7
As Defendant points out, the law precludes the award of benefits
“when substance abuse is a contributing factor material to a
disability finding.”
Green v. Colvin, 2014 U.S. Dist. LEXIS
48625, *3, 2014 WL 1379969, *1 (S.D. Ga. Apr. 8, 2014), report
and recommendation adopted, 2014 U.S. Dist. LEXIS 72721, 2014 WL
2322822 (S.D. Ga. May 28, 2014)
(citing 42 U.S.C. §§
423(d)(2)(C), 1382c(a)(3)(J)). Accordingly, when an ALJ finds a
claimant disabled, and medical evidence of substance abuse
exists, the ALJ must then determine whether the abuse is “a
contributing
factor
material
to
the
determination
of
disability.” Harris v. Colvin, 2016 U.S. Dist. LEXIS 36706, *5,
2016 WL 1117645, *2 (N.D. Ala. Mar. 22, 2016) (citing 20 C.F.R.
§§ 404.1535(a), 416.935(a)).
In such cases, if the ALJ
determines that the claimant would not be disabled if he or she
stopped the substance abuse, then the claimant is not considered
disabled under the SSA.
See Hunt v. Soc. Sec. Admin.,
8
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.
(Id. at 22).
The
ALJ
concluded
that
Plaintiff
retains
the
residual
functional capacity (hereinafter “RFC”) to perform a full range
of
work
at
all
exertional
levels,
with
the
following
non-
exertional limitations: Plaintiff “is limited to non-complex job
tasks, and she is limited to no more than occasional contact
with the general public and coworkers.”
(Id. at 28).
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 29).
The ALJ found that Plaintiff is unable to perform any of
her past relevant work.
(Id. at 30).
However, utilizing the
Commissioner, 631 Fed. Appx. 813, 815 (11th Cir. 2015).
Where
as here, the ALJ conducts the five-step inquiry and finds that,
even considering the medical evidence of substance abuse, the
claimant is not disabled, then the claimant is not entitled to
benefits, and there is no need to proceed with the additional
analysis under 20 CFR §§ 404.1535 or 416.935.
See Green, 2014
U.S. Dist. LEXIS 48625 at *8, 2014 WL 1379969 at *3.
Having
found herein that substantial evidence supports the ALJ’s
finding that Plaintiff is not disabled, the ALJ was not required
to further consider whether Plaintiff’s substance abuse would
have negated any finding of disability. Harris, 2016 U.S. Dist.
LEXIS 36706 at *5, 2016 WL 1117645 at *2.
9
testimony
of
a
VE,
the
ALJ
concluded
that
considering
Plaintiff’s residual functional capacity for a full range of
work at all exertional levels with the stated non-exertional
limitations, as well as her age, education and work experience,
there are jobs existing in the national economy that Plaintiff
is able to perform, such as “night cleaner,” “hand packager,”
and “laundry worker,” all of which are classified as medium and
unskilled.
(Id. at 31).
is not disabled.
The
Court
Thus, the ALJ concluded that Plaintiff
(Id.).
now
considers
the
foregoing
in
light
of
the
record in this case and the issues on appeal.
Issue
Whether the ALJ erred in rejecting the
opinions
of
Plaintiff’s
treating
psychiatrist, Dr. Sanjay Singh, M.D.,
Plaintiff’s consulting psychologist, Dr.
Terasa Davis, Psy.D., and Plaintiff’s
examining psychiatrist, Dr. David W.
Hodo, M.D., while at the same time giving
significant weight to the opinions of
non-examining, State Agency psychologist,
Dr. Gloria Roque, Ph.D.?
In
this
case,
Plaintiff
argues
that
the
ALJ
erred
in
rejecting the opinions of her treating psychiatrist, Dr. Sanjay
Singh, M.D., consulting psychologist, Dr. Terasa Davis, Psy.D.,
and examining psychiatrist, Dr. David W. Hodo, M.D., while at
the same time giving significant weight to the opinions of nonexamining, State Agency psychologist, Dr. Gloria Roque, Ph.D.
10
(Doc. 13 at 6).
