Clayton v. Colvin

Filing 33

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be AFFIRMED. Signed by Magistrate Judge P. Bradley Murray on 6/26/2017. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
SHERYL CLAYTON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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CIVIL ACTION NO. 16-0169-MU

MEMORANDUM OPINION AND ORDER
Plaintiff Sheryl Clayton brings this action, pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of
Social Security (“the Commissioner”) denying her claim for Supplemental
Security Income (“SSI”), based on disability. The parties have consented to the
exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c),
for all proceedings in this Court. (Doc. 30 (“In accordance with the provisions of
28 U.S.C. 636(c) and Fed. R. Civ. P. 73, the parties in this case consent to have
a United States Magistrate Judge conduct any and all proceedings in this case,
… order the entry of a final judgment, and conduct all post-judgment
proceedings.”)). Upon consideration of the administrative record, Clayton’s brief,
the Commissioner’s brief, and the arguments of counsel at the May 10, 2017,

hearing before this Court, it is determined that the Commissioner’s decision
denying benefits should be affirmed.1
I. PROCEDURAL HISTORY
Clayton applied for SSI, based on disability, under Title XVI of the Social
Security Act (“the Act”), 42 U.S.C. §§ 1381-1383d, on June 14, 2012. (Tr. 16).
Her application was denied at the initial level of administrative review on
September 25, 2012. (Tr. 109-10). On October 15, 2012, Clayton requested a
hearing by an Administrative Law Judge (ALJ). (Tr. 118). After hearings were
held on November 20, 2013, and April 20, 2014, the ALJ issued an unfavorable
decision finding that Clayton was not under a disability from the date the
application was filed through the date of the decision, November 14, 2014. (Tr.
16-41). Clayton appealed the ALJ’s decision to the Appeals Council, which
denied her request for review of the ALJ’s decision on March 2, 2016. (Tr. 1-3).
After exhausting her administrative remedies, Clayton sought judicial
review in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The
Commissioner filed an answer and the social security transcript on September 8,
2016. (Docs. 15, 16,17). After both parties filed briefs setting forth their
respective positions, the Court conducted a hearing on this matter on May 10,
2017. (Docs. 19, 26). The case is now ripe for decision.

1
Any appeal taken from this Order and Judgment shall be made to the Eleventh
Circuit Court of Appeals. See Doc. 30. (“An appeal from a judgment entered by a
Magistrate Judge shall be taken directly to the United States Court of Appeals for
the judicial circuit in the same manner as an appeal from any other judgment of
this district court.”).

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II. CLAIMS ON APPEAL
Clayton alleges that the ALJ’s decision to deny her benefits is in error for
the following reasons:
1. The ALJ erred in assigning weight to the medical opinions in the record;
specifically, by failing to give adequate weight to the opinion of Dr. Goff; and
2. The ALJ’s reasons for finding Clayton’s testimony to be only partially credible
are not supported by the evidence because the ALJ misrepresented testimony
and evidence.
(Doc. 19 at p. 1).
III. BACKGROUND FACTS
Clayton was born on June 17, 1966, and was almost 46 years old at the
time she filed her claim for benefits. (Tr. 77-78). Clayton alleged disability due to
pain and arthritis in both hands, headaches, and pain in one of her legs. (Tr. 261,
267, 280). Clayton completed either the tenth or the eleventh grade in high
school and did not attend special education classes. (Tr. 262).2 She has never
worked. (Tr. 261). She engages in normal daily activities such as personal care,
cooking meals, housework, taking walks, watching television, and reading. (Tr.
282). She has raised her children and now takes care of a granddaughter. (Tr.
23, 24, 285). After conducting two hearings, the ALJ made a determination that
Clayton had not been under a disability during the relevant time period, and thus,
was not entitled to benefits. (Tr.16-41).

2
 Clayton indicated in various documents and testimony that she completed the
tenth grade and in others the eleventh grade, after which time she dropped out of
school due to pregnancy. No school records are contained in the transcript.

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IV. ALJ’S DECISION
After considering all of the evidence, the ALJ made the following relevant
findings in his November 14, 2014 decision:
1. The claimant has not engaged in substantial gainful
activity since June 14, 2012, the application date (20
CFR 416.971 et seq.), nor does it appear that she has
been gainfully employed anywhere in the last 15-16
years for pay. Exhibit 5 D.
2. The claimant has the following severe impairments: a
history of a post concussive syndrome, after a motor
vehicle accident in 1993 (Exhibit 6 F, P. 1-2); a recent
headache disorder, after a laceration to the head
sustained while breaking up a fight in June 2012
(Exhibit 1F, P. 5, Exhibit 9 F, P. 19, 15); cognitive
disorder and borderline intellectual functioning; some
question of depression; and a history of arthritis (wrist,
leg/knee?), but no real objective evidence of the same
(20 CFR 416.920(c)).
These impairments are established by the medical evidence
and are "severe" within the meaning of the Regulations
because they significantly limit the claimant's ability to
perform basic work activities, as it would seem that they
have more than some minimal effect on the claimant's
ability to perform basic work activities (20 CPR 404.1520(c),
20 CFR 416.920(c); Brady v.Heckler, 724 F.2d 9114 (11th
Cir. 1984); Hillsman v. Bowen, 804 F.2d 1179 (11th Cir.
1986)).
The undersigned notes that the claimant has nonsevere
impairments of hypertension and tobacco abuse. In review
of the treatment record, these issues and or impairment[s]
appears to be effectively treated and not a severe
impairment within the meaning of the Social Security Act.
3. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1(20 CFR
416.920(d), 416.925 and 416.926).

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The claimant's impairments, individually or in combination,
do not meet or medically equal the criteria for any listed
impairment. The medical evidence of record fails to
document clinical findings of any physician that suggest the
claimant's impairments satisfy the severity requirements
contained in 20 CFR Part 404, Subpart P, Appendix 1(20
CFR 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926). …The medical expert, Dr. Johns,
testified the claimant did not meet or equal any listings
physically. The psychologist medical expert, Dr. McKeown,
testified the claimant did not meet or equal any of the
mental listings. It is very questionable whether she has any
depression severe enough to be an impairment, as she has
consistently denied depression in her family doctor
treatment (clinic) records, and also in most of the
consultative examinations, but it is considered in an
abundance of caution under 12.04.
The severity of the claimant's mental impairments,
considered singly and in combination, do not meet or
medically equal the criteria of listing 12.02 and 12.04. In
making this finding, the undersigned has considered
whether the "paragraph B" criteria are satisfied. …
In activities of daily living, the claimant has only a mild
restriction. In a Function Report-Adult, dated August 5,
2012, the claimant indicated that she can attend to her
personal needs independently. She can do laundry, prepare
meals, wash dishes, and iron (Exhibit 6E). The claimant has
had 4 children, and she testified that she can do simple
math and read and write some, she has a home phone and
has had no problems using it. Presently she gets $614 in
food stamps per month, and she grocery shops with her
daughter’s help. She has had no mental health treatment
her entire life. She does her housework with her daughter's
help. In her Function Report, she related that she could
cook breakfast, make her bed, take a bath, get dressed, do
housework, cook dinner, and that she watches TV and does
a little reading. Exhibit 6 E, P. 1. She claimed to, "do
everything for my children." Exhibit 6 E, P. 4. She did not
need reminders to take care of her personal needs or
grooming, and she could fix sandwiches, snacks and
complete meals on a daily basis. She indicated that she
was able to clean, do laundry, iron and do dishes, and that
she did these things 2-3 hours, daily. She would go out
every day and walk, and would shop in stores for food and

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household items, and it took her up to 2 hours. She
indicated that she could pay bills, count change, handle a
savings account, and use a checkbook and money orders.
She indicated that she read, and watched TV, every day,
very well. Exhibit 6 E, P. 4-7.
In social functioning, the claimant has mild difficulties. In the
afore-mentioned function report, the claimant indicated that
she spends time with others and shops in stores (Exhibit 6
E, P. 7, 8, 9). She went to stores and doctor offices on a
regular basis weekly, and played games with others, and
conversate(d) with them. She indicated there had been no
changes in her social activities since her (disabling)
condition began, and that she got along well with authority
figures.
With regard to concentration, persistence or pace, the
claimant has no more than moderate difficulties. The
claimant indicated in the afore-mentioned report that she
has problems memorizing and concentrating. However, she
indicated she can walk a half mile before having to stop and
rest, and enjoys watching television and reading, shops in
stores for food and for household items, and has
conversations and plays games with others. (Exhibit 6 E, P.
6, 7, 8). She indicated that she could finish what she
started, and could follow written instructions, such as a
recipe, "very well".
***
4. After careful consideration of the entire record, the
undersigned finds that this now 48 year old claimant
with nine to ten years of education, who is assessed as
Borderline Intellectual Functioning, has the residual
functional capacity to perform light work as defined in
20 CFR 416.967(b), except she can sit for six hours total
and for one to two hours without interruption during an
8 hour day. She can stand and/or walk for six hours
total, and stand and/or walk for thirty minutes to one
hour without interruption. She will need a sit/stand
option which takes into account all allowed work
breaks, and which allows a change of position while
remaining at her work station, with no loss of
productivity, occasionally during the day for up to 5
minutes. She can frequently lift, carry, push, and/or pull
ten pounds, and occasionally up to twenty pounds. She

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can frequently grasp and fine manipulate bilaterally
with her hands. She can occasionally use her feet for
repetitive movements bilaterally. She can frequently
bend, stoop, crawl, climb stairs, use ladders, ropes, or
scaffolds, crouch, kneel, and balance. She is assessed
with mild to moderate pain which does not cause her to
abandon task or the work station, and here mild and
moderate are specifically defined as conditions that do
not prevent the satisfactory completion of work.
However, due to her mental issues, and due to her pain
issues, I find that, as regards her concentration,
persistence and pace, she is limited to simple,
unskilled, repetitive and routine work, in jobs that have
no responsible or regular general public contact, any
that occurs should be brief and superficial, in jobs
where she works primarily alone, in jobs that require
little independent judgment, with only routine changes
and with no multiple or rapid changes. Compare, see
also, Exhibit 13 F, P. 7-8.
In making this finding, the undersigned has considered all
symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the
requirements of 20 CFR 416.929 and SSRs 96-4p and 967p. The undersigned has also considered opinion evidence
in accordance with the requirements of 20 CFR 416.927
and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
***
For this purpose, whenever statements about the intensity,
persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical
evidence, the undersigned must make a finding on the
credibility of the statements based on a consideration of the
entire case record.
In her initial application documents, the claimant initially
alleged that her ability to work was limited only by her
hands, headaches, and right leg problems. She reported
her height as 5'3" and her weight as 114 pounds. She
reported she had never worked, and, around August 4,
2003 alleged that her condition became severe enough to
keep her from working (Exhibit 2 E). This Disability ReportAdult-Form SSA-3368, received June 26, 2012, was filled

