LITTLE v. ASTRUE
Filing
20
MEMORANDUM ORDER. The application for a period of disability and disability benefits is DENIED and the Commissioner's decision is AFFIRMED. The clerk will issue final judgment. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on July 18, 2013. (kvg)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
ELIZABETH R. LITTLE,
Plaintiff,
v.
Case No. 5:12cv225/CJK
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
___________________________________/
MEMORANDUM ORDER
This matter is before the court pursuant to 42 U.S.C. § 405(g) for review of a
final determination of the Commissioner of Social Security (“Commissioner”)
denying claimant’s application for Supplemental Security Income under Title XVI of
the Social Security Act, 42 U.S.C. §§ 1381-83. Ms. Little will be referred to by name,
as claimant, or as plaintiff. The parties have consented to Magistrate Judge
jurisdiction pursuant to 28 U.S.C. § 636(c) and FEDERAL RULE OF CIVIL PROCEDURE
73 for all proceedings in this case, including entry of final judgment. T. 11-1.
Upon review of the record, I conclude that the findings of fact and
determinations of the Commissioner are supported by substantial evidence. The
decision of the Commissioner, therefore, will be affirmed, and the application for
benefits will be denied.
Case No. 5:12cv225/CJK
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PROCEDURAL HISTORY
Ms. Little applied for Title XVI Supplemental Security Income on February 20,
2009, alleging disability beginning on that date.1 T.12. Ms. Little’s claim initially
was denied and, upon reconsideration, the denial was upheld. Claimant filed a
written request for a hearing on September 23, 2009, which was granted. T. 12.
Ms. Little testified at an administrative hearing, which took place on February
7, 2011, in Panama City, Florida. An impartial vocational expert also testified at the
hearing. The Administrative Law Judge (ALJ) upheld the denial of Ms. Little’s
claim, finding that she had not been disabled, as defined by the Act, since the date of
the application. Claimant filed a Request for Review of Hearing Decision on April
14, 2011, which was denied by the Appeals Council of the Social Security
Administration on May 18, 2009. T. 1-5. In response, claimant brought this action
against Michael J. Astrue, the Commissioner of Social Security, on July 17, 2012.
FINDINGS OF THE ALJ
In the written decision, the ALJ made a number of findings (numbered as in the
ALJ’s order) relative to the issues raised in this appeal:
2.
The claimant has the following severe impairments: mild chronic obstructive
pulmonary disease by history, depressive disorder, borderline personality disorder,
substance addiction disorder by history.
4.
The claimant has the residual functional capacity (RFC) to perform a range of
light work as defined in 20 CFR 416.967(b). The claimant can lift and/or carry up to
1
The administrative record, as filed by the Commissioner, consists of multiple volumes (docs.
10-1 through10-8) and has 410 consecutively numbered pages. References to the record will be
by “T.”, for transcript, followed by the page number.
Case No. 5:12cv225/CJK
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20 pounds occasionally and 10 pounds frequently. She can sit, stand, and/or walk for
about six hours each, with normal breaks, in an eight-hour workday. The claimant
has no postural limitations. The claimant is limited to work not requiring fine visual
acuity without best correction. She must avoid moderate exposure to dust, fumes, and
gasses. The claimant is limited to work not requiring a good reading ability. The
claimant is limited to work not requiring more than brief, superficial contact with
coworkers and supervisors. The claimant is further limited to work not requiring a
consistent/fast pace or without sufficient rest periods throughout the workday.
5.
The claimant is capable of performing past relevant work as a cashier II. This
work does not require a performance of work related activities precluded by the
claimant’s RFC.
STANDARD OF REVIEW
A federal court reviews a Social Security disability case to determine whether
the Commissioner’s decision is supported by substantial evidence and whether the
ALJ applied the correct legal standards. See Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997); see also Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991)
(“[T]his Court may reverse the decision of the [Commissioner] only when convinced
that it is not supported by substantial evidence or that proper legal standards were not
applied.”). Substantial evidence is “‘such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)).