The Commissioner counters that the ALJ afforded
the proper weight to the opinions of Dr. Singh, Dr. Davis, Dr.
Hodo,
and
Dr.
Roque,
he
weighed
those
opinions
against
the
substantial evidence in the case, and he properly discredited
any
opinions
and
findings
that
were
substantial evidence in the case.
reviewed
the
record
in
this
inconsistent
(Doc. 15).
case,
the
with
the
Having carefully
Court
finds
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
ALJ
weighing
the
opinion
of
a
treating
physician,
the
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)).
11
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
(unpublished)
“The
when
examining sources.”
275 Fed. Appx. 947, 948
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
it
to
is
discredit
contrary
to
the
or
unsupported by the evidence of record.
Phillips v. Barnhart,
357 F.3d 1232, 1240 (11th Cir. 2004).
“Good cause may also
exist
where
a
doctor’s
opinions
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
12
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.).
Plaintiff’s alleged onset date is January 1, 2012.
156).
(Id. at
The record shows that on May 30, 2012, Plaintiff was
admitted to the hospital in Syracuse, New York, for two days for
a psychiatric evaluation after presenting to the emergency room
for treatment of “alcohol intoxication” and “suicidal thoughts.”8
(Tr. 210, 220, 227).
During her evaluation, Plaintiff reported
using crack cocaine every other day and using alcohol daily.
She also reported a history of anxiety and depression, alcohol,
cannabis, and crack cocaine abuse, several prior rehabilitation
treatments, and two previous suicide attempts.
215-16,
218,
220).
Plaintiff
denied
hallucinations
delusions but reported thoughts of suicide.
was oriented to person, place, and time.
(Id. at 212-13,
and
(Id. at 212).
She
(Id.).
Her strengths
were noted as “able to work,” 9 and “verbal” skills.
(Id. at
215).
8
Plaintiff’s medical records show that her blood alcohol level
was .212, and that she was using cocaine. (Tr. 220).
9
Plaintiff reported that she was collecting unemployment benefits
at the time and had worked until June 2010. (Tr. 220).
13
Plaintiff’s mental status examination revealed that she was
“depressed,” that her judgment and insight were limited, that
she was cooperative, that she had good eye contact, that her
memory
and
orientation
were
intact,
that
her
attention
and
concentration were good, that her speech, thought processes, and
associations were normal, that she had no delusions or psychotic
thoughts, and that her fund of knowledge was adequate.
221).
worse
(Id. at
She was assessed with “depressive syndrome disorder made
by
cocaine
diagnoses
were
dependence,
Plaintiff
dependency.”
cocaine
episodic;
was
(Id.
at
dependence,
and
discharged
221).
continuous
depressive
on
June
Her
1,
specific
use;
alcohol
disorder.
2012,
with
(Id.).
medications
(Buspar and Zoloft) and a bus ticket to Tuscaloosa, Alabama, to
see her brother.
(Id. at 242-45).
Plaintiff’s mental status
evaluation on that date was within normal limits.
(Id. at 245).
Plaintiff arrived in Alabama in June 2012 and filed her
applications
for
(Tr. 50, 157).
social
security
benefits
on
June
19,
2012.
Approximately one month later, on July 27, 2012,
consultative psychologist, Dr. Terasa Davis, Psy.D., examined
Plaintiff
at
the
request
of
the
Agency.
(Id.
at
303).
Plaintiff reported to Dr. Davis that she had filed her sixth
application
for
During
interview,
the
social
security
disability
Plaintiff
expressed
benefits.
(Id.).
a
commit
plan
to
suicide. As a result, Dr. Davis terminated the evaluation and
14
sent
Plaintiff
Center.
to
the
emergency
room
at
Northport
Medical
(Id.).
Upon arriving at Northport Medical Center on July 27, 2012,
Plaintiff was admitted for two days for treatment of “suicidal
ideations”
and
“psychosis.”
(Id.
at
262-63).
Plaintiff
reported being off of her medications since June 2012. 10
268, 273).