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out by her attorney, Exhibit 2 E, P. 1-2, 3, and it reports that
the claimant can speak, read and understand English, and
that she can write more than her name in English, and that
she has an 11th grade education, completed in 1983.
Requested to list all physical and or mental conditions that
limited her ability to work, the claimant indicated only both
hands, headaches, and right leg as issues. Exhibit 2 E, P.
2, Section 3.
It appears that she lives in an apartment. On August 5,
2012, in a Function Report form she filled out, the
claimant described her typical day as waking up, cooking
breakfast, making her bed, taking a bath, getting dressed,
doing housework, picking out dinner for the night, watching
television, taking a walk, cooking and eating dinner,
reading a little, then going back to sleep. She reported she
lives in an apartment with family caring for herself, children,
and grandchildren. She reported she can attend to her
personal care independently, although it is hard to button
her blouses and jeans and comb her hair. She can prepare
meals, clean, iron, perform laundry duties, and wash
dishes. She shops in stores and can handle financial
obligations. She enjoys watching television and reading
every day. She spends time with others and goes to the
doctor and stores on a regular basis. She reported that her
impairments affect her ability to lift, squat, stand, reach,
walk, sit, kneel, stair climb, memorize, concentrate, and
use her hands. However, she reported she can walk half a
mile before needing to rest. She can pay attention for
about a half hour, and can follow written instructions (such
as a recipe) very well, and spoken instructions, " pretty
good" (Exhibit 6 E, P. 1, 10, 2, 4-9).
On August 5, 2012, the claimant also completed a Pain
Questionnaire. There, she reported that her pain began
around October 1993 in her head, hands, arms, and left
leg. She reported she has pain every day and activities of
daily living exacerbate the pain. She reported she takes
prescribed pain medication (Dr. Carlisle) and the side
effects are insomnia. She reported that sleep relieves the
pain and around June 1994 the pain started to affect her
activities. She described her daily activities as walking,
shopping, household chores, and socializing. Asked to
describe whether there were any changes to her activities

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since the pain began, she indicated , “none” (Exhibit 5 E, P.
2-3). On August 5, 2012 the claimant completed a Work
History Report, and she responded by writing “does not
apply” as her answer (i.e., no work history to report).
Exhibit 4 E, P. 1-10.
On August 6, 2012 she completed (hand wrote) a Hand
Questionnaire, which she received sometime after July 25,
2012. Exhibit 7 E, P. 1, 2-3, 4. She reported that with her
hand pain it is hard to button up her blouses, tie her shoes,
and button her jeans. She reported she has a hard time
styling her hair and using eating utensils. She reported she
had to cut her hair so it is easier to manage. She can
prepare meals with help. She reported that when
cooking she has a hard time dealing with pots and pans
and stirring for a significant amount of time. She reported
her hands constantly ache and give out randomly. She
does not drive, and in her spare time she watches
television and reads. She further reported she is right
handed and has difficulty writing, typing (her wrist and
fingers lock up on me), and sometimes grasping and
turning a door knob (Exhibit 7 E).
On a Disability Report-Appeal, received October 17,
2012, the claimant reported that around July 10, 2012,
her left leg gave out while hanging a picture. Her
medications were Aleve for pain, Orbivan for head pain,
and Tylenol for pain. She complained her headaches
were worse, a 9 or 9 and 1/2. This report was completed
by the claimant on the internet, using a computer,
apparently from her attorney's office (Exhibit 9 E, P. 1-6).
On September 5, 2013, the claimant completed her list
of medications, See, Exhibit 11 E, which is hand written.
On her original application, dated June 26, 2012, the
claimant reported owning a 1995 Nissan Quest and a
1995 Nissan 240 (vehicles), and she indicated that she
had a checking account and a savings account with the
Navy FCU (Federal Credit Union). Exhibit 1 D, P. 2. On
June 26, 2012, the claimant was interviewed in
connection with her application (Disability Report-Field
Office-Form SSA- 3367) by J. Wesson, and this form
indicates that it was a tele-claim interview with the
claimant, and that the claimant had no difficulty with

9

hearing, understanding, coherency, concentration, talking
or in answering as the interview was conducted. Exhibit
1 E.
The claimant's first hearing was scheduled for
November 20, 2013. On November 7, 2013, less than
two weeks before the hearing, the claimant was seen by
John R. Goff, a neuropsychologist, upon referral by the
claimant's attorney, Exhibit 11 F, P. 1, for a consultative
examination. The report was transcribed November 11,
2013 and Goff signed the medical source opinion
(mental) of claimant's residual functional capacity
assessment November 12, 2013 (Exhibit 11 F, P. 7, 9),
and, apparently, this exhibit was added to the file shortly
just before the hearing. After this first hearing, another
psychologist consultative examination with IQ testing
was obtained by the administration, on April 7, 2014,
after a neurologist consultative examination was first
obtained January 8, 2014, Exhibits 12 and 13 F.
At the first hearing, held on November 20, 2013, the
claimant testified that she was 5'3" tall and weighs
between 112-115 pounds. She testified she is married
with four children, ages 30, 28, 22 and 17. She has lived
in the Demopolis, AL area since July, 1995. Contrary to
her earlier report, she testified that she had dropped out
of the 10th grade. She testified she is right handed, and
can read, write, and do simple math. She has a
telephone at home, and did not have problems using it
unless she forgot a number, and then she would ask one
of her children to give her the number. She testified that
her 22 year old daughter and her daughter's child (her
granddaughter) lived with her. She currently gets $614
per month in Food Stamps. When she was raising her
children, if they were sick, she would get her mother-inlaw to take she and the child to the doctor, and she (the
claimant) would give them prescription medications as
necessary. She had a bank account and used a debit
card to obtain money or spend money in the account.
She later admitted to writing checks on the account, but
indicated that after 2002 hand problems prevented her
from gripping a pen. With it (the bank account) she

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bought things for the house and clothes, for example.
One of her children drew social security payments on
her father's account, as much as $585 per month, which
she controlled since 2002, for roughly 8 years. She does
not have a driver's license; however, she took the test and
failed it and was too embarrassed to try again. She
testified she has never worked and cannot work due to her
hands, left leg, and headaches. She testified she has
headaches four times a week and has to lie down, take
medication, and have quietness. She testified she has
trouble walking due to poor circulation and her left hip has
inflammation due to a slight hip fracture. She testified she
was in a motor vehicle accident and she was the only one
to survive. She testified that the pain in her right wrist and
elbow stems from the accident and has continued to have
pain in her right elbow, a 9, but her wrist is fine right now
(at the time of the hearing). She testified she has high
blood pressure. She testified she goes to the restroom
about seven times a day and her medication makes her
drowsy.
Regarding her activities of daily living, she testified she
grocery shops, cooks, and does housework, with the
assistance of her daughter. She testified that her daughter
assists with buttoning her clothes. She testified she can
brush her hair, but cannot use curling iron. She can wash
dishes with her daughter's assistance and has to lie down
about three hours a day. Regarding her physical abilities,
she testified she can not carry anything too heavy because
her hands give out. She testified she can grip a half gallon
of milk with her right hand, but has to use her left hand for
assistance. She testified she can stand, but after ten
minutes she has to move around. She testified when sitting
she has to move around.
Dr. Calvin Johns, a medical expert, testified at the first
hearing held November 20, 2013, that, after reviewing the
entire record, the claimant did not meet or equal any of the
listings. He noted complaints and medical issues
concerning hypertension, headaches, a contusion on one
of her feet, a post concussive syndrome, some vertigo, a
history of a wrist fracture, and a partial pancreatectomy.
See, Exhibit 4 F, P. 1 4-16; 3 F; 5 F, P. 16, 2-3.

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At the August 20, 2014, hearing, which was a continuation
of the November 20, 2013 hearing, the claimant testified
she has four adult children, and she lives with her eighteen
year old, twenty-two year old and a granddaughter. She
has never had a driver 's license and does not drive. She
testified she took the GED test twice, but could not pass it.
She again testified to no mental heath treatment. She
testified she still has headaches about four times a week.
She testified she lies down five to five and a half hours
during the day. She takes fluid pills for high blood pressure,
which makes her go to the restroom about eight to nine
times a day. She cannot button her blouse or jeans, tie her
shoes, or fix her hair because of hand pain. She testified
she takes an antibiotic shot because she does not have a
spleen. Regarding her physical abilities, she testified that
she can lift only a five pound bag of potatoes. At this
hearing, she was wearing two wrist splints, and she
testified she has worn them every day for the past twenty
years, off and on. Regarding her activities of daily living,
she testified she and her daughter do the household
chores.
After reviewing the file exhibits and hearing the claimant
testify, Dr. Doug McKeown, a psychologist medical expert,
testified at the second hearing that the claimant had been
in a tragic car accident, where people were killed. She had
attended a consultative psychological examination in
September 2012 and there was no indication of a mental
health disorder at that time, as the assessment was for a
pain disorder. See, Exhibit 2 F, P. 3, 2, by Dr. Tocci, a
psychologist, who thought she was within the average
range of intellectual ability. Dr. Mckeown noted she had a
recent IQ score of 63 that was not valid for considerations
of mental retardation.
Exhibit 11 F [Dr. Goff, indeed, stated there that, “I do not
think that this lady is mentally retarded.” at P. 4]. For a
functioning issue related to a cognitive disorder secondary
to head trauma, the issue is not mental retardation. He
indicated that Goff 's mental RFC had no marked
impairments in the areas of adaptive living skills which were
significant which would be related to cognitive functioning

12

related to a head injury, although there were indicated a
number of marked impairments for work activities. Exhibit
11 F, P. 8-9. He noted that Dr. Reynolds consultative
examination found a retest IQ of 75, with a RFC
assessment with only minimal limitations, and functioning
in the Borderline IQ range. Exhibit 123 F, P. 4-5. He
indicated these IQ scores would have been elevated by a
practice effect, though the amount of increase was not
specified. He noted Dr. Goff 's response to Dr. Reynolds,
Exhibit 14 F, indicating criticism of his IQ results due to
practice effect, but Dr. McKewon [sic] did not find any
reason to conclude that her functioning assessment was a
result of the retest. He testified that the achievement testing
(WRAT-III) was worth noting, and that it indicated she read
at a 6th grade level, and that overall she is functioning in
the borderline (IQ) range, so that her functioning level
would not meet the requirement for mild mental
retardation; and, the evidence did not show that she was
mentally retarded prior to the age of 22. He testified that
she had alleged some depressive symptoms; however, they
are not being treated. Dr. McKeown opined that there may
have been some decline of function since, 1993, but not as
significant as Dr. Goff indicated, but perhaps more than as
indicated by Dr. Reynolds. Overall, Dr. McKeown testified
that the appropriate listings to be considered were 12.02
and 12.04, and that according to listing 12.02 and 12.04 the
claimant does not meet or equal the requirements of the
listings. As to the “B” criteria, Dr. McKewon [sic] found only
mild limitations in activities of daily living and in social
functioning, moderate limitations regarding concentration,
persistence and pace, and no episodes of decompensation
demonstrated by the record. He gave her “marked”
limitations for the performance of complex tasks, but only
“mild” impairments or limitations regarding the performance
of simple tasks, with mild to moderate limitations regarding
social functioning and as regards concentration,
persistence and pace. Both Dr. Reynolds and Dr. Goff
employed forms which defined “mild” as, “There is a slight
limitation in this area, but the individual can generally
function well.”, Exhibit 13 F, P. 7 and Exhibit 11 F, P. 8.
When Dr. McKeown was cross-examined by the
representative as to his familiarity with other tests, he
testified that the claimant had been administered several