With reference to other standards of review, the Eleventh Circuit has said,
“‘Substantial evidence is more than a scintilla . . . .’” Somogy v. Comm’r of Soc. Sec.,
366 F. App’x 56, 62 (11th Cir. 2010) (quoting Lewis, 125 F.3d at1439). Although the
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ALJ’s decision need not be supported by a preponderance of the evidence, “it cannot
stand with a ‘mere scintilla’ of support.” Hillsman v. Bowen, 804 F.2d 1179, 1181
(11th Cir. 1986). The reviewing court “‘may not decide the facts anew, reweigh the
evidence, or substitute [its] judgment for that of the Secretary[.]’” Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983)). Nevertheless, a reviewing court may not look “only to
those parts of the record which support the ALJ[,]” but instead “must view the entire
record and take account of evidence in the record which detracts from the evidence
relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983).
Thus, although review is deferential, the reviewing court conducts “an independent
review of the record.” Flynn v. Heckler, 768 F.2d. 1273, 1273 (11th Cir. 1985); see
also Getty ex rel. Shea v. Astrue, No. 2:10–cv–725–FtM–29SPC, 2011 WL 4836220
(M.D. Fla. Oct. 12, 2011); Salisbury v. Astrue, No. 8:09-cv-2334-T-17TGW, 2011
WL 861785 (M.D. Fla. Feb. 28, 2011).2
The Social Security Act defines a disability as an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 1382c(a)(3)(A). To qualify as a disability, the physical or mental impairment must
be so severe that the plaintiff not only is unable to do her previous work, “but cannot,
considering [her] age, education, and work experience, engage in any other kind of
2
The Eleventh Circuit not only speaks of an independent review of the administrative record, but
it also reminds us that it conducts a de novo review of the district court’s decision on whether
substantial evidence supports the ALJ’s decision. See Ingram v. Comm'r of Soc. Sec. Admin.,
496 F.3d 1253, 1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
Case No. 5:12cv225/CJK
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substantial gainful work which exists in the national economy.” Id. at
§ 1382c(a)(3)(B). Pursuant to 20 C.F.R. § 404.1520(a)-(g), the Commissioner
analyzes a disability claim in five steps:
1. If the claimant is performing substantial gainful activity, she is not
disabled.
2. If the claimant is not performing substantial gainful activity, her
impairments must be severe before she can be found disabled.
3. If the claimant is not performing substantial gainful activity and she
has severe impairments that have lasted or are expected to last for a continuous period
of at least twelve months, and if her impairments meet or medically equal the criteria
of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant
is presumed disabled without further inquiry.
4. If the claimant’s impairments do not prevent her from doing her past
relevant work, she is not disabled.
5. Even if the claimant’s impairments prevent her from performing her
past relevant work, if other work exists in significant numbers in the national
economy that accommodates her residual functional capacity and vocational factors,
she is not disabled.
Claimant bears the burden of establishing a severe impairment that keeps her
from performing her past work. See 20 C.F.R. § 416.912. The Eleventh Circuit has
explained the operation of step five. See Doughty v. Apfel, 245 F.3d 1274, 1278 n.2
(11th Cir. 2001) (“In practice, the burden temporarily shifts at step five to the
Commissioner. The Commissioner must produce evidence that there is other work
available in significant numbers in the national economy that the claimant has the
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capacity to perform. In order to be considered disabled, the claimant must then prove
that she is unable to perform the jobs that the Commissioner lists. The temporary
shifting of the burden to the Commissioner was initiated by the courts and is not
specifically provided for in the statutes or regulations. See Brown v. Apfel, 192 F.3d
492, 498 (5th Cir. 1999) (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)
(‘The shifting of the burden of proof is not statutory, but is a long-standing judicial
gloss on the Social Security Act’)).”).
Step five (or step four in cases, such as the present one, where the ALJ decides
a claimant can perform her past work) is where the rubber meets the road. At that
point, the ALJ formulates the all-important residual functional capacity. Even where
one or more severe impairments are established, the claimant must show that she
cannot perform work within that residual functional capacity. The ALJ establishes
residual functional capacity, utilizing the impairments identified at step two, by
interpretation of (1) the medical evidence, and (2) the claimant’s subjective
complaints (generally complaints of pain). Based on the residual functional capacity,
the ALJ makes the ultimate vocational determination required by step four or five.3
“[R]esidual functional capacity is the most [claimant] can still do despite [claimant’s]
limitations.”4 20 CFR § 416.945. Often, both the medical evidence and the accuracy
3
“Before we go from step three to step four, we assess your residual functional capacity. (See
paragraph (e) of this section.) We use this residual functional capacity assessment at both step four
and step five when we evaluate your claim at these steps.” 20 C.F.R. § 416.920.