(Id. at
Dr. Sanjay K. Singh, M.D., treated Plaintiff during
her admission. He noted a reported history of substance abuse, a
reported history of schizophrenia, and a current positive test
result for cannabis use.
(Id. at 262, 271, 273).
Dr. Singh
placed Plaintiff back on her medication (Risperdal and Zoloft)
and
discharged
her
on
July
29,
2012,
with
the
diagnoses
“depressive disorder, NOS,” and “polysubstance abuse.”
of
He noted
that Plaintiff was “feeling better,” that she was stable, that
her “mood [had] improved,” that she had “no overt symptoms of
psychosis” and no suicidal or homicidal ideation, and that she
was “psychiatrically stable to be discharged.”
(Id. at 262,
273-74).
Plaintiff
resumed
her
consultative
examination
with
Dr.
Davis eight days later, on August 6, 2012, at which time she
reported that her suicidal ideations had decreased significantly
10
Plaintiff reported that since moving to Alabama from New York,
she had not been able to find a doctor to prescribe her
medications. (Tr. 268).
15
following treatment. 11
Plaintiff also reported that she was off
of her medication again because she was unable to afford it.
(Id. at 303-04).
She stated that she felt that she was a “big
inconvenience”
to
irritability,
anxiety,
paranoia,
her
decreased
family,
and
she
depression,
sleep,
reported
sadness,
loss
of
feelings
anger,
interest
of
guilt,
in
sex,
worthlessness, hopelessness, decreased appetite, crying spells,
social
isolation,
decisions.
motor
retardation,
(Id. at 303-04).
and
difficulty
making
Plaintiff further reported being
unable to work because of her depression.
(Id. at 304).
According to Plaintiff, she previously worked as a home
health
care
because
it
demands.
aide
was
for
seven
stressful,
(Id. at 305).
years
and
but
she
quit
could
the
not
job
cope
in
2011
with
the
Plaintiff also reported that she was
able to perform her own activities of daily living and was able
to take care of her own finances.
(Id.).
She stated that she
currently smoked approximately half a pack of cigarettes each
day and had smoked since she was fifteen years old. She also
reported that she used alcohol “occasionally,” and that she had
a
history
of
binge
drinking
on
11
the
weekends
due
to
her
Plaintiff stated that she “was feeling better” and that her
suicidal thoughts had stopped after being hospitalized and
“having some medication in her.” (Tr. 304).
16
depression. 12
(Id. at 306).
Additionally, Plaintiff reported
that she had “tr[ied] marijuana”, but she denied “any recent or
current use of illicit substances.”13
During
Plaintiff’s
mental
(Id. at 306).
status
examination,
Dr.
Davis
observed that Plaintiff was restless and vigilant, that she was
“engageable,” and that she was in “moderate” distress.
(Id.).
In addition, Dr. Davis observed that Plaintiff’s eye contact was
appropriate; she was oriented to person, place, and time; her
immediate, recent, and remote memories were intact; her fund of
information
and
abstraction
skills
were
appropriate;
her
judgment for hypothetical situations was “good;” 14 her insight
was “fair;” her thought processes were “logical” and “coherent;”
her mood was sad; her speech was talkative, rapid, pressured,
and
emotional;
impaired.
and
her
attention
and
concentration
were
(Id. at 306-08).
Plaintiff
reported
no
hallucinations
or
delusions,
but
stated that her brain was “hot,” and she felt that people were
12
Plaintiff reported that she stopped binge drinking “about a
year ago.” (Tr. 306).
13
Plaintiff’s medical records show that she was intoxicated upon
her arrival at the New York hospital on May 30, 2012; she tested
positive for cannabis upon her arrival at the Tuscaloosa
hospital on July 27, 2012; and that she reported using crack
cocaine every other day and alcohol every day.
(Tr. 212-13,
216, 220, 227, 271).
14
In another portion of the report, Dr. Davis
Plaintiff’s judgment “appeared poor.” (Tr. 308).
17
noted
that
out
to
get
her,
although
not
quite
received treatment in the hospital.
as
much
since
(Id. at 307-08).
she
had
Plaintiff
reported a daily routine consisting of completing her activities
of daily living, lounging around the house if the family did not
have gas to go anywhere, and walking in the yard.