13

test, by Dr. Goff in particular. He was not familiar with a
Victoria validity test, was familiar with the WAIS- Fourth,
was familiar with the Ratan Indiana phasing test (and for
which in Mckeown's own assessment he did indicate some
limitations in that area), a trail making test he was familiar
with (which she did not score well on, impaired by pain?),
a Wexler memory test he was familiar with, and a grooved
pegboard test he was familiar with. When asked about the
claimant's coma, Dr. McKeown referred to the consultative
report by Dr. Freij, a neurologist, and indicated he had
considered it in giving her marked limitations re complex
tasks, and at least “ mild” as to simple tasks.
The medical evidence at Exhibits IF and 3F-8F is well
outside the claimant's amended alleged onset date of June
14, 2012, but it has been reviewed and taken into
consideration by the undersigned, particularly for the
purpose of understanding the claimant's medical
complaints and for assessing credibility. This evidence
includes records from North Carolina Department of
Human Resources Emergency Medical Services,
Fitzgerald and Perret, Nash General Hospital, Sentara
Norfolk General Hospital, Southeastern Neurology Group,
Portsmouth Orthopedic Associates, and Nathan Goldin,
M.D.
On August 15, 1993, North Carolina Department of Human
Resources called the ambulance services due to a motor
vehicle accident involving two subjects pinned in a vehicle
(Exhibit 3 F). On arrival at Nash General Hospital on
August 15th, the claimant (Sheryl Boone) suffered from
multiple left sided rib fracture with left hemopneumothorax,
splenic laceration, blunt pancreatic transection , multiple
abrasions and contusion, possible left scaphoid fracture,
and possible sacral and left acetabular fracture. She was
admitted and underwent surgery due to internal bleeding.
An x-ray of the left hand indicated a questionable scaphoid
fracture. She underwent a laparotomy, which revealed a
hilar tear of the spleen and she had a blunt pancreatic
transection in the mid portion of the pancreas. Post
operatively she was described as having a level of
consciousness that was “quite blunted”, but a CT scan of
the head was negative, with no hemorrhage present, no
lesion seen, and no skull fracture. On the 24th she was

14

alert and oriented. She was discharged on the request of
family and transferred to Sentara Norfolk General Hospital
on August 24,1993, in stable condition (Exhibit 4 F, P. 7, 9,
14-16, 9). While at Sentara Norfolk General Hospital, she
had a computed tomography (CT) of the head, which was
unremarkable. A CT of her abdomen showed multiple rib
fractures and postoperativ e changes in the abdomen with
splenectomy and distal pancreatectomy. At discharge, she
was ambulating without difficulty and was tolerating a
regular diet. She had a psychiatric consult, which indicated
that she was reasonably stable but she was to follow up as
needed. She was discharged on September 1 4 , 1993, in
stable condition (Exhibit 5 F, P. 2-3, 10), about 30 days
after the accident. These reports do not reflect that the
claimant was in a coma for some number of days; they
only indicate that she was at a level of consciousness that
was “quite blunted”, meaning being slow in perception or
understanding, but not suffering a total loss of
consciousness.
November 11, 1993, she was treated at Portsmouth
Orthopedic Associates with complaints of her right wrist
weakness and pain. Exhibit 8 F, P. 1, 2. On October 6th Xrays showed a right wrist distal radius fracture which was
healed. It was noted she was given an AOA wrist splint and
she reported it had improved her pain. On October 15th,
she saw Dr. Lannik, and denied any symptoms at that time,
no numbness, no tingling, etc. On November 3d, she saw
Dr. Wardell, and noted that her right wrist was sore, but
improved. She had Jamar grip strength testing of 50
pounds left and 40 pounds right. X-rays of the right
forearm showed the distal radius fracture had healed. She
was advised to continue the strengthening program. On
November 11th, the orthopaedist, Dr. Wardell, opined that
she was recovering from her right wrist fracture and no
permanent physical impairment was anticipated. On April
27, 1994, the same doctor noted complaints of right wrist
weakness, but no pain complaints. EMG and nerve
conduction velocity studies had recently been done, which
were negative (Exhibit 6 F, P. 3, 4; no evidence of
compression or entrapment neuropathy, underlying
neuromyopathy, right sided brachial plexopathy, or of
cervical radiculopathy). Dr. Wardell opined that the
claimant had sustained a distal radius fracture, which was

15

healed; however, there was no permanent physical
impairment anticipated, even though aching in the right
wrist would continue (Exhibit 8 F, P. 3, 1). On November
16, 1993, she saw a D.O., David Biondi, at Southeastern
Neurology for headaches. As past medical history, the
claimant reported being in a coma for 5 days, awoke
confused after a MVA on August 15th, which lasted for 4
weeks. See, Exhibit 6 F, on P. 1, before the examination
notes. She reported chronic headaches in her frontal
periorbital area that was associated with dizziness. She
was examined and assessed with post concussive
syndrome, with the headaches a major component of the
post concussive syndrome, and Ibuprofen and Elavil were
prescribed (Exhibit 6 F, P. 1, 2). She had no pronator drift,
her muscle strength was rated 5/5 and she had normal
muscle tone, a normal gait, which was not ataxic. She was
to follow up in 3 weeks, but no other notes from this
provider are of record. It appears the doctor's reflection of
a concussion was based solely upon the claimant's report,
and is not borne out by the existing medical records.
As previously noted, on March 14, 1994, the claimant had
undergone a EMG/nerve conduction study of the right
upper extremity. Dr. Rahman noted that the study was
within normal limits, without any electrophysiologic
evidence of a compression or an entrapment neuropathy,
underlying neuromyopathy, right-sided brachial plexopathy,
or cervical radiculopathy (Exhibit 6 F, P. 4). March 25,
1994, she saw Nathan Goldin, MD for a follow up of her
abdomen. He noted that she was a 27 year old black
female, status post a motor vehicle accident, who had a
history of 3 vaginal deliveries, complaining of an increasing
stress type urinary incontinence over the last year. He
noted that, at that time, she took no long term medications.
Her urinalysis was normal, no flank tenderness, normal
abdomen and pelvic exams. Her examination was
unremarkable, except she had a mildly positive Marshall
test indicative of mild stress incontinence. She was started
on Kegal exercises, which with her mild symptoms were
expected to improve her voiding over the next 6 months
(Exhibit 7 F). April 27, 1994, she had an unremarkable
examination of her wrist; there was a negative Tinel 's test,
and full range of motion. Her grip strength was fifty pounds
on the left and only fifteen pounds on the right. She was

16

encouraged to do right wrist strengthening exercises
(Exhibit 8 F, P. 3).
There are no medical records of record after the Spring of
1994 until March of 2008. She was treated at Fitzgerald and
Perret (clinic) from March 2008 to May 14, 2008. These
visits included complaints about her blood sugar, shortness
of breath, dizziness, and an itchy throat, with a diagnosis
history of arthritis listed, but they do not list any headache
complaints. She was assessed with hypertension,
positional vertigo and treated with medication management
(Exhibit IF, P. 17, 14-15, 12). Exhibit 1 F also includes
visits on June 15, 2012, June 6, 2012, August 30, 2011, as
well as the May 14, 2008, April 1, 2008 and March 19,
2008 visits. On August 30, 2011 the claimant's complaint
centers upon right foot pain after she hit her foot on a
chair. She had no headache, no facial pain and no sinus
pain, no anxiety, no depression and no sleep
disturbances, a normal back, and she was oriented to
time, place and person. She was assessed with a foot
contusion and hypertension. Exhibit 1 F, P. 9-10, 11. She
has no visits of record until June 6, 2012, when she
reports injuries to her right arm and head after trying to
break up a fight the previous Sunday. Exhibit 1 F, P. 5. On
that visit she had no headache, facial pain or sinus pain,
no neck pain, stiffness or swelling. She also had no joint
pain, muscle aches, or joint stiffness. Exhibit 1 F, P. 7. On
June 15, 2012, the claimant had a normal musculoskeletal
exam except for right foot edema, with a normal gait and
stance, normal back, no anxiety, no depression and no
sleep disturbances , no vertigo, no dizziness, and no
headache, no facial pain and no sinus pain. Exhibit 1 F, P.
2-4. Her chief complaint had to do with the removal of
staple(s) from her head, and she was oriented to time,
place and person, and was in no acute distress. At that
time, she was noted to have had a laceration to the head,
which was well healed, a contusion to the foot with intact
skin surface, and hypertension. Exhibit 1F, P. 4. From the
above it is apparent that the claimant had no headache
complaints and no depression that was treated by medical
care professionals that are of record from the Spring of
1994 through the middle of June 2012.
After careful consideration of the evidence, the

17

undersigned finds that the claimant's medically
determinable impairments could reasonably be expected
to cause only some of the alleged symptoms; moreover,
the claimant's statements concerning the intensity,
persistence and limiting effects of these symptoms are
not entirely credible for the reasons explained in this
decision. In general, I do not find this claimant 's
complaints to be credible, as has already been
demonstrated above in the discussion of the medical
records, and which will be addressed further below. In
that connection, I observe that the reports of her
presentation for doctor and other visits reflect
inconsistencies with her now made contentions of
disabling conditions, and these are noted and are of
consequence in assessing her overall credibility.
As previously indicated, on August 30, 2011, she
presented to Fitzgerald and Perret with complaints of
right foot pain after hitting it on a chair. Physical
examination indicated her blood pressure was a little
elevated and she had some edema on the lateral aspect
of her right foot. She was assessed with newly treated
hypertension and a contusion, with intact skin of the
foot. Consequently, she did not return until June 6, 2012,
some ten months later, with complaints of an injury to
her head and right arm. She reported she was trying to
break up a fight and sustained a laceration to her head
and right arm. It was noted she had staples intact to the
scalp, with no evidence of infection and an abrasion to
the right arm, which was healing. She was treated with
prescribed medication. She returned June 15, 2012, to
have the staples removed from her head, which she
tolerated well, as 17 staples were removed (Exhibit 1 F,
P. 4). She returned a month later, on July 12, 2012, with
complaints of a headache and follow up of her staple
removal. She complained of a right temporal headache
at the staple site, after an altercation the previous June
4th.but she had no other symptoms, was only taking a
blood pressure medication (Lisinopril). She had no
depression, anxiety or sleep disturbance, no dizziness or
vertigo. Her physical examination was unremarkable and
she was assessed with hypertension, headache

