HENNING v. COMMISSIONER OF SOCIAL SECURITY

Filing 19

MEMORANORANUM OPINION AND ORDER - Pursuant to the fourth sentence in 42 U.S.C § 405(g), the decision of the Commissioner to deny Plaintiff's applications for Social Security benefits is REVERSED and this case is REMANDED for further proceedings consistent with this order. Signed by MAGISTRATE JUDGE CHARLES A STAMPELOS on 1/20/2015. (tdl)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

MISTY HENNING,
Plaintiff,
vs.

Case No. 5:14cv87-CAS

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
/

MEMORANORANUM OPINION AND ORDER
This is a Social Security case referred to the undersigned United States
Magistrate Judge upon consent of the parties and reference by District Judge Richard
Smoak. Doc. 13. See Fed. R. Civ. P. 73; 28 U.S.C. § 636(c). After careful
consideration of the entire record, the Court reverses the decision of the Acting
Commissioner (Commissioner) and remands this case for further proceedings.
I. Procedural History
On July 19, 2012, Plaintiff, Misty Henning, filed applications for a period of
disability and Disability Insurance Benefits (DIB) and Supplemental Security Income
(SSI), alleging disability beginning on September 1, 2011, based on borderline
personality, bipolar, and post-traumatic stress disorder (PTSD). R. 11, 181-94, 209.
(Citations to the record shall be by the symbol “R.” followed by a page number that
appears in the lower right corner of each page.) Plaintiff’s date last insured, or the date

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by which her disability must have commenced to receive DIB, is June 30, 2013. R. 12,
206.
Plaintiff’s applications were denied initially on August 20, 2012, and upon
reconsideration on December 21, 2012. R. 11, 100-111, 117-128. On January 14,
2013, Plaintiff requested a hearing. R.11, 129-30.
On May 23, 2013, and prior to the hearing, Plaintiff’s counsel requested the
Administrative Law Judge (ALJ) to issue a subpoena so that Plaintiff’s husband could
appear and testify at the hearing. R. 11, 264.
On June 12, 2013, a hearing was conducted by ALJ Claire R. Strong. R. 11, 26,
28. On June 12, 2013, Plaintiff provided the ALJ with a brief. R. 175-78. Plaintiff was
represented by Aaron Gartlan, an attorney. R. 11, 26, 28-30, 112-14, 178. Plaintiff and
her husband testified.1 R. 30-50, 58. Exhibit 1A through 7F were admitted without
objection. R. 30. The ALJ asked Plaintiff if she was assessed at Life Management
Center of NW Florida (Life Management) on January 14, 2013, see R. 356-59 (Exhibit
7F), and she testified she was and had been there since that time. R. 50. The ALJ
stated that she did not have any later (updated) records (to the surprise of Plaintiff) and
the ALJ stated the records were needed. R. 50-51. Plaintiff’s counsel was charged with
obtaining the records. R. 51, 58. The ALJ noted in her decision that the updated
records were not provided. R. 11; see R. 25. Further, the ALJ told Plaintiff’s counsel
that she needed “an assessment from a treating physician, that’s what will override any
consultative exams. Corroborating testimony only helps when the person can’t speak
well for themselves.” R. 51. The ALJ requested a medical source statement from Life
1

After Plaintiff’s testimony, her counsel asked the ALJ if Plaintiff’s husband
could testify in order to elaborate or provide some detail on some of Plaintiff’s testimony.
R. 51, 53; see infra at 15-16.
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Management regarding Plaintiff’s current functioning. R. 51-52. The ALJ told counsel
that he could obtain a mental residual functional assessment (RFC) form and submit it
to the Life Management. R. 52. After the hearing concluded, no such form was
provided to the ALJ by Life Management. No vocational expert testified, despite the
ALJ noting that Dr. John Black, Ed.D., an impartial vocational expert, appeared and
testified. R. 11, 26-58; see R. 139-43 (Resume).
On September 12, 2013, the ALJ issued a decision and denied Plaintiff’s
applications for benefits concluding that Plaintiff was not disabled from September 1,
2011, through the date of the ALJ’s decision. R. 21. In her decision, the ALJ denied the
request for the subpoena “because it was not reasonably necessary for the full
presentation of a case.” R. 11 (citations omitted). The ALJ noted, however, that “the
claimant’s husband [Mr. Henning] appeared and testified at the hearing, rendering the
issue moot.” Id.; see R. 54-57; see also infra at 15-16.
On November 14, 2013, Plaintiff requested review of the decision and submitted
additional medical evidence from Cordova Counseling Center from December 17, 2010,
to December 14, 2011. R. 179-80 (Exhibit 20B), 360-404 (Exhibit 8F). On January 23,
2014, the Appeals Council denied Plaintiff’s request for review, having considered
Plaintiff’s brief and Exhibit 8F stating, in part: “These reports show continued treatment
for your established medically determinable impairments. Since this evidence does not
reveal any significant deterioration in your condition or further restriction in your ability to
function, the current weight of the evidence does not change the findings set forth in the
hearing decision.” R. 1-6. The ALJ’s decision stands as the final decision of the
Commissioner. 20 C.F.R. § 404.981.

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On March 28, 2014, Plaintiff filed a Complaint with the United States District
Court seeking review of the ALJ’s decision. Doc. 1. Plaintiff and the Commissioner
filed memoranda of law, docs. 17 and 18, which have been considered.
II. Legal Standards Guiding Judicial Review
This Court must determine whether the Commissioner’s decision is supported by
substantial evidence in the record and premised upon correct legal principles.
42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); accord
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “The Commissioner’s factual
findings are conclusive if supported by substantial evidence.” Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002) (citations omitted). The court may not reweigh the
evidence or substitute its own judgment for that of the ALJ even if it finds that the
evidence preponderates against the ALJ’s decision. Moore, 405 F.3d at 1211.2
“In making an initial determination of disability, the examiner must consider four
factors: ‘(1) objective medical facts or clinical findings; (2) diagnosis of examining
2