Plaintiff
stated
that
she
did
not
have
the
(Id. at 308).
energy
to
do
housework; she did not do yard work; she could do laundry with
supervision; she could cook her own meals if necessary; she
could shop but did not like to be in crowds; and she did not
attend church because she did not like to be around people.
(Id. at 308-09).
Dr.
Davis
diagnosed
Plaintiff
with
major
depressive
disorder, recurrent, severe with psychotic features, and panic
disorder
without
agoraphobia
and
opined
that
Plaintiff’s
prognosis was “fair with appropriate treatment.” He noted that
Plaintiff had reported doing better while on her medications but
that she did not have the money for them currently.
309).
Dr.
Davis
opined
that
Plaintiff
could
(Id. at
understand
instructions; that she was “not significantly impaired” in her
ability to recall instructions; that she “may” be impaired in
her ability to carry out instructions due to her anxiety and
depression;
that
she
was
“quite
limited
currently”
in
her
ability to respond appropriately to co-workers and supervisors
because of her anxiety and depressive symptoms; that work stress
18
“would likely lead to further declines in her already limited
functioning;”
and
that
Plaintiff
had
“no
impairment”
in
her
ability to handle funds, but having someone to assist her with
her finances would also be appropriate.
(Id. at 305, 309).
Two days later, on August 8, 2012, Plaintiff presented to
the
Hale
County
medications.
Hospital
Clinic
(Id. at 361).
requesting
a
refill
of
her
Plaintiff reported that she could
not afford her Risperdal or Zoloft, and Dr. Perry Timberlake,
M.D., made arrangements for her to get her medications at a low
cost, noting “Frank says she can get both for $25 at his place.”
(Id.).
Approximately two weeks later, on August 24, 2012, nonexamining, State Agency psychologist, Dr. Gloria Roque, Ph.D.,
completed a Mental Residual Functional Capacity assessment and
opined
that
Plaintiff’s
carry
out
very
significantly
remember,
ability
short
and
limited;”
and
carry
understand,
simple
that
out
to
her
detailed
remember,
instructions
ability
to
was
and
“not
understand,
instructions,
maintain
concentration for extended periods, perform activities within a
schedule, complete a normal work week, interact appropriately
with the general public, co-workers, and supervisors, sustain an
ordinary
routine
appropriately
to
without
changes
in
special
the
supervision,
workplace,
and
be
respond
aware
of
normal hazards was “moderately” limited; and that her ability to
19
work in coordination with or in proximity to others, make simple
work-related
decisions,
independently
of
unfamiliar
make
others,
places,
and
significantly limited.”
realistic
ask
use
simple
public
goals
and
questions,
plans
travel
transportation
was
in
“not
(Id. at 338-40).
On September 20, 2012, Plaintiff presented to West Alabama
Mental
Health
depression
and
Center
was
(“WAMH”)
diagnosed
complaining
by
the
staff
of
anxiety
and
psychiatrist
with
major depressive disorder, recurrent with psychotic features.
(Id. at 390-92).
Plaintiff reported being compliant with her
medication (Zoloft and Risperdal) at that time.
(Id. at 390).
She also reported smoking half a pack of cigarettes a day but
denied alcohol and drug use.
(Id. at 392).
Plaintiff returned
to WAMH on October 26, 2012, December 6, 2012, and December 20,
2012, and her treatment notes reflect that she was medication
compliant with no side effects; that her progress was “good;”
that her sleep patterns had improved with medication; that her
appetite was “good;” and that she was “doing well.”
(Id. at
387-89, 395).
On January 16, 2013, Plaintiff presented to the Hale County
Hospital
emergency
room
with
complaints
of
left
side
and
abdominal pain and was diagnosed with pregnancy and a cyst on
her left ovary.
(Id. at 355, 363, 367, 372, 378).
Plaintiff
reported smoking cigarettes but denied alcohol and drug use.
20
(Id. at 355).