18

syndrome, and nicotine dependence (Exhibit 9 F, P. 19,
21), but no headache medications were prescribed at
that time.
At the request of the Disability Determination Services,
she underwent a consultative examination on September
11, 2012, conducted by Nina Tocci, PhD, a psychologist .
When asked why she was disabled, she reported a bad
car accident in 1993 with various physical injuries.
Exhibit 2 F, P. 1. She reported being in a coma for 12
weeks. This is certainly not true. She reported receiving
counseling secondary to depression in 2007 [no record
of this, either]. She reported being separated from her
second husband of 18 years, and she had a son by that
marriage, who she reported was then age 16. Her first
husband of 9 months was killed in the car accident, and
she had a then 20 year old daughter by that relationship.
She denied any work, military or legal history. She
reported that she left school from the 11th grade
secondary to pregnancy (the daughter). [If her son was
1 6 years old in 2012, this means he was born
approximately 1996, about 3 years after the car accident]
Her posture and gait were normal and her motor activity
was unremarkable. In her mental status examination,
she had good eye contact, responsive facial expression,
and a cooperative attitude, and she spoke without
impediment. Her affect was appropriate, normal, and
stable and she described her mood as, “just in a little
pain”. She demonstrated thought content appropriate to
mood and circumstances and a logical thought
organization, and was oriented to time, place, person
and situation. She was able to name the president and
immediate past president of the United S t a t e s . She
evinced good social judgment in her consideration of two
social dilemmas and she demonstrated some insight into
her behavior. She did report her “pain” as an 8 on a scale
of 10, due to her previous injuries. She reported rearing
two children, one from each of her marriages. In general,
Dr. Tocci noted that she appeared to be functioning in the
average range of int elligence, ability. She noted that the
claimant could prepare meals and complete housework,
and that she had friends with whom she talked . Her
diagnostic impression was only: a pain disorder, with a
global assessment of functioning score (GAF) of 60.
(footnote omitted). Dr. Tocci opined that the claimant
appeared to have the cognitive ability to engage in work-

19

related activities (Exhibit 2 F, P. 2-3), but that her ability to
engage in physical activities would have to be evaluated
by a physician. The undersigned finds Dr. Tocci's
assessment and opinion quite interesting, as of the time it
was rendered, and in many aspects it is consistent with
much of the other evidence, when considered as a whole.
Four months later on November 26, 2012, she returned to
Fitzgerald and Perret for a follow up on her headaches.
She reported that the headaches were on the right side,
where she had 22 staples after breaking up a June 2012
altercation . She further reported that she has been having
headaches since her 1993 motor vehicle accident, with
treatment by Dr. FG since 1995, the year she moved to the
area. She had an unremarkable physical examination, no
anxiety, vertigo, depression or dizziness, and no muscle
aches, no localized joint pain, and no localized joint
stiffness, no facial pain and no sinus pain. She was
assessed with a headache syndromes [sic] and prescribed
Topomax 25 mg twice a day, which is a starting dose
(Exhibit 9 F, P. 15-18), for a trial period. It is interesting
that although she reported headaches since her accident
in 1993, there is no record of her seeking any medical
treatment for any headaches for some 18 or 19 years, and
it would appear from the record that she got no medical
treatment for headaches prior to, or as a result of, the June
2012 altercation, with a head injury which required some
17 to 22 staples to close.
January 4, 2013, she returned to Fitzgerald and Perret with
complaints of arthritis pain in her hands, headache on
entire right side where staples were a few months ago, and
pain in her left knee, after falling yesterday. However, her
review of systems indicated no (current?) headache, no
facial or sinus pain, no neck pain, no muscle aches or joint
pain, and no depression or anxiety. Her back was normal,
overall musculoskeletal system was normal, and her gait
and stance was normal. Again, her physical examination
was unremarkable, but her left knee was treated/wrapped
with a three inch ace wrap. She returned January 21, 2013,
for vaginitis and a pap smear, which was normal, and on
January 28, 2013, she had a pelvic ultrasound, which was
unremarkable (Exhibit 9 F, P 11-14, 7-10, 4-6).

20

Four months later, on May 31, 2013, she returned to
Fitzgerald and Perret for a follow up of her headaches,
which she reported had resulted from her hitting her head
against a door jam during an altercation. She reported she
was not feeling any better. No other symptoms reported.
Review of systems noted that her headaches were over the
right temple, with no facial or sinus pain. Her physical
examination was unremarkable, with no joint pain, no
muscle aches, no anxiety, no depression, normal gait and
stance, a normal routine physical and history; she was
prescribed Fioricet for her headaches. Fioricet is a
barbiturate and pain reliever combination, prescribed for
tension headaches. It is not recommended for recurrent or
multiple headaches. The Pill Book, 15th Edition, Page
501-502. Five months later on October 3, 2013, she
returned for a follow up on her headaches. She had no
anxiety, depression and no sleep disturbances, no
dizziness or vertigo, no neck symptoms/pain. She reported
that the headache medication was not working and she
complained of arthritis in her arms. She had a normal
physical examination, was treated with medication
management (Exhibit 10 F, P. 6, 7-8, 9; 2-5), and she was
to be referred to a neurologist in Tuscaloosa; she was
prescribed medications: meloxicam for knee joint pain and
ketorolac tromethamine. Her visit on October 24, 2013,
was for a transthoracic echocardiogram, which indicated a
good pump but a leaking tricuspid valve, not
physiologically important, ejection fraction of 59 % (Exhibit
15 F, P. 8, 9-10, 6), although Head Injury, NOS was listed
as an active problem, there was no mention of headaches
as an issue in this note.
At the request of the claimant's attorney, she underwent a
psychological evaluation on November 7, 2013, just
before our first hearing, conducted by John Goff, PhD. Dr.
Goff noted that the claimant was pleasant and cooperative,
but somewhat garrulous (excessively talkative). She
reported being born in Portsmouth, Virginia and grew up
there, and had not ever been treated for any sort of mental
or emotional difficulties. However, she did not appear
apprehensive or anxious. She related being in pain a good
deal of the time, and that the principal problem is headache.
She denied being depressed. Dr. Goff administered several
psychological assessments to the claimant; specifically the

21

Wechsler Adult Intelligence Scale (WAIS-IV), where she
obtained a full scale IQ score of 63. Dr. Goff noted that this
score fall within the mildly retarded range of psychometric
intelligence. However, he opined that he did not think she
was mentally retarded, but that this represented a decline
from previous levels of function, which were not specified.
Her handwriting was readable, she was able to read a
sentence at least at the 5th grade level, and she was able
to perform simple math calculations on paper. She was
able to provided personal and current information, and was
able to name the president and the previous president, as
well as the sheriff of her county, and she was able to recite
the alphabet. Dr. Goff noted that, during the examination,
the claimant was able to understand, follow, and carry out
simple and some complex instructions. He opined that she
cannot remember instructions for more than a few minutes
or in regard to any tasks which are difficult. He opined that
she would be seen as slow and prone to error by
supervisors, coworkers, and others and her ability to deal
with the stresses and pressures of the workplace is an
academic issue at this point. He concluded by saying that
she is functioning within the mildly retarded or intellectually
disabled range. He diagnosed the claimant with dementia,
secondary to closed head injury, organic amnestic disorder,
and rule out mental retardation mild (Exhibit 11 F, P. 3-6).
The undersigned does not concur with Dr. Goff's opinion
because it is inconsistent with the evidence as a whole,
including the opinions of Dr. Tocci and Dr. Reynolds and
the psychologist expert witness, Dr. McKeown.
Dr. Goff also completed a Medical Source Opinion Form
(Mental). He opined that the claimant has moderate
limitations in her ability to understand simple instructions, in
responding to customary work pressures, using judgment
in simple one or two step work related decisions, and in
maintaining activities of daily living. Here, moderate is
defined as being more than a slight limitation in this area,
but the individual can still function satisfactorily. He opined
she has marked limitations in: understanding detailed or
complex instructions, carrying out simple, detailed, and
complex instructions, remembering simple, detailed, or
complex instructions, responding appropriate to coworkers,
supervisions, customers, and the general public, dealing
with changes in routine work settings, using judgment in

22

detailed or complex work-related decisions, and her
constriction of interests. He lastly opined that she has an
extreme limitation in maintaining attention, concentration,
or pace for periods of at least two hours (Exhibit 11F, P. 89). Marked and extreme limitations indicate substantial loss
to no useful ability to function in the area of concern.
After the first hearing, on January 8, 2014, she attended a
consultative examination conducted by Walid Freij, MD, a
neurologist. She reported chronic headaches since her car
accident in 1993, with head trauma and concussion, with a
coma for 5 days, and described the pain as throbbing in
nature associated with photophobia phonophobia.
Interestingly, she remembered that her husband was
driving, she was a front seat passenger with her seatbelt
on, and they were hit by another car on the driver's side.
Her husband and two passengers in the back seat, plus
the driver of the other car, were killed. However, she said
she does not remember all of the details of the accident.
She also reported having pain and numbness in her hands
since the accident in 1993, but no weakness, but with
bilateral fractures of her wrists. Physical examination
indicated that her blood pressure was 117/94 and she was
in no acute distress. Her cervical spine was normal, no
limitations, as was her lumbar spine; she did not use an
assistive device. She was alert, and oriented times 4. She
had slight tenderness noted over the wrist, with no swelling.
Her cranial nerve examination was unremarkable and she
had 5/5 motor power throughout, an unremarkable gait.
She had a NCS/EMG of both upper extremities, which was
normal; it did not show any evidence of carpal tunnel
syndrome, cervical radiculopathy or peripheral neuropathy
affecting the upper extremities, and no evidence of
denervation; this meant that her reported hand pain was
likely related to the fractures she reported from the car
accident. His assessment is apparently based upon the
claimant's self report of her injuries from the motor vehicle
accident. Dr. Freij opined that based on the physical
examination and the above history she gave, the claimant
would have difficulty maintaining a productive job because
of her chronic headaches. He opined that this car accident
event has affected her life markedly, causing her to feel
depressed, and she would be limited in terms of carrying
and lifting due to pain in her wrist secondary to the