“If the Commissioner’s decision is supported by substantial evidence we must
affirm, even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,
1240, n.8 (11th Cir. 2004) (citations omitted). “A ‘substantial evidence’ standard,
however, does not permit a court to uphold the Secretary’s decision by referring only to
those parts of the record which support the ALJ. A reviewing court 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).
“Unless the Secretary has analyzed all evidence and has sufficiently explained the
weight he has given to obviously probative exhibits, to say that his decision is supported
by substantial evidence approaches an abdication of the court's ‘duty to scrutinize the
record as a whole to determine whether the conclusions reached are rational.’” Cowart
v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (citations omitted).
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physicians; (3) subjective evidence of pain and disability as testified to by the claimant
and corroborated by [other observers, including family members], and (4) the claimant’s
age, education, and work history.’” Bloodsworth, 703 F.2d at 1240 (citations omitted).
A disability is defined as a physical or mental impairment of such severity that the
claimant is not only unable to do past relevant work, “but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). A disability is 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. § 423(d)(1)(A); see 20 C.F.R. § 404.1509 (duration requirement).3
Both the “impairment” and the “inability” must be expected to last not less than 12
months. Barnhart v. Walton, 535 U.S. 212 (2002). In addition, an individual is entitled
to DIB if she is under a disability prior to the expiration of her insured status. See
42 U.S.C. § 423(a)(1)(A); Moore v. Barnhart, 405 F.3d at 1211; Torres v. Sec’y of
Health & Human Servs., 845 F.2d 1136, 1137-38 (1st Cir. 1988); Cruz Rivera v. Sec’y
of Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986). 42 U.S.C. § 423(d)(1)(A)
quite clearly requires that it is the impairment only which must last for a
continuous period. Normally, of course, when a claimant has an impairment
severe enough to prevent him from working, he will be unable to work for as long
as the impairment lasts. This is particularly true when the impairment is physical.
The statute, however, does not require that a claimant be unable to engage in
work during the entire 12 month period. See also 20 C.F.R. §§ 404.1505(a);
3

The relevant DIB and SSI regulations are virtually identical. As a result,
citations will be made to the DIB regulations found at 20 C.F.R. §§ 404.1500-404.1599,
unless a SSI regulation provides otherwise. The parallel regulations are found at 20
C.F.R. §§ 416.900-416.999, corresponding to the last two digits of the DIB citations,
e.g., 20 C.F.R. § 404.1563(c) corresponds to 20 C.F.R. § 416.963(c).
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404.1509; 404.1510. The ability of a claimant to engage in work for limited
periods of time certainly calls into question the severity of the impairment, but it
does not necessarily determine whether the impairment, however, severe, has
lasted for at least 12 months.
While a claimant need only show that an alleged impairment has lasted or can be
expected to last for the 12 month period to meet the duration requirement, a
claimant alleging a mental impairment may face a difficulty not presented in
cases involving physical impairment. As one court has stated,
While the mere existence of symptom-free periods may negate a finding of
disability when a physical impairment is alleged, symptom-free intervals
do not necessarily compel such a finding when a mental disorder is the
basis of the claim. Unlike a physical impairment, it is extremely difficult to
predict the course of mental illness. Symptom-free intervals, though
sometimes indicative of a remission in the mental disorder, are generally
of uncertain duration and marked by an impending possibility of relapse.
Realistically, a person with a mental impairment may be unable to engage
in competitive employment, as his ability to work may be sporadically
interrupted by unforeseeable mental setbacks.
Lebus v. Harris, 526 F.Supp. 56, 61 (N.D. Cal. 1981).
Because of such considerations, the courts which have considered the question
have concluded that a claimant whose claim is based on a mental condition does
not have to show a 12 month period of impairment unmarred by any symptomfree interval. . . . We agree with the assessment of these courts. A finding that a
claimant has a mental impairment which manifests itself from time to time over a
long-term period is not inconsistent with the language of the statute, which
requires that an impairment last “for a continuous period of 12 months.”. . . . Of
course, as required by the regulations, the claimant must present medical
evidence which indicates that his mental condition is a long-term problem and not
just a temporary setback.
Singletary v. Bowen, 798 F.2d 818, 821-22 (5th Cir. 1986) (citations omitted). See
Lane v. Astrue, No. 1:09-cv-00159-MP-AK, 2010 U.S. Dist. LEXIS 75846, at *28-30
(N.D. Fla. July 28, 2010) (citing Singletary) (“While the Eleventh Circuit Court of Appeals
has not decided this precise issue, other courts that have considered the durational
requirement for a mental impairment and have determined that a plaintiff need not show
12 months of impairment without any periods of remission.” Id. at *29 (citations

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omitted); see also Peterson v. Comm’r of Soc. Sec., Case No. 6:10-cv-1817-ORL31KRS, 2012 U.S. Dist. LEXIS 20577, at *27-28 (M.D. Fla. Jan. 31, 2012), adopted,
2012 U.S. Dist. LEXIS 20726 (M.D. Fla. Feb. 17, 2012).
The Commissioner analyzes a claim in five steps. 20 C.F.R. § 404.1520(a)(4)(i)(v).
1.

Is the individual currently engaged in substantial gainful activity?

2.

Does the individual have any severe impairments?

3.
Does the individual have any severe impairments that meet or
equal those listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P?
4.
Does the individual have the RFC to perform work despite
limitations and are any impairments which prevent past relevant work?
5.

Do the individual's impairments prevent other work?

A positive finding at step one or a negative finding at step two results in disapproval of
the application for benefits. A positive finding at step three results in approval of the
application for benefits. At step four, the claimant bears the burden of establishing a
severe impairment that precludes the performance of past relevant work. Consideration
is given to the assessment of the claimant’s RFC and the claimant’s past relevant work.
If the claimant can still do past relevant work, there will be a finding that the claimant is
not disabled. If the claimant carries this burden, however, the burden shifts to the
Commissioner at step five to establish that despite the claimant's impairments, the
claimant is able to perform other work in the national economy in light of the claimant’s
RFC, age, education, and work experience. Phillips, 357 F.3d at 1237; Jones v. Apfel,
190 F.3d 1224, 1229 (11th Cir. 1999); Chester, 792 F.2d at 131; MacGregor v. Bowen,
786 F.2d 1050, 1052 (11th Cir. 1986); 20 C.F.R. § 404.1520(a)(4)(v), (e) & (g). If the
Commissioner carries this burden, the claimant must prove that he or she cannot