4
In addition to this rather terse definition of residual functional capacity, the Regulations describe
how the Commissioner makes the assessment:
(3) Evidence we use to assess your residual functional capacity.
We will assess your residual functional capacity based on all of
the relevant medical and other evidence. In general, you are
responsible for providing the evidence we will use to make a
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of a claimant’s subjective complaints are subject to a degree of conflict, and that
conflict leads, as in this case, to the points raised on judicial review by many
disappointed claimants.
FACT BACKGROUND AND MEDICAL HISTORY
At the hearing, Ms. Little testified that she was born on July 10, 1968, and was
forty-two years old.1 T. 28. During the past fifteen years, she worked as a certified
nursing assistant (CNA) and cashier. T. 30. Claimant explained that she did not
believe she could return to work because she did not get along with other people and
would “snap all the time at them.” T. 32. She purportedly suffers from depression
and crying spells two to three times a week and has frequent panic attacks. In
addition, she claims to have breathing problems and to suffer from auditory
hallucinations three to four times a week.2 T. 33-35. Ms. Little takes Paxil and
finding about your residual functional capacity. (See
§ 416.912(c).) However, before we make a determination that
you are not disabled, we are responsible for developing your
complete medical history, including arranging for a
consultative examination(s) if necessary, and making every
reasonable effort to help you get medical reports from your own
medical sources. (See §§ 416.912(d) through (e).) We will
consider any statements about what you can still do that have
been provided by medical sources, whether or not they are
based on formal medical examinations. (See § 416.913.) We
will also consider descriptions and observations of your
limitations from your impairment(s), including limitations that
result from your symptoms, such as pain, provided by you, your
family, neighbors, friends, or other persons. (See paragraph (e)
of this section and § 416.929.)[.]
20 C.F.R. § 416.945(a)(3).
The court’s recitation of the facts and medical history is based on its independent review of the
record. See Tieniber, 720 F.2d 1251 (11th Cir. 1983).
1
2
Claimant acknowledged that she smokes half a pack of cigarettes a day.
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Haldol for her depression, panic attacks, and hallucinations, which she claims make
her drowsy. T. 39. She denied watching television, allegedly because it is distracting
and causes her to lose focus.1 T. 35. She also reported being able to do some
housework, including laundry, cooking, and the dishes. T. 38, 44. She testified that
she cannot lift more than five to ten pounds because of a wrist injury. T. 45.
Robert Strader, a vocational expert (VE), reviewed the claimant’s medical
records and testified at the hearing. T. 47-51. The VE explained that cashier II work
typically is unskilled light work, although claimant’s characterization of the duties
she performed justified a classification of medium work. T. 48. When asked to
consider the plaintiff’s background, characterization, and restrictions, the VE testified
that the claimant could perform her past work as cashier II as generally performed in
the national economy. T. 49. The ALJ asked the VE to take into account the
following moderate mental restrictions: performing activities within a schedule,
maintaining regular attendance and being punctual within customary tolerances,
completing a normal work day without interruption from psychologically based
symptoms, performing at a consistent pace without unreasonable number and length
of rest periods, accepting instruction and responding appropriately to criticism from
superiors, and getting along with coworkers or peers without distracting them or
exhibiting extreme behavior.
T. 50. The VE testified that, even with those
restrictions, Ms. Little could perform her past work as cashier II as generally
performed in the national economy.8 T. 50.
1
She later admitted to being able to watch television for thirty minutes at a time. T. 43.
In response to the VE’s testimony, claimant’s representative asked only for clarification of the kind
of breaks such a job would entail. T. 48-51.