23

fractures she had during the accident. He lastly opined,
however, that she is able to stand, walk, hear, speak, and
travel (Exhibit 12 F, P. 2, 3-4, 5-8).
Dr. Freij also completed a Medical Source Statement of
Ability to do Work-Related Activiti es (Physical) the same
date. Noting her hand pain complaints, he opined that the
claimant can frequently lift and/or carry up to ten pounds
and occasionally up to twenty pounds . She can sit eight
hours at one time and for a total of 8 hours in an eight hour
workday. She can stand four hours at one time and five
hours in an eight hour workday. She can walk four hours at
one time and for five hours in an eight hour workday. She
can occasionally reach (including overhead), handle, and
push/pull bilaterally. She can frequently finger bilaterally.
She can continuously use her feet for foot controls
bilaterally. She can frequently climb stairs, ramps, ladders,
scaffolds, balance, stoop, kneel, and crouch and can
occasionally crawl. She can frequently tolerate exposure to
unprotected heights, moving mechanical parts, loud noises,
and operate a motor vehicle. She can occasionally tolerate
exposure to humidity , wetness, pulmonary irritants, extreme
cold, and extreme heat. Her hearing and vision are
unaffected by any of the impairments, and she can perform
activities like shopping, travel without the assistance of a
companion, ambulate without an assistive device, walk a
block at a reasonable pace, prepare a simple meal and
feed herself, handle her personal hygiene, and she can
sort, handle and use paper files (Exhibit 12 F, P. 9-14). I
would note, however, that the objective medical evidence
from the nerve conduction studies/ EMG report would not
support any significant hand restrictions, nor the clinical
observations made at the time he saw her.
On April 7, 2014, at the request of the administration, she
attended a consultative examination conducted by Richard
Reynolds, PhD, a psychologist. The claimant reported
headaches (which occur approximately every other day),
hands giving out, left leg inflammation, arthritis pain in her
arms, and memory loss. For the first time in this record, she
reported seeing someone for anger issues as a child in
Virginia. As for her MVA in August 1993, she reported that
she was in the hospital for 12 and 1/2 weeks [the record
only supports Aug. 15-Sep 14, 1993] following the MVA and

24

with memory problems since the accident, except for
household chores, which she has no difficulties
remembering. Her medical history was reported as
hypertension and arthritis. She reported quitting school in
the 10th grade due to pregnancy, and indicated that she
was in regular education classes (not special ed). She
reported living with her daughter, granddaughter and 18
year old son in an apartment in Demopolis, Alabama.
Exhibit 13 F, P. 2, 3-4. Mental status examination indicated
she was well-nourished and well-developed, alert and
oriented times 4. Her recent memory was good, as
demonstrated by her recall of recent meals. Her speech
was within normal limits for rate and flow. She described
her mood as “up and down”. Her affect was euthymic
(which means normal), and she demonstrated appropriate
concentration and attention. Her fund of information was
consistent with borderline intellectual functioning. Her
thought process was tight and her thought content was
logical. Her judgment and insight were appropriate for her
level of intellectual functioning. She reported that she
typically eats meals, 4 per day, and she and her daughter
do the cooking and grocery shopping. She manages her
own finances and does her activities of daily living (ADLs)
without assistance. When she awakens she takes her
medication, drinks coffee and eats breakfast, and after
breakfast she takes another medication. She will get up
when her daughter comes home and walks to the store,
comes back home and watches TV. She is a member of a
church. Dr. Reynolds administered the WAIS-IV to the
claimant, and she obtained a full scale IQ score of 75, with
verbal comprehension of 76, perceptual reasoning of 71,
working memory of 77, and a processing speed of 100.
Wide Range Achievement Test, 3d Edition (WRAT-III), test
scores indicated the claimant to have a 6th grade reading
and spelling ability and a 5th grade arithmetic ability. Dr.
Reynolds diagnostic impression was borderline range of
intellectual functioning, and he found her to be basically
literate. He noted that the claimant's reported information
regarding daily functioning and forgetfulness in the home
was not consistent with her presentation during his
evaluation. Exhibit 13 F, P. 4-5. He further noted that she
reported that her daughter was in college and that she took
care of her six year old granddaughter while her daughter
attended school (Exhibit 13 F, P. 6). Dr. Reynolds was

25

aware of Dr. Goff's evaluation, previously discussed, and
that he had indicated marked deficits in many areas;
however, he (Dr. Reynolds) did not find any marked deficits
in the claimant's daily functioning. In contrast, Dr. Reynolds
found the claimant to be a lucid individual who is quite
verbal and quite fluent, and who was able to remember her
recent meals, trip to the examination and (other) recent
events. She was able to provide extensive historical
information, including dates and specific information
concerning these events. In his opinion, she was capable
of managing funds. The undersigned concurs with Dr.
Reynolds's assessment and opinion, because it is
consistent with the evidence as a whole.
Dr. Reynolds also completed a Medical Source Statement
of Ability to do Work-Related Activities (Mental). He opined
that the claimant has no more than mild limitations in her
ability to carry out, understand, and remember complex
instructions, with no other work related limitations (Exhibit
13 F, P. 7-8). Here, “mild” is defined as, “There is a slight
limitation in this area, but the individual can generally
function well”, which is defined the same way in Goff's
material. See, Exhibit 11 F, P. 8.
In a letter addressed to the Mr. Coplin, on May 15, 2014,
Dr. John Goff addressed the differences between the
scores he obtained on the claimant's WAIS-IV assessment
and the scores of Dr. Reynolds. He asserted that the
differences in the IQ scores have to do with a practice
effect, which he maintains is well documented in the
articles he included, and the possibility that there may have
been some other source of variance perhaps error in this
one very substantial outlier subscale and outlier index
score. He pointed out that his diagnosis in the case was for
dementia secondary to a closed head injury, because of
historical information and other aspects of the evaluation
besides the intellectual assessment. He suggested that the
record, including his entire evaluation, rather than just the
IQ scores, be considered in evaluating the case (Exhibit
14 F, P. 1-2). The article, written in 2009, which I have
read, which Goff referred to, appears attached to the letter,
at Exhibit 14 F, P. 4-16, with references to support the
article at P. 16-19. However, even this article notes that
practice effects appear to have less of an impact on

26

individuals with lower IQs than for individuals with higher
IQs, Exhibit 14 F, P. 11, which only makes common sense.
The article notes that less information is available to
assess the practice effects of repeated administrations of
the WAIS-IV, but the available information for the WAIS-IV
dealt only with retest intervals of 8-82 days, with a mean
interval of 22 days, not 6 months (180 days) later, as in the
present case. Moreover, the article notes that the WAIS-IV
reduces time bonuses on Arithmetic and Block Design
items, which the article indicates to be useful in reducing
the tendency of performance items to be positively affected
(increase scores) by practice effects. Exhibit 14 F, P. 8. As
a result, the practice effects, and to what extent, the actual
effect, of a retest of the WAIS-IV 6 months later are not
clear, if any. Most of the test-retest studies for all IQ
instruments involved relatively short timeframes for the
retest, with practice effects which were most evident within
short time frames (less than 3 months, or 8-82 days), with
smaller gains expected on intervals of longer duration.
Many of the studies cited involved retest periods of two
weeks or up to 30 days or less. Retest intervals that are
relatively long, over 6 months, however, do not permit the
test taker to remember most aspects of the test's contents,
which in turn reduces the magnitude of the practice effect,
if any. Exhibit 14 F, P. 11. The attached abstract is
irrelevant to this case, as the 54 participants studied there
have a median age of 20.9 years, a median education
level of 14.9 years (a high school plus 2 -3 years of
college education), and initial Full Scale IQs of 111, see
Exhibit 14 F, P. 3, and those demographics do not fit the
present situation, as the claimant is not a younger
individual in the sense that at the time of test taking she
was not a twenty something year old person, her education
level is either as a 10th or 11th grade drop out, and her
highest tested IQ is in the FS=75 Borderline range, not
initial Full scale IQs in the area of 111, which is an average
to higher than average IQ. The article mentioned has
already made the point that practice effects have much
less of an impact for those of lower IQs, and here the
claimant has a substantially lower IQ than the individuals
studied. Exhibit 14 F, P. 11. This is sort of like comparing
apples to oranges, which suggests intellectual dishonesty.
Taking all of this into consideration, I find Dr. Goff's
representations and conclusions of the claimant's abilities

27

misleading at best, and certainly not credible nor accurate
as applied to this claimant. As Dr. McKeown testified, Dr.
Reynold's WRAT results were another objective testing
instrument which did tend to show, provide evidence and
support, that the claimant was at the Borderline Intellectual
Functioning level, and that she was not testing nor
presently functioning at the mentally retarded level.
Taking all of these points into consideration, I do not find
compelling reason or evidence to conclude that this
claimant's performance when she took the WAIS-IV under
Dr. Reynolds is significantly subject to question, at least not
by the preponderance of the evidence. The psychologist
expert witness, Dr. McKeown felt this way, and he noted
the claimant's WRAT scores were consistent with the
WAIS-IV scores in indicating Borderline Intellectual
Functioning. I would point out that after her interview Dr.
Tocci, a psychologist, thought the claimant to be of
average intelligence, and, before the test was given, Dr.
Reynolds thought she was in fact borderline intellectual
functioning. Of course, it is well known that an individual
can always score less than one's true abilities on an IQ
test, due to test taking behavior, motivation , whether one
is tired, or whether one is affected by some medication,
etc., but one can never score higher than one's true
abilities. Moreover, IQ scores alone are not dispositive
when assessing intellectual ability, as one's adaptive
functioning must always be taken into account. Here, it is
noted that the claimant has raised a family (two children)
and done all the things appropriate to do so over a long
period of time (20 years or more). Mentally, she has lead a
normal life, not unlike everyone else; she shops, or has
shopped, in stores, walks where she wants to go, cooks full
meals, watches TV, uses the telephone to communicate,
and she takes her prescription medications as directed,
without memory problems, just to give a few examples.
She goes to the doctor when she deems it appropriate to
do so, and takes care of her 6 year old granddaughter in
her daughter's absence attending college. She presently
handles, and has handled, her own finances, can pay bills,
count change, and handle a checking and savings account.
She makes snacks, sandwiches, and has cooked complete
meals in the past, without assistance . She can cook using
recipes, which she reads. Exhibit 6 E, P. 5-6 and testimony.