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perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987).
As the finder of fact, the ALJ is charged with the duty to evaluate all of the
medical opinions of the record resolving conflicts that might appear. 20 C.F.R.
§ 404.1527. When considering medical opinions, the following factors apply for
determining the weight to give to any medical opinion: (1) the frequency of examination
and the length, nature, extent of the treatment relationship; (2) the evidence in support
of the opinion, as “[t]he more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more weight” that opinion
is given; (3) the opinion’s consistency with the record as a whole; (4) whether the
opinion is from a specialist and, if it is, it will be accorded greater weight; and (5) other
relevant but unspecified factors. 20 C.F.R. § 404.1527(b) & (c).
The opinion of the claimant’s treating physician must be accorded considerable
weight by the Commissioner unless good cause is shown to the contrary. Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). This is so because treating physicians
“are likely to be the medical professionals most able to provide a detailed, longitudinal
picture of your medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings alone or
from reports of individual examinations, such as consultative examinations or brief
hospitalizations.” 20 C.F.R. § 404.1527(c)(2). “This requires a relationship of both
duration and frequency.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). “‘The
treating physician doctrine is based on the assumption that a medical professional who
has dealt with a claimant and his maladies over a long period of time will have a deeper

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insight into the medical condition of the claimant than will a person who has examined a
claimant but once, or who has only seen the claimant’s medical records.’ Barker v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (emphasis added).” Id.
As the Supreme Court recently observed, “the assumption that the opinions of a
treating physician warrant greater credit that [sic] the opinions of [other experts]
may make scant sense when, for example, the relationship between the claimant
and the treating physician has been of short duration.” Black & Decker Disability
Plan v. Nord, [538 U.S. 822, 832 (2003)]. Moreover, a longstanding treatment
relationship provides some assurance that the opinion has been formed for
purposes of treatment and not simply to facilitate the obtaining of benefits.
A physician’s opinion is therefore not entitled to controlling weight on the
basis of a fleeting relationship, or merely because the claimant designates the
physician as her treating source. Absent an indication than an examining
physician presented “the only medical evidence submitted pertaining to the
relevant time period,” the opinion of an examining physician who only saw the
claimant once is not entitled to the sort of deferential treatment accorded to a
treating physician’s opinion. Reid v. Chater, 71 F.3d 373, 374 (10th Cir. 1995)
(emphasis added).
Doyal, 331 F.3d at 762-63.
The reasons for giving little weight to the opinion of the treating physician must
be supported by substantial evidence, Marbury v. Sullivan, 957 F.2d 837, 841 (11th Cir.
1992), and must be clearly articulated. Phillips, 357 F.3d at 1241. “The Secretary must
specify what weight is given to a treating physician’s opinion and any reason for giving it
no weight, and failure to do so is reversible error.” MacGregor, 786 F.2d at 1053.
The ALJ may discount a treating physician’s opinion report regarding an inability to work
if it is unsupported by objective medical evidence and is wholly conclusory. Edwards v.
Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991). Stated somewhat differently, the ALJ
may discount the treating physician’s opinion if good cause exists to do so. Hillsman v.
Bowen, 804 F. 2d 1179, 1181 (11th Cir. 1986). Good cause may be found when the
opinion is “not bolstered by the evidence,” the evidence “supports a contrary finding,”

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the opinion is “conclusory” or “so brief and conclusory that it lacks persuasive weight,”
the opinion is “inconsistent with [the treating physician’s own medical records,” the
statement “contains no [supporting] clinical data or information,” the opinion “is
unsubstantiated by any clinical or laboratory findings,” or the opinion “is not
accompanied by objective medical evidence.” Lewis, 125 F.3d a1436, 1440 (11th Cir.
1997); Edward, 937 F.2d at 583 (citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir.
1987)). Further, where a treating physician has merely made conclusory statements,
the ALJ may afford them such weight to the extent they are supported by clinical or
laboratory findings and are consistent with other evidence as to a claimant’s
impairments. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986).
The credibility of the claimant’s testimony must be considered in determining if
the underlying medical condition is of a severity which can reasonably be expected to
produce the alleged pain. Lamb v. Bowen, 847 F.2d 698, 702 (11th Cir. 1988); see
Moore v. Barnhart, 405 F.3d at 1212 (“credibility determinations are the province of the
ALJ”). If an ALJ refuses to credit subjective pain testimony where such testimony is
critical, the ALJ must articulate specific reasons for questioning the claimant’s credibility.
See Wilson, 284 F.3d 1225. Failure to articulate the reasons for discrediting subjective
testimony requires, as a matter of law, that the testimony be accepted as true. Id. On
the other hand, “[a] clearly articulated finding with substantial supporting evidence in the
record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562
(11th Cir. 1995).
III. Findings of the ALJ
The ALJ made several findings relative to the issues raised in this appeal:

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1. “The claimant meets the insured status requirement of the Social Security Act
through June 30, 2013.” R. 13.
2. “The claimant has not engaged in substantial gainful activity since September
1, 2011, the alleged onset date.” Id.
3. “The claimant has the following medically determinable impairments: bipolar
disorder, post-traumatic disorder, borderline personality disorder, and a
history of sexual abuse.” R. 14.
4. “The claimant does not have an impairment or combination of impairments
that has significantly limited (or is expected to significantly limit) the ability to
perform basic work-related activities for 12 consecutive months; therefore, the
claimant does not have a severe impairment or combination of impairments.”
Id. (emphasis added). The ALJ discussed relevant medical and other
evidence. R. 15-18. The ALJ considered the four broad functional areas
(known as the “paragraph B” criteria) set out in section 12.00C of the Listing
of Impairments in 20 C.F.R, Part 404, Subpart P, Appendix 1 and determined
that Plaintiff had mild restriction in activities of daily living; mild difficulties in
social functioning; mild difficulties in concentration, persistence or pace; and
no episodes of decompensation which have been of extended duration.
R. 18-21. The ALJ stopped her analysis at step 2.
5. “The claimant has not been under a disability, as defined in the Social
Security Act, from September 1, 2011, through the date of [the ALJ’s]
decision.” R. 21.
IV. Evidence
A. Plaintiff’s Hearing Testimony
Plaintiff was born in 1990 and 22 years of age at the time of the hearing. R. 30,
265. She is married, with no children, and lives in a house with her husband. R. 31.
Her mother-in-law lives next door. R. 44. She has a driver’s license but does not drive
often--maybe once a week or every two weeks to the grocery store or gas station.
R. 31; see R. 49 (she has no car). She has no hobbies; she colors, plays on the
computer, and watches television. Id. She does not go to church or visit friends or
relatives. R. 31-32, 42. She does not like to drive at night. R. 42. She tries to avoid
people and keep to herself. Id. She goes to the Elks Club to support her husband, but