Plaintiff was discharged in stable condition with
instructions to return for an ultrasound, to make an appointment
with her ob-gyn as soon as possible, and to sign up with the
health department.
(Id. at 369, 375, 379).
following day confirmed the pregnancy.
On
February
12,
2013,
An ultrasound the
(Id. at 379).
Plaintiff
requesting to see the psychiatrist.
presented
to
(Id. at 384).
WAMH
Plaintiff
reported that she had stopped taking her medications on January
17, 2013 due to her pregnancy.
(Id. at 385).
Plaintiff also
reported that her mood had not been good since she stopped her
medication and that she was anxious and depressed, but that she
was “doing ok” and coping.
(Id. at 384-85).
The psychiatrist
noted that Plaintiff was coping fairly and did not want to take
her medication and would wait and see how things progressed.
(Id.
at
385-86).
Plaintiff
returned
to
WAMH
the
following
month, on March 21, 2013. Her treatment notes reflect that she
was
still
cannabis.
compliant
pregnant
and
was
(Id. at 383).
with
her
still
using
both
alcohol
and
At that time, she reported being
medication.
(Id.).
This
is
the
last
treatment note in the record.
On
November
4,
2013,
three
weeks
before
Plaintiff’s
hearing, she was examined by Dr. David W. Hodo, M.D., at the
request of her attorney.
taking
Risperdal
and
Dr. Hodo noted that Plaintiff was
Zoloft,
which
21
she
acquired
from
Dr.
Timberlake, and that she reported that she had stopped going to
WAMH because she could not afford the co-pay.
(Id. at 396).
Plaintiff reported that the medications helped her, but she had
trouble paying for them.
Dr.
Hodo
noted
(Id. at 396).
that
Plaintiff’s
medications
had
“helped
somewhat” but that she “had trouble being consistent with it.”
(Id. at 397).
Plaintiff admitted that she still smoked and that
she continued to use alcohol and marijuana.
(Id. at 396-97).
Dr. Hodo noted Plaintiff’s previous diagnoses of depression and
her
reported
diagnosis
of
schizophrenia.
(Id.
at
397).
Plaintiff reported that, at times, she had thoughts of suicide,
paranoia, and visual and auditory hallucinations.
(Id.).
Dr.
Hodo described Plaintiff’s activities of daily living as “quite
limited” and noted that she did not exercise or drive and that
she lived in an isolated area.
limitations.
mental
He assigned no physical
(Id.).
In
(Id.).
his
status
evaluation,
Dr.
Hodo
noted
that
Plaintiff “seem[ed] to be depressed,” that her affect was flat,
that her thoughts were illogical with a flight of ideas, that
she had problems concentrating, that she was inattentive and had
low
energy,
president
that
was),
her
that
abstractions
were
degree
short
of
sensorium
her
proverb
difficult
term
was
for
memory
22
okay
testing
her,
with
and
(she
was
that
some
knew
who
the
adequate
but
she
had
suggestion
some
of
confabulation.
bipolar
(Id.).
disorder
Dr. Hodo’s impression was: 1) consider
(as
opposed
to
schizo-affective
disorder);
depression; generalized anxiety disorder, “probably with some
panic;”
alcohol
and
drug
problems;
characterological problems as well.”
and
“probably
(Id. at 398).
Dr. Hodo
opined that it is highly unlikely that Plaintiff could manage
any financial benefits awarded to her.
Dr.
Hodo
(Mental).
He
also
completed
opined
that
a
(Id.).
Medical
Plaintiff
Source
had
Opinion
marked
to
Form
extreme
limitations in every functional capacity referred to in the form
and that the stress of a job would likely cause her condition to
deteriorate.
Plaintiff’s
(Id.
at
medications
399-400).
do
Dr.
“help[]”
her
Hodo
opined
ability
to
that
function.
(Id. at 400).
As discussed above, Plaintiff argues that the ALJ erred in
rejecting
the
opinions
of
treating
psychiatrist
Dr.
Singh,
consultative psychologist Dr. Davis, and examining psychiatrist
Dr.