28

For the above and foregoing reasons, I find that this
claimant is Borderline Intellectual Functioning, and
perhaps, as Dr. Tocci noted, she is higher than that. There
is no credible evidence that she was mentally retarded prior
to the age of 22, nor does she meet the listing of 12.02,
based upon the totality of the evidence, including the
psychologist expert testimony by Dr. McKeown. I am not
satisfied that she has had any significant decline in
intellectual abilities, and there is no history of IQ testing
from earlier periods to use to establish a baseline, in any
event. The available records and her testimony indicate that
she was in regular public education classes, and that she
dropped out of school as a result of getting pregnant with
her first child, her daughter, while in either the 10th or 11th
grade of high school. There are no IQ scores prior to age
22 to consider, so there is no IQ evidence prior to age 22.
There are, indeed, no indications in Dr. Fitzgerald's notes,
from his clinic, to suggest the claimant is mentally
challenged, and they consistently show that she was not
depressed, not anxious, was alert and oriented when he or
his staff saw her. She has been and is given or prescribed
medications by this clinic, with no indication that she has
any difficulty administering them to herself, as directed.
This brings into serious question Dr. Goff s assessment of
her work related abilities, and I find that it is not credible or
worthy of acceptance, as I find that it is simply invalid,
when all of the other evidence is considered, and it is
accordingly rejected. It is noted that his assessment was
bought and paid for by the claimant 's attorney, shortly
before our first hearing, after all of the physical medical
evidence had been obtained, though I just note that in
passing, as a for what that is worth, as it is not a primary
reason for rejecting his opinion, which has been pretty
thoroughly discussed. Again, it is interesting that it was
submitted just prior to the first hearing, after the physical
medical record was more or less complete.
Lastly, some nine months after her last visit to the Dr.
Fitzgerald clinic, on July 11, 2014, she returned to
Fitzgerald and Perret for complaints of having headaches,
and reported that the medication was no longer working.
Again, she did not at this time have facial or sinus pain, no
neck symptoms, no neck pain, and no photophobia. She
had no muscle aches, no localized joint pain, no localized

29

joint stiffness, no dizziness, no vertigo, no anxiety and no
depression. She appeared well nourished, and in no acute
distress. Her back was normal and the overall findings for
her musculoskeletal system were normal. She was
oriented to time, place and person. Her physical
examination was unremarkable, but she was injected with
Depo-Medrol 80 milligrams for her headache, which she
tolerated well and was also given prescribed medications
(Exhibit 15 F, P. 2, 3-5). Her hypertensive prescription
medications included Norvasc 10 mg, to be taken twice a
day, Catapres .02 mg, 1 at bedtime, and Inderal LA 8- mg,
taken twice a day. For her headaches, she was also
prescribed Soma, 350 mg, to be taken twice a day, Norco,
7.5-325 mg, once per day, and Amitriptyline HCI 100 mg, to
be taken at bedtime. She was given counseling and
instructions re the use of the medications and counseled to
cease smoking, just as she had been similarly instructed
before by clinic staff. See, e.g., Exhibit 9 F, P. 3,18, 22; 1
F, P. 6,15.
As for credibility, the undersigned finds that the claimant's
statements regarding her impairments are at best only
partially credible. The evidence in the record indicates the
claimant's functional limitations are not as significant and
limiting as has been alleged by the claimant. As discussed
above, prior to her onset date she had several surgeries
due to a motor vehicle accident, which certainly suggests
that the symptoms at that time were genuine. While that
fact would normally weigh in the claimant's favor, it is offset
by the fact that the record reflects that the surgery was
generally successful in relieving the symptoms. The
evidence indicates that her follow up treatment was
unremarkable and she did not seek any significant
treatment for well over fourteen years (2008). However,
when she did seek treatment in 2011 it was for right foot
pain that she sustained after hitting it on a chair. It was
only some ten months later in June 2012 that she
complained of an injury to her head and right arm while
trying to break up an altercation, and then in July 2012 she
complained of a headache at the staple site of the head
injury, and reported that the headaches were lingering.
Around November 2012, she complained of headaches
and reported they were on the right side where she had the
head injury in June 2012; she reported she has been

30

having headaches since her accident in 1993, but this is
not supported by the record prior to July of that year
(2012), and this negatively affects her credibility (Exhibit 9
F). There is no documentation of reported headaches until
July 2012, which is almost nineteen years later. Although,
the evidence indicates that she has continued to be treated
with a headache syndrome, she has denied dizziness,
vertigo, fainting, motor disturbances, and sensory
disturbances. There has been no evidence of radiating
pain and her cervical spine evaluations have been
consistently unremarkable. When examined by Dr. Freij,
her physical and neurological examinations were
unremarkable and he noted she did not have any facial
weakness or asymmetry (Exhibit 12 F). Furthermore, the
evidence does not document a head computed tomography
(CT) associated with or establishing evidence of headaches
and her treatment has been essentially routine and
conservative in nature, with medication management.
Regarding the claimant's history of arthritis, the evidence
indicates complaints of wrist and some knee pain. At the
second hearing, she testified she has been wearing wrist
splints on and off for the last twenty years [however, where
does this appear in the medical record?], and that she can
only lift a five pound bag of potatoes. However, the
evidence shows, indicates she recently underwent a
NCS/EMG of the upper extremities, which revealed no
evidence of carpal tunnel syndrome, cervical radiculopathy,
or peripheral neuropathy affecting the upper extremities
and there was no evidence of denervation (Exhibit 12 F, P.
5-8). Her clinic examinations have been unremarkable with
normal gait and no deformities, edema, crepitus, clubbing,
or cyanosis of the extremities. There were no neurological
deficits noted and her musculoskeletal examinations has
been unremarkable with normal range of motion of all joints
and 5/5 motor strength bilaterally. Again, the claimant is
alleging that her pain stems back to her accident in 1993.
As stated above she did not seek treatment for over
fourteen years, at least not any that is of record, and
interestingly Dr. Wardell opined in November 1993, that her
right wrist fracture had healed and there was no permanent
physical impairment anticipated (Exhibit 8F, 2). What is
more, the claimant reported falling while hanging a picture
(Exhibit 9 E, P. 2). Indeed, someone with wrist problems,

31

chronic headaches, and arthritis pain would certainly not be
reaching overhead to hang a picture if all of that was true.
Furthermore, there are no x-rays suggesting that the
claimant has any form of arthritis at the present, and her
musculoskeletal examinations have been unremarkable ,
with normal range of motion of all joints, no joint stiffness or
pain reported at her clinic.
In addition, the undersigned notes that the claimant was
listed once or twice with an indication of diabetes mellitus,
in clinic records, but this must be a mistake, as the claimant
receives no treatment for this, she did not list it as an
impairment, and has reported no symptoms for this, though
once she was concerned about her blood sugar levels,
which actually were normal (Exhibit 1 F, P. 17); however,
this indication must be related to her report that someone
in her family had it, and is simply a mistaken entry.
In regards to the claimant's cognitive disorder, suggestion
of depression, and borderline intellectual functioning, the
evidence indicates the claimant has not received any
mental health treatment in the last 20 years, nor has there
been any emergency room treatment, for a mental
disorder. In clinic records, she has consistently denied
depression up to the present. As stated above, she was
treated for a concussion in 1993 and when examined by
Dr. Tocci in September 2012 she did not report any mental
impairment; she only reported a massive head injury she
sustained in 1993. The claimant had an unremarkable
mental status examination and Dr. Tocci noted that she
appeared to be functioning within the average range of
intellectual ability. She did not diagnose the claimant with a
mental impairment, but assessed her with a pain disorder
and a GAF of 60, which would reflect only moderate
symptoms. Dr. Tocci opined that the claimant appeared to
have the cognitive ability to engage in work-related
activities (Exhibit 2 F). Some year and a half later, in April
2014, she was examined by Dr. Reynolds and reported
memory loss along with some physical impairments.
However, Dr. Reynolds thoroughly examined the claimant
and, after IQ and WRAT testing, diagnosed her with
borderline intellectual functioning. He noted she
demonstrated appropriate concentration and attention. Her
fund of information was consistent with borderline

32

functioning. Her thought process was tight and her thought
content was logical. He further noted her judgment and
insight were appropriate for her level of intellectual
functioning. Dr. Reynolds administered the WAIS-IV to the
claimant, for which she obtained a full scale IQ score of 75.
He noted that the claimant's reported information regarding
daily functioning and forgetfulness in the home was not
consistent with her presentation to him during the
evaluation. He further noted that she is able to care for her
six year old granddaughter while her daughter attends
college. Furthermore, Dr. Reynolds opined that the
claimant does not have any limitations with understanding,
remembering, and carrying out simple instructions (Exhibit
13 F).
In conclusion, the undersigned finds that the symptoms and
limitations that the claimant has provided throughout the
record have generally been inconsistent and unpersuasive.
The claimant testified she cannot work due injuries she
sustained in 1993. Interestingly, the evidence documents
treatment for her sustained injuries in 1993-1994, but
which demonstrate that she was healing properly. The
undersigned notes that the claimant has received various
forms of treatment and past surgeries for the allegedly
disabling symptoms, which would normally weigh
somewhat in the claimant's favor; however, the record
reveals that the treatment and surgeries were very
successful in addressing those symptoms, which are now
20 years old. The overall medical record that are available
suggest that the claimant's treatment history is inconsistent
with what one would expect for a totally disabled individual
and that her alleged impairments would not preclude work.
Accordingly, the undersigned finds that the claimant's
allegations are not credible to the extent that they are
inconsistent with the above residual functional capacity.
The claimant has described daily activities, which are not
limited to the extent one would expect given the complaints
of disabling symptoms and limitations. At one point or
another in the record (either in forms completed in
connection with the application and appeal, in medical
reports or records, or in the claimant's testimony), the
claimant reported the following daily activities: waking up,
cooking breakfast , making her bed, taking a bath, getting

33

dressed, doing housework, selecting dinner for the night,
watching television, taking a walk, cooking and eating
dinner, reading a little, then going back to sleep. She
reported she can attend to her personal care
independently, although it is hard for her to button her
blouses and jeans and comb her hair. She can clean, iron,
perform laundry duties, and wash dishes. She shops in
stores and can handle financial obligations. She also
reported she has cared for and cares for her children and
grandchildren (Exhibit 6E). However, at the hearing she
reported that now she and her daughter clean the house
and shop together. Overall, the claimant's reported limited
daily activities are considered to be outweighed by the
other factors discussed in this decision.
The undersigned has assigned great weight to the findings
of Dr. Richard Reynolds and Dr. Nina Tocci, in accordance
with 20 CFR 404.1527. The undersigned notes that Drs.
Reynolds's and Tocci's opinions are consistent with the
overall records and reports obtained from the claimant's
treating physicians and with the evidence as a whole. The
undersigned also notes that Dr. Tocci did not diagnose the
claimant with a mental impairment; however , she assessed
her with a GAF of 60, which indicates only moderate
symptoms (Exhibit 2 F). The undersigned further notes that
Dr. Reynolds diagnosed the claimant with borderline
intellectual functioning; however, Dr. Reynolds opined that
the claimant can understand, remember, and carry out
simple instructions (Exhibit 13 F). In addition, the record
does not indicate any mental health treatment or
psychotropic medication for mental disorder. The
undersigned notes that Dr. Reynold s's and Dr. Tocci's
opinions are consistent with records and reports obtained
from the claimant' s treating physicians and with the overall
evidence as a whole. Therefore, pursuant to 20 CPR
404.1527(d)(l) and 416.927(d)( 1), the undersigned gives
great weight to the opinions of Dr. Reynolds and Dr.
Tocci, as an examining physician/psychologist.
The undersigned has also considered the opinion of Dr.
McKeown in accordance with 20 CPR 404.1527. The
undersigned notes that Dr. McKeown 's opinion is
consistent with records and reports obtained from the
claimant's treating physicians and with the evidence as a