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she is moody and irritable and does not like being there. Id. It hurts her to initiate a
conversation because she is “not a very social person.” Id. She has said “some offcolored things” to a lady volunteer worker at the club who told Plaintiff she could not
wear certain clothes and was later told by another that she could wear what she
wanted, within reason.4 R. 43.
Plaintiff dresses herself, but has some problem dressing appropriately and is
helped by her husband. R. 43. Her husband “helps [her] out all the time” and “his mom
helps [her] out when she can.” R. 44. She does not feel she can live on her own. Id.
She tried living in a trailer the first time she moved out but was not successful--she got
“kicked out three weeks later because [she could not] pay what” was due. Id. She
thinks she would “probably fall apart” without her husband. Id. She would have no
stability and no one to remind her to take her medication or take a shower or other basic
activities. Id. She reiterated that she does not like being around other people but fears
being alone. R. 44-45.
Plaintiff recently had a miscarriage and was in the hospital overnight and taking
an antibiotic and Lortab as needed as needed for pain. R. 32. Prior to being pregnant,
she was taking Trazodone (as a mental health medication) and would restart after the
miscarriage. R. 33.
On a typical day, Plaintiff sleeps until noon to 1 p.m. depending on how she feels,
arises, watches television, and may eat. Id. She would watch more television (e.g.
4

The ALJ may consider a claimant’s daily activities when evaluating the
claimant’s subjective complaints of disabling pain and other symptoms. Macia v.
Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987); 20 C.F.R. § 404.1529(c)(3)(i). But see
Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997) (“participation in everyday
activities of short duration, such as housework or fishing” does not disqualify a claimant
from disability). The ALJ considered Plaintiff’s daily activities. R. 18-19.
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Judge Judy, Vampire Diaries, MTV, Wifeswap, and switching channels, R. 41), eat
dinner, and that would complete her day. Id. She cooks from time to time and for the
most part does the grocery shopping. Id. She does not do dishes or laundry; her
husband does the laundry. R. 33-34, 43. She vacuums floors, does not dust, cleans
the bathroom from time to time but does not take out the garbage or do yard work or
gardening. R. 34. She does not sleep very well at night; she sleeps mostly during the
day, approximately 16 hours in a 24 day. R. 39-40. It is her “way of dealing with [her]
life that [she does not] really, particularly, care much for.” Id. She developed these
sleep patterns before she became pregnant. Id. She gets some sleep but for the most
part gets up and either walks around or uses the bathroom. She “just can’t get
comfortable enough to fall deep asleep.” R. 41.
Plaintiff completed the 12th grade and pursued vocational training in
cosmetology but never finished the program for financial and emotional reasons. She
never worked in the field. (She stated she was “on too many different types of drugs to
control [her] disorder and [she] couldn’t function right to finish.” She experienced similar
issues when she worked for Whataburger when she would cry a lot and go home.)
R. 34, 45-46. She did not serve in the military because her step-mother told them she
was bipolar and, as a result, the military told her Plaintiff would not be allowed to join the
military. R. 35.
At the time of the hearing, she had health insurance coverage under her
husband’s insurance that started in October or November of 2012, but clarified there
was a period when she did not have health insurance prior to this time.5 She does not
5

A September 15, 2011, patient note stated that Plaintiff had recently lost
insurance coverage. R. 363; see infra at n. 9.
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receive food stamps. Plaintiff did not testify that she was unable to receive medical
treatment because she did not have health insurance. R. 35-36.
Plaintiff stated that she never had a full-time job, only part-time jobs. R. 35. She
stated she was unable to work because she did “not handle stress well, and [she does]
not like being around a bunch of people.” Id. Her last part-time job was with
Whataburger in 2010 and 2011 and she worked four times a week and maybe a fivehour shift as a cashier, dropping fries into the fryer and working at the window passing
out drinks. R. 37. (Her job at Whataburger was her only job. R. 50, 197-204. Plaintiff
has reported wages of $2,769.32 and $4,497.39 in 2010 and 2011, respectively, while
working at Whataburger. R. 197-202, 204.) The job did not work well for her. She
used profanity toward the customers and was written-up “quite a bit” and, as a result,
worked in the back area. R. 37-38. She argued a lot with employees and especially
with her boss because she did not agree with her treatment at the workplace. R. 38.
She decided to quit because she “was too overly stressed” and her boss told her that
“she was trying to find a way to fire [her] or to get [her] to quit legally because” they
“can’t fire people who have disabilities.” R. 38-39. Plaintiff stated that she “[p]robably”
could not handle that job today. She does not like being around people and dealing
with stress as she does not deal with stress very well. R. 39.
Plaintiff testified that her most recent receipt of counseling or treatment/therapy
began in in January 2013. R. 35, 50. She really did not feel she needed therapy or
counseling before then, but “thought it would be a good idea to help [her], but personally
[she did not] [ ] therapy really helps [her] at all anyway, so --.” R. 36.