8
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According to the record, Ms. Little first sought medical attention for her
psychiatric problems in November 1992, when she was admitted to Bay Medical
Center. T. 190. Upon admission, claimant stated that she was suffering from
depression and suicidal ideations stemming from an “ugly” divorce. T. 190. Terry
Moore, D.O., diagnosed claimant with adjustment disorder with mixed emotional
features, ruled out personality disorder NOS, and assigned claimant a Global
Assessment of Functioning (GAF) of 60.1 T. 191. Upon discharge, Dr. Moore noted
that claimant’s affect was normal and that she was experiencing no hallucinations or
delusions. T. 190-191. He thus discharged her without medication. T. 191.
Ms. Little next received medical treatment on August 2001, when she attended
a month-long chemical and alcohol addiction program. Ms. Little reported one
relapse after leaving the program, and the record demonstrates that she entered a
detox program in June 2003. T. 201. After she was released from the detox program,
Ms. Little continued with counseling and was progressing well through 2005.10 Then,
in December 2006, she sought treatment at Life Management Center. T. 229. In her
initial intake form, Ms. Little stated that she was suffering from depression, sleep
disturbances, irrational thoughts and behaviors, and an inability to maintain
1
Formerly, a GAF between 51 and 60 was considered to indicate moderate symptoms or moderate
difficulty in social, occupational, or school functioning. The American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). The most recent edition
of the Diagnostic and Statistical Manual, however, no longer recommends the use of the GAF scale,
noting that “[i]t was recommended that the GAF be dropped from DSM-5 for several reasons,
including its conceptual lack of clarity and questionable psychometrics in routine practice.”
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 16 (5th
ed. 2013). Because the claimant did not rely on her GAF in support of her claim, the court will not
address it further.
10
However, Ms. Little missed four counseling sessions that year. When she did attend a session,
the counselor noted that she was cooperative and progressing well. T. 200-208.
Case No. 5:12cv225/CJK
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employment due to anger outbursts. T. 229. Counselor Lisa Baldwin noted likely
diagnoses of bipolar disorder with psychotic features and alcohol dependence. T.
229. Interestingly, Ms. Little indicated to Baldwin the she was interested in
psychiatric services only to the extent they might help her obtain disability benefits.
T. 234.
Claimant underwent a psychological evaluation in February 2007 by George
Horvat, a licensed psychologist, upon referral by the Florida Department of Health,
Disability Division (FDOH), for purposes of determining her mental status. T.237.
At that time, claimant complained primarily of problems interacting with other
people. T. 238. Dr. Horvat diagnosed her with bipolar II depressed type, delusional
disorder paranoid type, and borderline intellectual functioning; he noted, however,
that if claimant were able to function with medication, no psychological reasons
would prevent her from returning to work. T. 240. Claimant saw Dr. Horvat again
in April 2008, complaining of panic attacks which she attributed to physical abuse
she suffered in the past, both as an adult and child. T. 248. On her intake form,
claimant indicated that she had been diagnosed with chronic obstructive pulmonary
disease (COPD); she also reported that she was having auditory and visual
hallucinations, suffering from paranoia, and binge drinking. T. 248. Dr. Horvat
noted that claimant previously had been prescribed Amitaptyline, Wellbutrin, and
Premarin, but was not taking them for financial reasons. T. 248. Dr. Horvat’s
diagnosis of the claimant remained largely the same, and he again noted that if she
could be stabilized with medication, there would be no psychological reasons she
could not return to work. T. 250.
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One week after her visit with Dr. Horvat, Ms. Little returned to the Life
Management Center for a consultation with Lisa Baldwin. T. 259. Baldwin indicated
that Ms. Little presented with symptoms of mania consistent with her bipolar
diagnosis. T. 259. According to Baldwin, Ms. Little stated that, four months before
her visit, during a three-day manic episode, she took four or five Tylenol PM to fall
asleep. T. 259. She also admitted to smoking one pack of cigarettes a day but denied
drinking alcohol for the past two years. T. 259. Ms. Little reported that she suffered
from serious mood fluctuations and auditory/visual hallucinations. T. 260. Based on
her examination of Ms. Little, Baldwin concluded that Ms. Little had slightly
impaired remote memory and general intelligence. T. 262. Baldwin also noted
marked impairment in Ms. Little’s abstract thinking and ability to manage daily
living, as well as in her ability to make reasonable life decisions. T. 262. Baldwin
confirmed most of Dr. Horvat’s diagnoses and recommended therapy and
psychological services for Ms. Little. T. 264-65. The next day, Ms. Little met with
Stanford Williamson, D.O., for a Social Security Disability examination. T. 252. She
mentioned to Dr. Williamson that she had difficulty getting along with other people
and was easily annoyed. She reported shortness of breath, fast heartbeat, and
tightness in her chest; a respiratory inspection, however, showed no wheezing and
unlabored breathing. T. 253. Dr. Williamson diagnosed Ms. Little with social
anxiety disorder. T. 254.