34

whole, except, of course, for Dr. Goff s opinions. While it is
noted that Dr. McKeown is a non- examining source, he is
however a Licensed Clinical Psychologist and a medical
expert for the Social Security Administration. As such, Dr.
McKeown possesses an extensive understanding of the
disability programs and their evidentiary requirements,
especially for the mental listings, including listings 12.02
and 12.04. In addition, Dr. McKeown had the benefits of
reviewing the entire record and being present throughout
the claimant 's testimony at the second hearing, and he
was subject to cross-examination by the claimant's
attorney. Therefore, pursuant to 20 CPR 404.1527(f), the
undersigned gives great weight to the opinion of Dr.
McKeown.
In addition, the undersigned has also considered the
opinion of Dr. Freij in accordance with 20 CPR 404.1527.
In this case, no treating physician has offered an opinion
sufficient upon which to assess the claimant's residual
functional capacity. However, the undersigned notes that
Dr. Freiji's opinion is consistent with records and reports
obtained from the claimant's treating physicians and with
the evidence as a whole. In addition, Dr. Freij is a
specialist in Neurology and is also Program medical expert.
Pursuant to 20 CPR 404.1527(d)(5) and 416.927(d)(5), we
generally give more weight to the opinion of a specialist
about medical issues related to his area of specialty than to
the opinion of a source who is not a specialist. Therefore,
pursuant to 20 CPR 404.1527(d)(l) and 416.927(d)(l), the
undersigned gives significant weight to the opinion of Dr.
Freij as an examining physician, except as to his hand
limitations, which I find are not supported by the objective
NCS/EMG studies of the claimant's hands, which indicated
no objective evidence for her pain complaints for her
hands. His limitations regarding her hands can only reflect
her subjective hand complaints of pain, as he noted no
history of weakness and only slight tenderness noted over
the wrist, no mention of the use of wrist splints. He did
indicate that she could frequently lift and carry 10 pounds
and occasionally lift and carry 20 pound s, despite her pain
in her wrists. Exhibit 12 F, P. 2, 3, 9. No findings were
identified or listed to justify her hand limitations. See,
Exhibit 12 F, P. 11. The claimant' s headache complaints
are difficult to assess objectively, and are inherently

35

subjective in nature, but I assess mild to moderate pain to
account for this complaint.
In addition, as explained before, the undersigned rejects
the assessment of Dr. Goff (Exhibit 1lF). It is emphasized
that it appears the claimant underwent the examination
that formed the basis of the opinion in question not in an
attempt to seek treatment for symptoms, but rather,
through attorney referral and in connection with an effort to
generate evidence for the current appeal. Further, the
doctor was most certainly paid for the report. Although
such evidence is certainly legitimate in the technical legal
sense and must be given due consideration, the context in
which it was produced cannot be entirely ignored. The
doctor’s opinion is without substantial support from the
other evidence of record, which obviously renders it less
persuasive. The record does not contain any opinions from
treating or examining physicians or other consulting
psychologists indicating that the claimant is disabled or
even has limitations greater than those determined in this
decision. Furthermore, it appears that Dr. Goff apparently
relied quite heavily on the subjective report of symptoms
and limitations provided by the claimant, and seemed to
uncritically accept as true most, if not all, of what the
claimant reported. Therefore, the opinion expressed is quite
conclusory, providing very little legitimate explanation for
disagreement with the overall evidence, and it is therefore
rejected.
5. The claimant has no past relevant work (20 CFR
416.965).
6. The claimant was born on June 17, 1966 and
was 45 years old, which is defined as a younger
individual age 18-49, on the date the application
was filed (20 CFR 416.963).
7. The claimant has a limited education but is able
to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue
because the claimant does not have any past
relevant work (20 CFR 416.968).

36

9. Considering the claimant's age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform
(20 CFR 416.969 and 416.969(a)).
***

10. The claimant has not been under a disability, as
defined in the Social Security Act, since June 1 4 ,
2012, the date the application was filed (20 CFR
416.920(g)), through the date of this decision.
(Tr. 18-41).
V. DISCUSSION
A claimant is entitled to an award of SSI benefits if the claimant is unable
to engage in substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or last for
a continuous period of not less than 12 months. See 20 C.F.R. § 416.905(a). The
impairment must be severe, making the claimant unable to do the claimant’s
previous work or any other substantial gainful activity that exists in the national
economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-11. “Substantial gainful
activity means work that … [i]nvolves doing significant and productive physical or
mental duties [that] [i]s done (or intended) for pay or profit.” 20 C.F.R. §
404.1510.
In all Social Security cases, an ALJ utilizes a five-step sequential
evaluation in determining whether the claimant is disabled:
(1) whether the claimant is engaged in substantial gainful activity; (2) if
not, whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairment in the regulations; (4) if not, whether the claimant has the RFC

37

to perform her past relevant work; and (5) if not, whether, in light of the
claimant’s RFC, age, education and work experience, there are other jobs
the claimant can perform.
Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 870 (11th Cir. 2012) (per
curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)(f); Phillips
v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The
claimant bears the burden of proving the first four steps, and if the claimant does
so, the burden shifts to the Commissioner to prove the fifth step. Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999).
If the claimant appeals an unfavorable ALJ decision, the reviewing court
must determine whether the Commissioner’s decision to deny benefits was
“supported by substantial evidence and based on proper legal standards.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations
omitted); see 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Winschel, 631 F.3d at 1178 (citations omitted). “In
determining whether substantial evidence exists, [the reviewing court] must view
the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986). The reviewing court “may not decide the facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].”
Id. When a decision is supported by substantial evidence, the reviewing court
must affirm “[e]ven if [the court] find[s] that the evidence preponderates against

38

the Secretary’s decision.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986).
As set forth above, Clayton has asserted two grounds in support of her
argument that the Commissioner’s decision to deny her benefits is in error. The
Court will address Clayton’s contention that the ALJ conducted a flawed
credibility determination first and, then, the allegation that the ALJ erred in
assigning weight to the medical opinions.
A. ALJ Conducted a Flawed Credibility Determination

In his decision, the ALJ found Clayton’s statements regarding her

impairments to be “at best only partially credible,” and her functional limitations to
not be “as significant and limiting as … alleged by [Clayton].” (Tr. 35). Clayton
contends that the ALJ conducted a flawed credibility determination by incorrectly
interpreting testimony and evidence, and thus, his finding is not supported by
substantial evidence. Clayton bases her contention on several factual findings
made by the ALJ that she alleges were misrepresentations of the evidence.
First, she claims that the ALJ found her credibility was diminished by a lack of
treatment records “for well over fourteen years.” Clayton intimates that there
were treatment records for that period and claims the missing treatment records
were simply not entered into evidence. She further argues that it was the ALJ’s
responsibility to seek out those records if he felt they were relevant. (Doc. 19 at
pp. 10-11). While the ALJ has a “basic obligation to develop a full and fair
record,” see Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997), it is also
well-established that the claimant bears the burden of proving disability and is,

39

therefore, responsible for producing evidence in support of her claim, see Ellison
v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Moreover, although Clayton
indicates that such records exist and were simply not entered into evidence, she
offered no support for her statement and has had ample opportunity to produce
those documents to provide support for her intimation that records do exist.
In his decision, the ALJ made the observation about Clayton’s
questionable credibility after noting the fact that, prior to her onset date in this
case, which was June 14, 2012, Clayton had several surgeries due to a motor
vehicle accident. Normally this circumstance would weigh in the claimant’s favor,
but in this case, the ALJ concluded the impact was “offset by the fact that the
record reflects that the surgery was generally successful in relieving the
symptoms.” (Tr. 35). He further noted that “[t]he evidence indicates that her
follow-up treatment was unremarkable and she did not seek any significant
treatment for well over fourteen years ([until] 2008).” (Id.). He continued to note
that medical records in 2011 and 2012 indicated that the symptoms of which she
complained on those visits arose from circumstances other than the 1993 motor
vehicle accident. (Id.). However, as noted by the ALJ, on November 26, 2012,
Clayton went to her family physician’s office complaining of a headache on the
right side of her head, which was where she had 22 staples for a head injury she
suffered while trying to break up an altercation in June of 2012.
At this visit, she claimed that she had been having headaches since her
accident in 1993. (Id.) According to the records produced by her family
physician’s office, prior to the November 26, 2012 visit, Clayton did not mention

40

that she had been having headaches since the 1993 accident even though she
had been treated at that office since 1995 and on several occasions earlier in
2012. (Tr. 323-43, 394-429). The ALJ found that her claim that she had been
treated for headaches since the 1993 motor vehicle accident was not supported
by the record. He opined that such a statement negatively affected her credibility
because there was no documentation of reported headaches until June of 2012,
almost nineteen years after the motor vehicle accident, when she was involved in
breaking up an altercation. (Id.). This Court finds that there is substantial
evidence supporting the ALJ’s finding.
Clayton also argues that the ALJ misrepresented statements she made to
doctors and in the Function Report in analyzing her credibility. In his decision, the
ALJ stated that Clayton “takes her prescription medications as directed, without
memory problems, …” (Tr. 34) and cited the Function Report. However, Clayton
points out that, in the Function Report, she wrote that she needs “constant
reminders” to take her medications. Clayton contends the ALJ erred by pointing
out things she said she can do in the Function Report, but omitted to mention
that she said in that same Function Report that her daughter helps her cook,
clean, and take care of other household tasks. The Court notes that the ALJ did
acknowledge that Clayton testified that her daughter helps her with certain tasks.
Finally, Clayton argues that the ALJ erred by raising credibility questions based
upon her giving varying accounts of her recollection of the accident and the
length of time she was in a “coma” to various doctors.
Even assuming arguendo that the ALJ misinterpreted some of the