Hodo,
while
psychologist,
Dr.
crediting
Roque.
decision reveals that
the
opinions
However,
a
of
review
non-examining
of
the
ALJ’s
the ALJ only rejected the opinions of
these medical sources to the extent that they were inconsistent
with the substantial record evidence in the case.
First, with respect to treating psychiatrist, Dr. Singh,
who
treated
Plaintiff
during
her
23
two-day
stay
at
Northport
Medical Center on July 27, 2012, the ALJ did not reject Dr.
Singh’s
diagnoses
“polysubstance
findings
that
of
abuse,”
“depressive
nor
Plaintiff
did
had
he
been
disorder,
disagree
with
non-compliant
NOS,”
Dr.
and
Singh’s
with
her
medication and that after two days of treatment with Risperdal
and Zoloft, she was “feeling better,” had an improved mood, and
was psychiatrically stable for discharge.
74).
(Id. at 23, 262, 273-
The ALJ merely noted that Dr. Singh’s assignment of a GAF
score of 25 upon admission was not supported by
Plaintiff’s
mental status examination at that time, but, nonetheless, the
ALJ expressly considered her GAF scores (which he noted were a
measure of her functioning at the time of the evaluation), along
with all of the evidence as a whole.15
15
(Id. at 23).
The Global Assessment of Functioning Scale (GAF) was designed
by mental health clinicians to rate the psychological, social
and occupational functioning of an individual on a mental health
scale of 0–100. The range of 21–30 is defined as “behavior is
considerably influenced by delusions or hallucinations OR
serious
impairment,
in
communication
or
judgment
(e.g.,
sometimes incoherent, acts grossly inappropriately, suicidal
preoccupation) OR inability to function in almost all areas
(e.g., stays in bed all day, no job, home, or friends).”
See
Frizzo v. Astrue, 2012 U.S. Dist. LEXIS 120403, *13 n.6, 2012 WL
3668049, *4 n.6 (M.D. Fla. Aug. 7, 2012), report and
recommendation adopted sub nom. Frizzo v. Commissioner of Soc.
Sec., 2012 U.S. Dist. LEXIS 120399, 2012 WL 3651057 (M.D. Fla.
Aug. 24, 2012) (citing Diagnostic and Statistical Manual of
Mental Disorders, DSM–IV, 34 (4th ed., American Psychiatric
Assoc. 2000)).
However, the latest edition of the Diagnostic
and Statistical Manual of Mental Disorders, “DSM-5,” abandoned
the GAF scale as a measurement tool.
See Hartung v. Colvin,
2016 U.S. Dist. LEXIS 65855, *19 n.2, 2016 WL 2910096, *6 n.2
(E.D. Pa. May 19, 2016). Because of this, “the Social Security
24
Likewise,
with
respect
to
consultative
psychologist
Dr.
Davis, who examined Plaintiff on August 6, 2012, the ALJ did not
reject
Dr.
Davis’
diagnoses
of
“major
depressive
disorder,
recurrent, severe with psychotic features, and panic disorder
without agoraphobia” (id. at 309), nor did he reject Dr. Davis’
findings
that
Plaintiff’s
suicidal
ideations
had
decreased
significantly following her recent hospital treatment (id. at
304), that her prognosis was “fair with appropriate treatment,”
that she reported doing better while on her medications (id. at
309), that she could perform her own activities of daily living
and take care of her own finances (id. at 305), and that she was
“not significantly impaired” in her ability to understand and
recall instructions.
(Id. at 309).
While the ALJ did take
issue with Dr. Davis’ opinions that Plaintiff “may” be impaired
in her ability to carry out instructions due to her anxiety and
depression,
that
she
was
“quite
limited
currently”
in
her
ability to respond appropriately to co-workers and supervisors
because of her anxiety and depressive symptoms, and that work
stress “would likely lead to further declines in her already
Administration now permits ALJ’s to use GAF ratings as opinion
evidence when assessing disability claims involving mental
disorders; but instructed that a ‘GAF score is never dispositive
of impairment severity,’ and an ALJ should not ‘give controlling
weight to a GAF from a treating source unless it is well
supported and not inconsistent with other evidence.’” Id.