In October 2008, claimant saw Nancy Gibson, a nurse practitioner at Life
Management Center, for a medication refill. T. 268. At that time, claimant reported
feeling anxious. Nurse Gibson confirmed the previous diagnoses and recommended
a follow-up visit in three months. T. 269. Claimant returned to Life Management
Case No. 5:12cv225/CJK
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Center again in 2009, at which time she reported that she recently had been “kicked
out” of the home in which she had been living, which belonged to her boyfriend’s
sister. T. 266. She admitted to drinking one beer earlier in the week and stated that
she had become intoxicated only once since October 2008. T. 266. She also
indicated that she was running out of Paxil and had been spacing out her doses. T.
266. Nurse Gibbons’ diagnoses of the claimant remained largely the same, although
she prescribed her Haldol, Cogentin, and Paxil and requested that claimant return in
three months or sooner if any problems developed. T. 267.
On February 20, 2009, shortly after her visit with Nurse Gibbons, Ms. Little
filed a claim for disability benefits, alleging disability as of that date based on bipolar
disorder and COPD. Sam Banner, M.D., evaluated Ms. Little in April 2009, at the
request of FDOH. T. 276. During her visit with Dr. Banner, Ms. Little reported
chronic shortness of breath and fatigue upon physical activity; she also admitted to
having smoked a pack of cigarettes a day for the past twenty years. 11 T. 276. She
complained of difficulty getting along with others and frequent anxiety. T. 276. Dr.
Banner’s examination of Ms. Little revealed symptoms of chronic upper abdominal
distension and a prolonged expiratory phase.12 T. 277. He also noted that her
uncorrected vision was 20/70 far and 20/100 near. T. 277. Dr. Banner diagnosed Ms.
Little with COPD and bipolar/manic depressive disorder and indicated that she would
need long-term medical and psychiatric care. T. 279.
11
She denied drinking alcohol.
According to pulmonary function studies performed at Dr. Banner’s request, Ms. Little had
“mild restrictive pattern indicated by mild reduction in forced vital capacity with preservation of
FEV1/FVCA.” T. 280.
12
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Claimant also was evaluated by Dr. Horvat in April 2009 at the request of
FDOH. T. 292. She reported to Dr. Horvat that she had a panic attack the previous
day; she also reported spontaneous crying approximately twice a week and a dislike
of crowds and interaction with people.13 T. 292. She denied alcohol use over the past
two years but said she had difficulty sleeping and a poor appetite. T. 292. Dr. Horvat
noted that while Ms. Little’s eye contact was normal, her facial expression was
depressed; he also observed that her mood and affect were depressed but that she
showed no signs of preoccupations or hallucinations and that her organization was
goal directed. T. 292.
Dr. Horvat opined, based on verbal and math skills
demonstrated during the interview, that Ms. Little was of below average intelligence.
T. 292. His diagnoses remained the same and he reiterated that, as long as she had
no physical restrictions, claimant could return to work while continuing to receive
psychological treatment. T. 293.
Claimant returned for a checkup with Nurse Gibson the following month and
reported that she was “doing quite well” except for some trouble sleeping due to
increased stress about her daughters and grandchildren. T. 356. She denied drug or
alcohol use. T. 356. Nurse Gibson repeated her previous diagnoses and refilled
claimant’s prescriptions for Haldol, Cogentin and Paxil. T. 357. She also suggested
a follow-up visit in three months or sooner if any problems developed. T. 357. Later
that month, claimant underwent a physical RFC assessment by Thomas Peele, M.D.,
who found that she had the ability to occasionally lift twenty pounds and frequently
lift ten pounds, stand and/or walk with normal breaks for a total of approximately six
hours in an eight-hour work day, and unlimited pushing/pulling abilities other than
13
She denied a history of hallucinations. T. 292.