41

evidence, the ALJ provided several other valid reasons for discounting Clayton’s
allegations of disability. Clayton’s argument that the ALJ incorrectly assessed her
credibility fails initially because she largely ignores the reasons the ALJ provided
for discounting her allegations of disability and the evidence supporting those
reasons. As to Clayton’s argument that the ALJ misrepresented statements
concerning her activities of daily living in making a credibility determination, the
ALJ’s decision shows that he did not just consider the few statements described
by Clayton, but statements made by Clayton as a whole. See Fralix v. Colvin, No.
0:13-1211-TMC, 2014 WL 3784335 (D.S.C. Aug. 1, 2014) (“Even assuming the
ALJ failed to properly develop the record on the issue of Fralix’s inability to afford
treatment, any error committed by the ALJ in his noncompliance analysis is
ultimately harmless, given the remainder of the ALJ's credibility analysis.”);
Tench v. Colvin, No. 6:13-cv-595-RBH, 2014 WL 3889111 (D.S.C. Aug. 8, 2014)
(noting that one of the ALJ’s reasons for discounting the plaintiff’s credibility may
have been improper, but holding “even assuming the ALJ erred in considering
this evidence, such error was harmless as the ALJ gave numerous valid reasons
for discounting the plaintiff’s credibility”) (citing Shinseki v. Sanders, 556 U.S.
396, 409 (2009)). The ALJ appropriately concluded that Clayton’s complaints of
disabling symptoms were not entirely credible because they were inconsistent
with 1) other evidence of record, including the medical opinions of Drs. Tocci,
Reynolds, Freij, McKeown, Wardell, and Rahman; 2) her lack of treatment and
long gaps in treatment for allegedly disabling impairments; 3) her conservative
course of treatment; 4) her normal or generally normal physical and mental

42

examination findings; 5) the lack of imaging studies supporting her complaints; 6)
her nerve conduction and EMG studies showing normal functioning and no
impairment; and 7) her activities of daily living. (Tr. 35-37).
“A clearly articulated credibility finding with substantial supporting
evidence in the record will not be disturbed by a reviewing court.” Davis v.
Astrue, 346 F. App’x 439, 440 (11th Cir. 2009) (quoting Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995)). This is so even if some of the reasons for
questioning the claimant’s credibility stated by the ALJ are suspect. See id. at
441 (reversing the District Court’s reversal of the ALJ’s decision denying benefits
because it found that the inconsistencies between the objective medical findings
and the claimant’s subjective complaints of pain, which were pointed out in the
ALJ’s decision, constituted substantial evidence supporting the ALJ’s
determination). Accordingly, even if some of the reasons the ALJ stated to
support his credibility are suspect, the conclusion reached by the ALJ that
Clayton was only partially credible was supported by substantial evidence and
was not in error.
B. ALJ Erred in Assigning Weight to the Medical Opinions

Clayton asserts that the ALJ erred in assigning weight to the medical

opinions of Dr. Goff, Dr. Tocci, Dr. Reynolds, and Dr. McKeown, the four
psychologists who rendered opinions in this case. The ALJ gave great weight to
the opinions of Dr. Tocci, Dr. Reynolds, and Dr. McKeown. Clayton asserts that
he should not have given great weight to the opinions of Dr. Tocci and Dr.
Reynolds because their opinions are not consistent with each other and not

43

consistent with the other evidence of record. She argues that because Dr. Tocci
gave a guarded prognosis and Dr. Reynolds gave a good prognosis, their
opinions are not consistent. She did not explain how their overall opinions were
not consistent with the record. Clayton asserts that the ALJ erred in giving great
weight to the opinion of Dr. McKeown because he was a non-examining
psychologist and only offered expert testimony at the hearing; therefore, he
should have been given no more weight than any other non-examining physician,
pursuant to 20 C.F.R. 404.1527(f). Finally, Clayton’s primary argument is that the
ALJ erred by rejecting Dr. Goff’s opinion when he should have given Dr. Goff’s
opinion more weight than the opinions of the other psychologists because he is a
board certified neuropsychologist and, therefore, “more qualified than any of the
other three psychologists.” (Doc. 19 at p. 8). Clayton did not address the
inconsistencies in Dr. Goff’s testimony that were pointed out by the ALJ, but
argued that his “opinion is clearly supported by his own objective testing.” (Doc.
19 at p. 9). The Commissioner asserts that the ALJ provided valid reasons for the
weight accorded the doctors’ opinions, that those findings are supported by
substantial evidence, and that the ALJ’s evaluation of their opinions is entitled to
deference.
The relevant social security regulations provide that medical opinions are
weighed by considering the following factors: 1) whether the source of the
opinion examined the claimant; 2) whether the source treated the claimant and, if
so, a) the length of the treatment relationship and the frequency of examination
and b) the nature and extent of the treatment relationship; 3) the supportability of

44

the opinion with relevant evidence and by explanations from the source; 4) the
consistency of the opinion with the record as a whole; 5) whether the opinion was
offered by a specialist about a medical issue related to his or her area of
specialty; and 6) any other factors which tend to support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(1)-(6); see also Nichols v. Comm’r, Soc. Sec.
Admin., No. 16-11334, 2017 WL 526038, at * 5 (11th Cir. Feb. 8, 2017) (citing 20
C.F.R. §§ 404.1527(c), 416.927(c)) (stating that “[i]n determining how much
weight to give a medical opinion, the ALJ considers such factors as the
examining or treating relationship, whether the opinion is well-supported, whether
the opinion is consistent with the record, and the doctor’s specialization”).
In the instant case, the ALJ provided an extensive review of the medical
evidence, as well as Clayton’s testimony and written details concerning her daily
activities and history, in his Decision. Based on this extensive review of the
records and testimony, the ALJ accorded great weight to the opinion of Dr. Tocci
(an examining consultative psychologist), rejected the opinion of Dr. Goff (an
examining neuropsychologist retained by Clayton’s attorney two weeks before
the first hearing), accorded great weight to the opinion of Dr. Freij (an examining
consultative neurologist), except to his opinions that were based on Clayton’s
subjective complaints and not objectively supported, gave great weight to the
opinion of Dr. Reynolds (an examining consultative psychologist), and gave great
weight to the opinion of Dr. McKeown (a non-examining, reviewing medical
expert).
With regard to Dr. Goff’s opinion, the ALJ found: “The undersigned does

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not concur with Dr. Goff's opinion because it is inconsistent with the evidence as
a whole, including the opinions of Dr. Tocci and Dr. Reynolds and the
psychologist expert witness, Dr. McKeown.” (Tr. 30). The record reflects that Dr.
Goff’s opinion was also internally inconsistent. For example, Goff stated in his
records that “[d]uring this examination she was able to understand, follow and
carry out simple and some complex instructions,” (Tr. 455), but in the Medical
Source Opinion Form he completed on that same date, he stated that Clayton
has moderate limitations in the ability to understand simple instructions and
marked limitations in the ability to understand, carry out or remember detailed or
complex instructions and in the ability to carry out or remember simple
instructions. (Tr. 437). In addition, Dr. Goff opined that Clayton has moderate to
marked limitations in the ability to maintain activities of daily living; however,
Clayton’s own written and oral testimony contradicts this conclusion. Also, based
upon the same examination and testing, Goff concluded, within the same report,
that Clayton was and was not mentally retarded. (Tr. at 433 and 435).
The ALJ supported his assessment of the weight to be given the various
physician’s opinions throughout his decision by citing 1) normal examination
findings, including findings that Clayton had normal concentration and attention
and adequate judgment and insight; 2) Clayton’s lack of treatment for mental
health issues; 3) the conservative course of treatment recommended by
Clayton’s treating physicians; 4) Clayton’s reported activities of daily living; 5)
Clayton’s consistent denial of depression in the records of her family doctor; 6)
the report of Clayton’s application interview in which the interviewer stated that

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Clayton had no difficulties with understanding, coherency, concentration, talking,
or answering questions; and 7) conclusions from all of the doctors, except Dr.
Goff that, while Clayton may be mildly to moderately impaired in some areas, she
is not totally disabled. (Tr. 19-20; 24-39). Clayton’s assertion that Dr. Goff’s
opinion should be given more weight because he is a specialist is not persuasive
in light of the facts in the record in this case. “Generally, [the Comissioner] give[s]
more weight to the opinion of a source who has examined [the claimant] than to
the opinion of a source who has not examined [the claimant].” 20 C.F.R. §
404.1527(c)(1). However, “an ALJ may reject any medical opinion if the evidence
supports a contrary finding.” Nichols, 2017 WL 526038, at *5 (citing Sryock v.
Heckler, 764 F.2d 834, 835 (11th Cir. 1985)); see also Harris v. Comm’r Soc.
Sec., 330 F. App’x 813, 816 (11th Cir. 2009) (holding that the ALJ did not err by
rejecting the consultative psychologist’s finding of severe impairment because
the record evidence as a whole established that Plaintiff did not have deficits in
adaptive functioning to meet Listing 12.05(D)).
Although the opinions of Dr. Tocci and Dr. Reynolds, both practitioners
who examined Clayton, were not identical, their examination findings and
relevant opinions were consistent. With regard to Dr. McKeown, the nonexamining medical expert for the SSA, the ALJ’s decision to give great weight to
his opinion was supported by substantial evidence; namely, 1) his opinion was
consistent with records and reports obtained from Clayton’s treating physicians
and the evidence as a whole (except for Dr. Goff’s opinion), 2) as a Licensed
Clinical Psychologist and medical expert for the SSA, he possesses an extensive

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understanding of the disability programs and their evidentiary requirement,
especially the mental listings, and 3) he had the benefit of reviewing the entire
record and being present during Clayton’s testimony at the second hearing.
Clayton’s criticism of the ALJ’s giving weight to Dr. McKeown because he was a
non-examining medical expert is misplaced. SSR 96-6p provides that, “[i]n
appropriate circumstances, opinions from … psychological consultants … may
be entitled to greater weight than the opinions of treating or examining sources.”
“In assessing whether a claimant is disabled, an ALJ must consider the
medical opinions in a case record together with the rest of the relevant evidence
received.” Chambers v. Comm’r of Soc. Sec., 662 F. App’x 869, 870 (11th Cir.
2016) (citing 20 C.F.R. § 404.1527(b)) (emphasis added). “[T]he more consistent
an opinion is with the record as a whole, the more weight the ALJ will give to that
opinion.” Id. at 871 (citing 20 C.F.R. 404.1527(c)(4)). The ALJ is to consider the
claimant’s daily activities when evaluating the symptoms and severity of an
impairment. Id. (citing 20 C.F.R. § 404.1529(c)(3)(i)). The ALJ does not have to
give a treating physician’s opinion considerable weight if the claimant’s own
testimony about daily activities contradicts that opinion. Id. (citing Phillips v.
Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004)). If the claimant’s own testimony
regarding the claimant’s daily activities contradicts the consulting physician’s
opinion, the ALJ’s decision not to give the physician’s opinion considerable
weight is not in error. See Chambers, 662 F. App’x at 872. In this case, Dr. Goff’s
opinion was not in line with Clayton’s own testimony or the record as a whole.
Based on the foregoing, the Court finds that the ALJ’s opinion concerning

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the amount of weight to accord each of the physician’s opinions in this case was
supported by substantial evidence and is not in error.
CONCLUSION
In light of the foregoing, it is ORDERED that the decision of the
Commissioner of Social Security denying Plaintiff benefits be AFFIRMED.
DONE and ORDERED this the 26th day of June, 2017.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

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