(quoting SSA AM-13066 at 5 (July 13, 2013)).
25
limited functioning,” the ALJ pointed out that Plaintiff had not
been
compliant
with
her
medications
at
the
time
of
her
evaluation by Dr. Davis, nor had she been honest with Dr. Davis
about her alcohol and drug use.
(Id. at 25, 304, 306, 309)
(emphasis added).
For those reasons, the ALJ afforded “very
limited
Dr.
weight”
to
ability to function.
of
Dr.
Davis’
Davis’
opinions
regarding
Plaintiff’s
The Court agrees with the ALJ’s assessment
opinions
given
the
substantial
evidence
that
Plaintiff was noncompliant with her medication at the time of
her evaluation, 16 that her medications had been largely effective
when taken, 17 and that Plaintiff provided inaccurate information
to Dr. Davis concerning her use of drugs and alcohol.18
16
Dr. Davis expressly noted in her report that Plaintiff was noncompliant with her medications. (Tr. 304). Plaintiff’s medical
records also show repeated instances of non-compliance with her
medication. (Id. at 263, 268, 273, 304, 384-86, 395).
17
The substantial evidence shows that, when Plaintiff took her
medicine, her progress was “good;” her condition improved; she
“fe[lt] better;” she was “stable;” and she “d[id] well.”
(Tr.
262, 284, 303-04, 384-88, 387-89, 395).
Conversely, when she
was off of her medications, her condition deteriorated. (Id. at
268, 273, 384-85).
18
Plaintiff reported to Dr. Davis that she used alcohol only
“occasionally,” and that she had “tr[ied]” marijuana but did not
use any illegal drugs. (Tr. 306). However, Plaintiff’s medical
records from May 2012 to March 2013 contain multiple diagnoses
of drug and alcohol abuse, including “depressive syndrome
disorder made worse by cocaine dependency,” cocaine dependence,
continuous use, alcohol dependence, episodic and polysubstance
abuse.
(Tr. 221, 262).
Also, Plaintiff tested positive for
cannabis in July 2012 and admitted to using crack cocaine every
other day and to using alcohol daily in May 2012. (Id. at 216,
26
Further, the Court rejects Plaintiff’s claim that she was
non-compliant because she could not afford her medication.
The
record shows that Plaintiff’s medications (Risperdal and Zoloft)
were made available to her by Dr. Timberlake at a low cost and,
as noted above, although she claimed to be unable to afford her
prescribed
medications,
she
alcohol, and drug habits.
Thus,
her
attempt
to
continued
to
fund
her
cigarette,
(Id. at 306, 361, 383-86, 392, 396).
blame
her
financial resources is unavailing.
non-compliance
on
lack
of
See Smith v. Colvin, 2016
U.S. Dist. LEXIS 29991, *16-17, 2016 WL 892776, *6 (N.D. Ala.
Mar. 9, 2016) (ALJ properly discounted plaintiff’s claim that
she could not afford treatment because she no longer had health
insurance
where
the
evidence
showed
that
she
continued
to
finance her smoking habit of half a pack of cigarettes a day).
Next, with respect to examining psychiatrist, Dr. Hodo, who
examined Plaintiff at the request of her attorney on November 4,
2013, contrary to Plaintiff’s argument, the ALJ did not reject
Dr.
Hodo’s
diagnoses
of
(1)
possible
bipolar
disorder,
(2)
271). Further, contrary to Plaintiff’s statements to Dr. Davis,
her use of alcohol, cannabis, and crack cocaine has been well
documented in the record. (Id. at 212-13, 215-16, 218, 220-21,
227, 271, 383, 392). Ironically, in February and March 2013, at
the same time that Plaintiff announced that she was taking
herself off of her medication because she was pregnant, she
admitted continued use of drugs and alcohol.
(Id. at 383-86).
She continued to use alcohol and drugs in November 2013.
(Id.
at 396).
27
depression,
(3)
generalized
anxiety
disorder
(“probably
with
some panic,”) and (4) alcohol and drug problems (and “probably
characterological problems as well”).
(Id. at 398).