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as shown for “lift/carry.” T. 295. He found no postural or manipulative limitations
but noted visual limitation in the form of limited near/far acuity.14 T. 297. In
rendering his assessment, Dr. Peele took into account Ms. Little’s history of COPD,
including the recent pulmonary studies. T. 295. Perhaps for that reason, he
recommended that claimant avoid concentrated exposure to fumes, odors, dusts,
gases, and poor ventilation. T. 298.
Ms. Little underwent a mental RFC assessment in June 2009 by Jeffrey Benoit,
Ph.D., a state agency psychologist who concluded that claimant was “not significantly
limited” in most areas of mental work functioning, including understanding and
memory, sustained concentration and persistence, and social interaction and
adaptation. T. 302. Dr. Benoit found, however, that Ms. Little was “moderately
limited” with regard to understanding and remembering detailed instructions,
sustaining an ordinary routine without special supervision, interacting appropriately
with the general public, accepting instructions and responding appropriately to
criticism, and traveling in unfamiliar places. He concluded that claimant would do
best in an environment in which she did not have to process or act upon complex
information and could work under a supervisor who recognized her intellectual
limitations and was not hypercritical. T. 302-304
The following month, Sean Fitzgerald, M.D., a state agency physician,
conducted another physical RFC assessment of Ms. Little, finding that her restrictions
were largely the same as observed during her first physical RFC assessment. Like Dr.
Peele, Dr. Fitzgerald recommended that claimant avoid even moderate exposure to
14
Specifically, Dr. Peele recorded Ms. Little’s eyesight capabilities as “limited to frequent use,”
with 20/100 vision in her right eye and 20/50 vision in her left eye when uncorrected. T. 297.
Case No. 5:12cv225/CJK
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fumes, odors, dusts, gases, and poor ventilation. T. 325-328. Ms. Little also
underwent a second mental RFC assessment – by Dr. James Mendelson, Ph.D, a state
agency psychologist. Similar to the previous mental assessment, Dr. Mendelson
noted that claimant was “not significantly limited” in most areas of mental activity
but found her “moderately limited” with regard to performing activities within a
schedule, maintaining regular attendance and being punctual within customary
tolerances, completing normal work days and work weeks without interruptions from
psychologically based symptoms, performing at a consistent pace without an
unreasonable number and length of rest periods, accepting instructions and
responding appropriately to criticism from supervisors, and getting along with
coworkers and peers without distracting them or exhibiting behavioral extremes. T.
346-347. Dr. Mendelson questioned claimant’s previous diagnoses, including her
diagnoses of bipolar disorder and delusional disorder and noted that many of Ms.
Little’s symptoms were characteristic of less severe conditions and may have been
influenced by substance abuse. T. 348. Dr. Mendelson diagnosed claimant with
mixed personality disorder with borderline and histrionic features and indicated that
she had responded well to treatment and showed only a few symptoms of a mental
disorder, none of which were disabling. T. 348. Accordingly, Dr. Mendelson
concluded that while claimant was “tense, dysphoric and socially withdrawn, there
[were] no significant restrictions in the functional capacity to engage in a full range
of routine day to day behaviors.” T. 348.
After her second round of RFC assessments, Ms. Little returned to Life
Management Center in August 2009 for a follow-up visit with nurse practitioner
Jerris Grover. T. 354.
Case No. 5:12cv225/CJK
At the time of her visit, claimant had been without her
Page 16 of 21
medication for three days and stated that she did not feel any difference.15 Her family
thought she was depressed and not doing well on her medications, but she denied
suicidal ideation and hallucinations and reported that she was abstaining from alcohol
and “doing okay.” Nurse Grover indicated that the Haldol was controlling claimant’s
psychotic symptoms and thus continued her prescription; he also continued her
prescriptions for Congentin and Paxil and added Wellbutrin.