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Plaintiff stated her relationship with her father and step-mother is non-existent
now. She made an “off-colored” statement on Facebook which they did not like and
they said they filed a police report saying she was “crazy” and did not want anything to
do with her even after reporting the miscarriage. R. 47.
Plaintiff “feel[s] angry all the time and it’s usually not for any particular reason
other than [her] life kind of sucks.” Id. She has directed her anger at her husband and
once she threw a remote at his head (and hit him a couple of times) “for just something
he did that irritated [her.]” R. 47-48. She also directed her anger toward animals or
whoever gets in her way. R. 47. She broke their television set and her husband’s XBox with a hammer because she was mad. R. 48. Her husband works full-time and
she calls him a lot to be home with her because she is home alone. R. 48-49.6
B. Testimony of Plaintiff’s Husband
Plaintiff’s husband, Mr. Henning, testified. R. 54-57. He agreed that Plaintiff has
a temper. R. 54. He stated that Plaintiff creates a façade in order to hold off her rage.
Id. Once the façade wears off, Plaintiff isolates or pushes people away. This behavior
has caused her to lose family members and friends and affected her when she has tried
to work such that she will show her anger toward them. Id. Plaintiff has lost most of her
friends. R. 55. She later regrets what she says due to her anger. Id. Mr. Henning
confirmed Plaintiff’s inappropriate behavior at the Elks Club. R. 55-56. He did not
believe Plaintiff could function without his help. Id. He has taken time from his work to
fix problems at home. R. 56. He has to remind Plaintiff to take her medications
otherwise she will not take them. Id. He stated that during her episodes of “deep6

Throughout the decision, the ALJ considered Plaintiff’s hearing testimony and
her other pre-hearing statements. R. 15-21.
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rooted anger,” Plaintiff “will forget the actions that she has taken.” R. 57. His mother
helps out on a regular basis when he is at work. Id.
Pursuant to Social Security Ruling 06-3p, the ALJ
considered the statements of the claimant’s husband regarding the claimant’s
functional limitations (Exhibit 3E). To the extent these statements are considered
opinions on the claimant’s functional limitations, the undersigned gives them little
weight because they were made by a lay (non-medical) source, they are not
entirely consistent with the medical evidence since the alleged onset date, and
due to the possibility that the individual making these statements may have
misrepresented the degree of the claimant’s limitations in order to increase the
likelihood of the claimant obtaining benefits.
R. 18
C. Medical and Other Evidence
At step 2, the ALJ made extensive findings that are set forth below.
Prior to the alleged onset date, Dr. Marianne McCain, Ph.D., a psychologist, had
treated the claimant for posttraumatic stress disorder, avoidant personality
features, and borderline personality features (Exhibit 1F, page 19). Dr. McCain
had administered IQ testing to the claimant, and the claimant’s IQ scores
indicated functioning in the Low Average to Average range of intelligence (Exhibit
1F, pages 7, 16).[7] The claimant was prescribed psychotropic medications for a
7

Dr. McCain had been Plaintiff’s psychologist since November 13, 2001.
R. 282-84. In this record, Dr. McCain’s first psychological evaluation occurred on April
11, 2005. R. 265-72. The second psychological evaluation occurred on July 17 and 18,
2007. R. 273-81. On September 13, 2007, Dr. McCain stated that her recent
evaluation of July 19, 2007, did not indicate that Plaintiff had ADHD, although she had
been diagnosed with PTSD, avoidant personality features, and borderline personality
features. It is also noted that Plaintiff was seeing a psychiatrist for medication
management of these disorders. R. 283. (On July 12, 2007, Dr. McCain referred
Plaintiff to Vincence F. Dillon, M.D., to be evaluated for the possibility of medication for
Bipolar Disorder and/or Borderline Personality Disorder. R. 283.) On June 25, 2008,
Dr. McCain advised Dr. Dillon that she saw Plaintiff “fairly regularly” and that she
continued “to show difficulty with decision making, poor judgment, inability to
understand the antecedent and consequences of behavior, and in general she has been
creating chaos in the family. Her parents have responded by boundering her, but this
only serves to infuriate” her. Dr. McCain asked Dr. Dillon to “evaluate her for
medication that would help her mood and assist her in understanding what is going on
around her.” R. 285. On July 14, 2008, Dr. McCain advised Dr. Dillon of her July 10,
2008, evaluation of Plaintiff noting, in part, that Plaintiff did not appear to be better in
terms of the way she was thinking, but was more motivated because of the threat of
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period of time between 2005 and 2008 (Exhibit 2F, pages 1-2).[8] Dr. Randi
McDonald, Psy.D., also performed a psychological evaluation of the claimant in
November 2010, during which Dr. McDonald diagnosed the claimant with bipolar
disorder with psychotic features (per report) and borderline personality disorder
and assigned her a Global Assessment of Functioning (GAF) score of 52 (Exhibit
3F, pages 6-7) [R. 316-17].[9] Dr. McDonald also administered IQ testing, and the
results indicated that the claimant was functioning in the Low Average range in
overall intellectual abilities, but there was no indication of a learning disorder, and
Minnesota Multiphasic Personality Inventory, Second Edition (MMPI-2) results
revealed that the claimant might have been responding in an exaggerated
fashion to the symptom list (Exhibit 3F, page 4, 6) [R. 314, 316]. About six
months before the alleged onset date, Dr. Vincence Dillon, M.D., began treating
the claimant at the request of the Division of Vocational Rehabilitation. Dr. Dillon
diagnosed the claimant with bipolar disorder and sexual abuse of a child (by
history) and assigned her a GAF score of 60 (Exhibit 2F, pages 5-6). Dr. Dillon
maintained the claimant on Strattera, which reportedly improved her attention
and energy, and the claimant had no mental status abnormalities (Exhibit 2F,
pages 15, 17). After she was started on Wellbutrin in June 2011, she reported
that she was less sad and her behavior was stable and uneventful (Exhibit 2F,
pages 17-20). In fact, Dr. Dillon assigned the claimant improved GAF score of
65 around this time (Exhibit 2F, page 19).[10] These GAF scores are consistent

being sent away to her mother’s. Plaintiff was having difficulty in understanding how
she could change her behavior of being out of control. R. 286.
8

According to Dr. Dillon’s notes of March 29, 2011, Prozac was stopped by
June 2007 because of mood swings; Plaintiff was not endorsing it but relatives were; by
December 2007, Seroquel was initiated for Bipolar Disorder and when Plaintiff was
“psychiatrically hospitalized”; by June 2008, Strattera was initiated because of ADHDlike symptoms; by July 2008, Strattera and Seroquel were stopped; and since that time,
Plaintiff was followed by Dr. Tran and Seroquel was titrated up to 600 mg a day, but
Plaintiff had increased moodiness and irritability. Plaintiff presented for further testing.
R. 289. Dr. Dillon saw Plaintiff on March 29-30, 2011, April 7, 2011, May 1 and 3, 2011,
and June 6, 2011. R. 288-305. The ALJ briefly summarized Dr. Dillon’s evaluations
below.
9