Rather,
the ALJ rejected Dr. Hodo’s opinions set forth in a Medical
Source
Opinion
Form
(Mental)
that
Plaintiff
has
marked
to
extreme limitations in every functional capacity referred to in
the form, as being inconsistent with the substantial evidence in
the case.
Having reviewed Dr. Hodo’s report at length, the
Court finds that the ALJ correctly identified inconsistencies
therein.
Dr. Hodo’s opinions that Plaintiff has marked to extreme
limitations in every functional capacity referred to in the form
are inconsistent with the substantial record evidence detailed
above, that, when she took her medicine, Plaintiff’s progress
was “good;” her condition improved; she “fe[lt] better;” she was
“stable;” and she “d[id] well.”
88, 395).
that
her
(Id. at 262, 284, 303-04, 384-
In fact, Dr. Hodo’s own examination notes reflect
medications
consistently.
helped
but
that
(Id. at 396-97, 400).
she
did
not
take
them
Moreover, the record is
devoid of any opinion by a treating medical source assigning
functional limitations in excess of the ALJ’s RFC, much less
supporting the marked and extreme limitations found by Dr. Hodo.
Further,
handling
Dr.
her
Hodo’s
opinion
own
finances
that
Plaintiff
is
directly
28
was
incapable
contradicted
of
by
Plaintiff’s own statement to Dr. Davis that she could handle her
own finances and Dr. Davis’ opinion that Plaintiff could handle
her
own
finances.
inconsistencies,
Dr.
(Id.
Hodo’s
at
305,
assignment
309).
of
Given
marked
and
these
extreme
functional limitations in every measured category is unsupported
by the substantial medical evidence in the record. Thus, the ALJ
had good cause for rejecting his opinions.
Last,
Plaintiff
argues
that
the
ALJ
erred
in
assigning
significant weight to the opinions of non-examining State Agency
psychologist, Dr. Gloria Roque, Ph.D.
As discussed, Dr. Roque
opined in a Psychiatric Review Technique form that Plaintiff’s
ability to understand, remember, and carry out very short and
simple instructions was “not significantly limited;” that her
ability
to
understand,
instructions,
maintain
remember,
and
concentration
carry
for
out
detailed
extended
periods,
perform activities within a schedule, complete a normal work
week,
interact
appropriately
with
the
general
public,
co-
workers, and supervisors, sustain an ordinary routine without
special
supervision,
respond
appropriately
to
changes
in
the
workplace, and be aware of normal hazards was only “moderately”
limited; and that her ability to work in coordination with or in
proximity to others, make simple work-related decisions, travel
in unfamiliar places, and use public transportation was “not
significantly limited.”
(Id. at 338-40).
29
As the ALJ concluded,
these opinions are consistent with the medical evidence in this
case,
specifically
including
the
evidence
of
Plaintiff’s
improvement of symptoms when on her medication and her worsening
of symptoms when non-compliant with her prescribed medication.
(Id. at 25-26).
Because Dr. Roque’s opinion did not conflict
with any credible finding or opinion of any examining physician,
it was properly given significant weight.
See Milner,
275 Fed.
Appx. at 948.
Based on the foregoing, the Court finds that Plaintiff’s
claim that the ALJ erred in assigning significant weight to the
opinions
of
non-examining
psychologist,
Dr.
Roque,
while
rejecting portions of the opinions of treating psychiatrist Dr.
Singh,
consultative
psychiatrist
reviewed
Dr.
the
psychologist,
Hodo
record
is
at
without
length,
Dr.
Davis,
merit.
the
Court
and
examining
Moreover,
finds
having
that
the
substantial evidence in this case supports the ALJ’s finding
that
Plaintiff
can
perform
a
full
range
of
work
at
all
exertional levels, with the stated non-exertional restrictions
(i.e., that she is “limited to non-complex job tasks,” and “to
no more than occasional contact with the general public and
coworkers”), which accommodate Plaintiff’s mental limitations.
(Id. at 28).
Therefore, the Court finds that Plaintiff’s claim
is without merit.
V.
Conclusion
30
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 September, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
31
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