Finally, he
recommended that Ms. Little follow up in one month so he could determine whether
she had on any side effects from the Wellbutrin. T. 344-55. Rather than return to the
Life Management Center as recommended, Ms. Little sought treatment at Southeast
Alabama Medical Center in October 2009 for an “adjustment of medication.” T. 365.
She was admitted for five days.
T. 365. According to the record, she was
hyperverbal at the time of admission and complained of paranoia and auditory/visual
hallucinations that had been increasing in frequency over the past few weeks. T. 366.
She also reported that she separated from her husband two months ago but was still
living in the same house with him. She denied suicidal thoughts but indicated that
she was not sleeping well and was irritable and easily distracted. T. 366. She had
ceased taking Wellbutrin because she believed it was causing diarrhea. T. 366. She
admitted to smoking one pack of cigarettes a day and drinking alcohol. The
examining doctor, Shabana Jaffri, noted that pulmonary function was labored but that
breath sounds were clear. T. 370. Dr. Shabana prescribed Paxil and Seroquel and
increased claimant’s dosage of Haldol. T. 367, 397.
After Ms. Little was released from Southwest Alabama Medical Center, she
returned to the Life Management Center for evaluation and assistance with her
15
Ms. Little missed a previous appointment, which caused her to run out of medication.
Case No. 5:12cv225/CJK
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medication. T. 397. Although she denied having hallucinations, Nurse Grover noted
that claimant was hypomanic and had mildly pressured speech. T. 397. Because Ms.
Little was having trouble affording the new medication that had ben prescribed for
her, Nurse Grover discontinued her Seroquel and advised her to return for a followup visit in one week. T. 397-98. Claimant returned the following week, at which
time she was doing “quite well” and had no complaints. T. 395. She indicated that
her mood was stable and that she was not having any hallucinations; she also denied
suicidal ideation. T. 395. Nurse Grover thus recommended a follow-up visit in three
months. T. 396. Claimant returned to Life Management Center in December 2009.
T. 393. Nurse Grover again noted that Ms. Little was doing “really well” and that
her mood was stable. T. 393.
Both claimant and her husband reported that the
Haldol was “making [the claimant] raw feeling when tired,” so Nurse Grover reduced
the dosage. T. 393. Ms. Little denied any substance abuse but admitted to smoking
cigarettes. T. 393.
Claimant next visited to Life Management Center in January 2010, at which
time Nurse Grover concluded that the episode that led to claimant seeking treatment
at Southeast Alabama Medical Center was either alcohol induced or an aberrant
episode of instability. T. 391. Nurse Grover adjusted the claimant’s Haldol
prescription and enrolled her in the Patient Assistant Program for Depakote. T. 391.
Although claimant was having issues with psychomotor slowing and sleeping too
much, her mood was stable and she was not having psychotic symptoms. T. 391. She
again denied substance abuse and suicidal ideation. T. 391. Nurse Grover diagnosed
claimant with schizoaffective disorder, psychotic disorder with hallucinations,
alcohol induced mood disorder, and personality disorder NOS with borderline
Case No. 5:12cv225/CJK
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features. T. 391.
Claimant next visited the Life Management Center in February 2010 for a
follow-up visit. T. 389. Nurse Grover noted on that date that Ms. Little seemed
“much brighter” and more alert. T. 389. She apparently was not as sedated as she
had been at the previous appointment. T. 389. Claimant stated that she was tired and
suffered from a lack of motivation, but was doing more. T. 389. She did not have
any psychotic symptoms and her mood was stable. T. 389. Her main complaint was
lateral jaw movements, which Nurse Grover believed was a side effect of the
Depakote or Haldol. T. 389 Nurse Grover thus increased claimant’s dosage of
Congentin and reduced her dosage of Haldol. T. 389. Claimant missed her next two
appointments with Nurse Grover and did not see him again until her most recent
appointment in April 2010, when she reported concern over teeth grinding, anxiety,
and itching due to medications. T. 387. Nurse Grover noted that Ms. Little’s mood
was stable and she was having no hallucinations but was consuming alcohol, from
which Nurse Grover advised her to abstain. T. 387. He also discontinued claimant’s
prescriptions for Depakote and Haldol and prescribed Atarax to help with the anxiety
and itching. T. 387.