Dr. McDonald reported in a January 4, 2011, psychological evaluation that
Plaintiff was referred to her by Ms. Elizabeth Leath of the Division of Vocational
Rehabilitation for the purpose of conducting a psychological evaluation. R. 311; see
R. 319-20 (Dec. 17, 2010 letter to Ms. Leath reporting, in part, a GAF score of 52). The
evaluation was performed on November 3 and 5, 2010. Id. Dr. McDonald noted on
September 15, 2011, to Summer Hanson, Division of Vocational Rehabilitation, that
Plaintiff had “recently lost insurance coverage and is in need of assistance with paying
for psychiatric medications and medication management services.” R. 363.
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with the claimant’s GAF scores from the Cordova Counseling Center during that
time (Exhibit 3F, pages 11, 15-16, 18-19, 30-33) [R. 311-43]. It should also be
noted that the claimant was working as a cashier/fry cook at a fast-food
restaurant [Whataburger] between August 2010 and September 2011 despite her
medically determinable impairments (Exhibit 2E). The claimant reportedly
stopped working on the alleged onset date because she moved out of a bad
situation and could not drive the additional thirty miles in addition to her medical
conditions (Exhibit 2E). However, she testified at the hearing that she stopped
working because she was stressed, her boss wanted to dismiss her from
employment, and she was denied a promotion. Nevertheless, after the alleged
onset date, the claimant continued to submit resumes. Although she had broken
up with her boyfriend, she had started living with a friend in September 2011
(Exhibit 3F, page 14). She reportedly had a stable living situation in October
2011, and although she became established with a staffing company, she felt
she was not ready to go back to work. She also reported waning interest in
cosmetology school but expressed interest in a vocational evaluation to help get
her refocused on goals for school/work (Exhibit 3F, page 21). She maintained a
good relationship with her friend with whom she was living, and even
10

The American Psychiatric Association: Diagnostic and Statistical Manual of
Mental Disorders (DSM-IV-TR) (4th Ed. Text Revision 2000), includes the GAF Scale
that is primarily used by mental health practitioners. The GAF Scale is used to report
“the clinician’s judgment of the individual’s overall level of functioning” (with regard to
only psychological, social, and occupational functioning) and “may be particularly useful
in tracking the clinical progress of individuals in global terms, using a single measure.”
See DSM-IV-TR 32-34. The GAF scale is divided into 10 ranges of functioning, each
with a 10-point range in the GAF scale. Id. See Nichols v. Astrue, Case No.
3:11cv409/LC/CJK, 2012 U.S. Dist. LEXIS 119347, at *26-29 (N.D. Fla. Aug. 7, 2012)
(discussing GAF scale). A GAF scale rating of 41-50 is indicative of serious symptoms
or any serious impairment in social, occupational or school functioning. DSM-IV-TR 34.
A GAF scale rating of 51-60 indicates moderate symptoms or moderate difficulty in
social, occupational, or school functioning. Id. A GAF score of 61 to 70 indicates some
mild symptoms or some difficulty in social, occupational, or school functioning, but
generally functioning pretty well and has some meaningful interpersonal relationships.
Id. A GAF score of 71 to 80 indicates that if symptoms are present, they are transient
and expectable reactions to psycho-social stressors; no more than slight impairment in
social, occupational, or school functioning. Id. The “Commissioner has declined to
endorse the GAF scale for ‘use in the Social Security and SSI disability programs,’ and
has indicated that GAF scores have no ‘direct correlation to the severity requirements of
the mental disorders listings.’” Wind v. Barnhart, 133 F. App’x 684, 692 n.5 (11th Cir.
2005) (citing 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000)). In the Fifth Edition of the
Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (2013), “[i]t was
recommended that the GAF be dropped from DSM-5 for several reasons, including its
conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its
descriptors) and questionable psychometrics in routine practice. In order to provide a
global measure of disability, the WHO DSM-5 (see the chapter “Assessment
Measures”).” DSM-5 at 16.
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contemplated starting a family with him (Exhibit 3F, pages 13, 22, 27-28). She
visited her boyfriend’s family in Marianna in November 2011, and she reported
that it “went well” (Exhibit 3F, page 22). She eventually got married in 2012
(Exhibit 5F). She stopped looking for work and planning to attend school
because she was contemplating having children, which is unrelated to her
medical conditions (Exhibit 3F, pages 12-13, 22). She was started on Depakote
in November 2011 and was doing well afterwards (Exhibit 3F, pages 20, 22).
Although her mood had been “fairly decent,” she reportedly discontinued her
psychotropic medications in December 2011 (Exhibit 3F, page 12) [R. 322; see
R. 323 (Dec. 15, 2011-“meds working well but ‘snapped a few days ago’ at their
dog”; R. 336 (Nov. 29, 2011-“started meds on Friday & seemed to be doing well,
mood is stable. Mood is ‘decent.’”)]. Treatment notes from the Cordova
Counseling Center reflect a normal mental status and no suicide/violence risk
between September 2011 and January 2012. During that time, she was
assigned GAF scores of 65-70 between September and October 2011, 55-70 in
November 2011, 65 in December 2011, and 60 in January 2012 (Exhibit 3F,
pages 12-14, 21-22, 29).[11]
The record reflects a significant yearlong gap in the claimant’s history of
treatment between January 2012 and January 2013, despite the claimant's
allegations of disability since September 1, 2011. The January 2013 treatment
notes from the Life Management Center note that the claimant had been out of
care for an extended period. The claimant’s complaints at this time included
depression, sleep problems, tiredness/fatigue, violence, anger, hearing/seeing
things, and social and family problems. She reportedly had no real friends and
expressed violence towards her husband at times but had a fair relationship with
him. She also reported that she played with animals, watched television, and
slept in her free time. The licensed mental health counselor assigned the
claimant a GAF score of 50 at this time (Exhibit 7F) [R. 356-59].
At the request of the Social Security Administration, Dr. Cara Wheeler, Psy.D.,
performed a psychological consultative examination of the claimant in December
2012 [R. 347-50]. The claimant reported a history of abuse, academic difficulty,
and poor interpersonal relationships. She reportedly was “court ordered” to
begin psychiatric treatment at thirteen years old, and she said that she had been
hospitalized twice. She also alleged that she had engaged in animal cruelty.
However, she admitted that she was not currently receiving any type of mental
health care. Dr. Wheeler diagnosed bipolar I disorder, most recent episode
unspecified, severe with psychotic features, and borderline personality disorder
(by history). Dr. Wheeler assigned the claimant a GAF score of 48 and indicated
that there might be times when she would require hospitalization for stabilization
due to severity of her symptoms (Exhibit 5F).[12]
11