ANALYSIS
Based on the testimony of the vocational expert and claimant’s medical history,
the ALJ determined that Ms. Little had the RFC to perform her previous light work
as a cashier. T. 18. Ms. Little challenges the ALJ’s decision in that regard, arguing
that “the RFC does not accurately reflect her limitations and . . . is so vague that it is
impossible to determine the ALJ’s intended limitations.” Ms. Little’s first argument
– that the RFC does not accurately reflect her limitations – is conclusory and
Case No. 5:12cv225/CJK
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unsupported. Indeed, Ms. Little points to no evidence, medical or otherwise, to
contradict the ALJ’s finding. Nor does she offer any limitations the ALJ should have
included in his assessment but overlooked. It is well established that “[t]he claimant
has the burden of proving [she] is disabled, and is therefore responsible for producing
evidence in support of the claim.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003); 20 C.F.R. § 416.912(a), (c). Not only did the claimant fail to meet her burden
in that regard, but the ALJ’s finding is supported by the record.
Claimant’s second argument – that the RFC is overly vague – likewise lacks
legal and evidentiary support. Ms. Little has not presented a single analogous RFC
that has been ruled overly vague, and although she has identified two phrases she
contends are vague, I find both phrases to be sufficiently clear. The first phrase to
which claimant objects is “limited to work not requiring fine visual acuity without
best correction.” Notably, the ALJ used a similar phrase during the hearing while
posing a hypothetical question to a vocational expert, and claimant’s counsel neither
objected to nor sought clarification of the phrase. Moreover, while the phrase may
not be a model of clarity, a lay person should be able to discern that it refers to
limitations on the claimant’s vision when uncorrected.16 With regard to the second
phrase, “limited to work not requiring a consistent/fast pace or without sufficient rest
periods throughout the workday,” a lay person should have little difficulty
interpreting it as restricting the claimant to work that does not require a fast pace and
allows for periods of rest. And the claimant has offered no basis for interpreting it
otherwise. Even if the court somehow found these phrases vague, “[it] will uphold
a decision of less than ideal clarity if the agency's path may reasonably be discerned.”
16
The claimant, however, is represented by counsel in this matter.
Case No. 5:12cv225/CJK
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Dixon v. Astrue, 312. F. App’x 226, 229 (11th Cir. 2009). I find the ALJ’s decision
easily decipherable in this case – that Ms. Little cannot perform a job that requires
perfect eyesight and cannot engage in strenuous work without sufficient breaks.
Claimant further contends that “the RFC is irrational and [that] it is impossible
to defend or respond appropriately to such restrictions as [limited to] fine visual
acuity without best correction.” Ms. Little, however, offered no evidence that she
was incapable of performing jobs that do not require perfect eyesight. As such, this
contention also fails.
Finally, claimant seems to argue that when nonexertional
impairments significantly affect the occupational base, a finding of disability is
warranted. Curiously, however, Ms. Little did not present any evidence that her
impairments significantly affected her occupational base. This argument thus
likewise lacks merit.
In sum, claimant has presented no evidence to support her claims that the ALJ’s
RFC was incorrect and vague. Based on the testimony of the vocational expert and
Ms. Little’s medical history, I find substantial support in the regard for the ALJ’s
finding that claimant had the RFC to perform her previous light work as a cashier and
thus find the ALJ’s decision to be in compliance with the appropriate legal standards.
See Carnes, 936 F.2d at 1218 (“[T]his Court may reverse the decision of the
[Commissioner] only when convinced that it is not supported by substantial evidence
or that proper legal standards were not applied.”).
Case No. 5:12cv225/CJK
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Accordingly it is ORDERED:
1. The application for a period of disability and disability benefits is DENIED
and the Commissioner’s decision is AFFIRMED.
2.
The clerk will issue final judgment.
At Pensacola, Florida, this 18th day of July, 2013.
/s/
Charles J. Kahn, Jr.
CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE
Case No. 5:12cv225/CJK
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