GAF scores from April through August 2011 ranged from 60 to 70. R. 321,
325-29, 340-42. Plaintiff’s GAF score in January 2012 was 60. R. 322; see supra at
n. 10.
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The consultative examination report from December 2012 and the Life
Management Center treatment notes from January 2013 reflect that the
claimant’s impairments significantly limited her ability to perform basic work
activities at that time. However, the claimant’s impairments since then have not
resulted in limitations that have lasted for twelve consecutive months.
Additionally, given the claimant’s progress during previous treatment in 2011, the
evidence suggests that the claimant’s condition would improve with appropriate
treatment. Therefore, her impairments are not reasonably expected to last for a
period of twelve continuous months. As such, they do not meet the durational
requirements for disability (20 CFR 404.1505 and 416.905).
Prior to the hearing, the claimant alleged that her medication side effects
included sleepiness, increased rage, increased depression, increased suicidal
thoughts, problems with attention and short-term memory, and zombielike/comatose effects that made it hard to function. However, she admitted that
12

Dr. Wheeler noted that as of the time of her evaluation in December 2012,
Plaintiff was “not receiving any mental health and stated that she is discouraged about
treatment because it has not been effective in the past. [Plaintiff] continues to struggle
with mood instability that includes: angry outburst, irritability, and aggression. In
addition to this she reported poor sleeping patterns, low motivation, and experiences
feelings of hopelessness and worthlessness.” R. 349, 350. Dr. Wheeler noted that
Plaintiff “would likely benefit from consistent psychiatric treatment. This would be for
her safety and the safety of others.” R. 350. Plaintiff was living with her husband at this
time. R. 347. Dr. Wheeler provided behavioral observations. R. 349. She also
reported the results of a mental status examination:
[Plaintiff] was oriented to time, place, person, and circumstances. She spoke
logically and coherently adopting normal rate and adequate volume of speech.
Content of her speech was consistent with the reported level of education and
average intellectual functioning. She stated that she thinks that she “hears
voices” most of the time, but denies any other type of hallucinations. She did not
exhibit any bizarre thoughts or behaviors. She did not appear to be responding
to unseen stimuli. In response to question should provide relevant and well
elaborated answers. She had no difficulty recounting life events in estimating
their chronology. She reported some difficulties with concentration. She was
able to spell the word “world” forwards and backwards. She reports some
problems with memory. She repeated a list of three unrelated objects and she
recalled two of the three after a brief delay with a distractive task. She stated her
mood the past two weeks has been “wishy washy.” Her affect was appropriate.
She denied suicidal or homicidal intent or plan, but stated that when she gets
angry she thinks of harming others. She stated she has difficulty getting to sleep
at night. She reports her appetite “depends.” She appeared to be adequately
nourished.
Id.
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she was not taking medications at times (Exhibits 4E; 3F, pages 7, 28). In fact,
the claimant admitted that she discontinued her psychotropic medications in
December 2011 [R. 322, 349]. (Exhibits 3F, page 12; 5F). This detracts from
her credibility regarding the nature and severity of her limitations from her mental
health disorders. Furthermore, she had repeatedly denied any medication side
effects on other occasions (Exhibit 2F, pages 15, 17, 19; 3F, page 20).
As for the opinion evidence, little weight is afforded to Dr. Wheeler’s opinion that
the claimant might require hospitalization for stabilization at times because of the
severity of her symptoms because there is no evidence of inpatient treatment
since the alleged onset date (Exhibit 7F). Furthermore, her opinion is
inconsistent with notations in the treatment notes from the Cordova Counseling
Center showing normal mental status and no suicide/violence risk and the
yearlong gap in mental health treatment between 2012 and 2013. In contrast,
the state agency psychological consultants concluded that the claimant did not
have a severe medically determinable mental impairment (Exhibits 1A; 2A; 5A;
6A). Significant weight is given to these opinions, considering the consistency
with the treatment notes from Cordova Counseling Center in 2011 and the
yearlong gap in the claimant’s mental health treatment between 2012 and 2013.
Prior to the alleged onset date, Dr. McDonald commented after the examination
in November 2010 that the claimant’s history indicated longstanding difficulties
with mood disturbance that continued to impact her daily functioning and
relationships with others. However, Dr. McDonald also believed that the claimant
was capable of continuing her education, was motivated to succeed in life, and
possessed the capability for managing her behavior. In fact, Dr. McDonald noted
that the claimant’s vocational rehabilitation prognosis appeared good (Exhibit 3F,
pages 7-8, 10). Consistent with this opinion, the claimant began working as a
cashier/fry cook at a fast-food restaurant for six hours a day and four days per
week in August 2010 (Exhibit 2E). Additionally, as previously stated, even after
the claimant left her fast-food job, she continued to look for work and was
established with Landrum Staffing before she stopped looking for work so that
she could start a family. Therefore, great weight is given to Dr. McDonald’s
opinions solely concerning the claimant’s prognosis for vocational rehabilitation.
Otherwise, Dr. McDonald’s opinions are given little weight considering the normal
mental status and no suicide/violence risk notations in the Cordova Counseling
Center treatment notes from 2011 and the yearlong gap in mental health
treatment between 2012 and 2013.[13]
13

Dr. McDonald recorded Plaintiff expressing suicidal thoughts or ideation on
May 26, 2011, R. 329; June 17, 2011, R. 325; and August 16, 2011, R. 342. Her
suicide/violence risk was noted “none” on May 26 and June 28, 2011, and “ideation
only” on June 17, 2011. R. 325, 329, 342; see also R. 321-24, 326-28, 331-36, 340-41,
343 (‘reporting “none” for suicide/violence risk). Her GAF scores on May 26 and August
16, 2011, were 65, and 60 on June 17, 2011. Id.

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Opinions expressed by Dr. McCain in 2005 and 2008 are given little weight
because of the remoteness of those opinions with the alleged onset date of
disability (Exhibit 1F). Moreover, the opinions from the state agency
psychological consultants are more consistent with the medical evidence of
record since the alleged onset date, which includes notations in the treatment
notes from the Cordova Counseling Center showing normal mental status and no
suicide/violence risk in 2011 and the yearlong gap in mental health treatment
between 2012 and 2013.
R. 15-18.
As part of her step 2 analysis, the ALJ considered the four broad functional
areas, the “paragraph B” criteria in section 12.00C of the Listings of Impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. R. 18. The ALJ concluded: “Because the
claimant’s medically determinable mental impairments’ cause no more than “mild”
limitation in any of the first three functional areas and “no” episodes of decompensation
which have been of extended duration in the fourth area, they are nonsevere (20 CFR
404.1520a(d)(1) and 416.920a(d)(1)).” R. 18-21.
V. Legal Analysis
The ALJ’s decision to deny Plaintiff’s applications for benefits based upon
a finding that Plaintiff’s mental impairments are not severe at step 2 of the
sequential evaluation process is not supported by controlling principles of
law.
Plaintiff argues that the ALJ erred in determining that Plaintiff did not have a
severe impairment. Doc. 17 at 22-25. To this end, Plaintiff argues that the ALJ gave
too much weight to non-examining State agency consultants who rendered opinions at
the initial, R. 59-65, 67-73 (Exhibits 1A and 2A), and reconsideration, R. 77-85, 87-95
(Exhibits 5A and 6A) stages of agency review and too little weight to the opinion of
examining State agency consultant’s opinion (Dr. Wheeler), R. 347-50. Doc. 17 at 22.

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Plaintiff also argues that the ALJ erred when she mistakenly stated that Dr. McDonald
“never noted [Plaintiff] as a suicide risk during her yearlong treatment with
Dr. McDonald. (R. 17).” Doc. 17 at 22-23. According to Plaintiff, the ALJ compounded
her error by giving Dr. McDonald’s opinion “little weight considering the normal mental
status and no suicide/violence risk notations in the Cordova Counseling Center
treatment notes from 2011.” R. 17. Doc. 17 at 23.
At step two, it is Plaintiff’s burden to produce evidence of and prove that she has
severe mental impairments that significantly limit her ability to perform basic mental
work-related activities. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). The
issue is whether the claimant has shown that he or she has a condition that has more
than “a minimal effect on her ability to: walk, stand, sit, lift, push, pull, reach, carry, or
handle, etc.” Flynn v. Heckler, 768 F.2d 1273, 1275 (11th Cir. 1985) (relying on 20
C.F.R. § 404.1521). To be considered “severe,” a medical condition must constitute
more than a “deviation from purely medical standards of bodily perfection or normality.”
McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). Further, a diagnosis alone is
not a sufficient basis for a finding that an impairment is severe because “the ‘severity’ of
a medically ascertained disability must be measured in terms of its effect upon ability to
work, and not simply in terms of deviation from purely medical standards of bodily
perfection or normality.” Id. at 1547. “[I]n order for an impairment to be non-severe, ‘it
[must be] a slight abnormality which has such a minimal effect on the individual that it
would not be expected to interfere with the individual’s ability to work, irrespective of
age, education, or work experience.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.

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1986) (citing Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984)); Edwards v. Heckler,
736 F.2d 625, 630 (11th Cir. 1984); and Flynn, 768 F.2d at 1274.
On the other hand, “[s]tep two is a threshold inquiry. It allows only claims based
on the most trivial impairments to be rejected. The claimant’s burden at step two is
mild. . . .Claimant need show only that her impairment is not so slight and its effect is
not so minimal.” McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (clarifying
Brady). It was been said that step two of the sequential analysis may do no more than
screen out de minimus claims. Stratton v. Bowen, 827 F.2d 1447, 1453 (11th Cir.
1987). Nevertheless, an impairment is not severe if it does not significantly limit a
claimant’s mental ability to do basic work activities. 20 C.F.R. § 404.1521(a). “Basic
work activities” include: physical functions such as walking, standing, sitting, lifting,
pulling, reaching, carrying, or handling; capacities for seeing, hearing, and speaking;
understanding, carrying out, and remembering simple instructions; use of judgment;
responding appropriately to supervision, co-workers, and usual work situations; and
dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b)(1)-(6)
(emphasis added). (The emphasized items listed above appear most relevant in this
case.) If a claimant has none or mild limitations in activities of daily living, social
functioning, and concentration, persistence or pace, and none in the area of episodes of
decompensation, the claimant is generally considered to have no severe mental
impairment unless the evidence otherwise indicates that there is more than a minimal
limitation in the claimant’s ability to do basic work. 20 C.F.R. § 404.1520a(d)(1).14

14

The ALJ is not required, however, to identify all of the impairments that should
be considered severe. See Heatly v. Comm’r of Soc. Sec., 382 F. App'x 823, 825 (11th
Cir. 2010) (unpublished).
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Mental impairments are evaluated based on how the claimant’s mental
impairment impacts four functional areas: “Activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation.” 20 C.F.R.
§ 404.1520a(c)(3). If the degree of limitation in the first three functional areas is rated
as “none” or “mild,” and “none” in the fourth area, the Commissioner generally
concludes the impairment is not severe. 20 C.F.R. § 404.1520a(d)(1). The ALJ must
incorporate the results of this analysis into her findings and conclusions. Moore, 405
F.3d at 1213-14. Cuthbert v. Astrue, 303 F. App’x 697, 699 (11th Cir. 2008)
(unpublished). The ALJ provided an extensive analysis of the evidence relating to these
functional areas. R. 18-21.
At step two, the ALJ determined that Plaintiff had several medically determinable
impairments: bipolar disorder, post-traumatic disorder, borderline personality disorder,
and a history of sexual abuse.” R. 14. After discussing the relevant evidence, the ALJ
concluded that Plaintiff did not have any severe impairments. As a result, the ALJ
determined Plaintiff was not disabled. R. 21.
Plaintiff’s alleged onset of disability is September 1, 2011. R. 11. Plaintiff was
born in 1990 and 22 years of age at the time of the hearing. R. 30. Plaintiff had been in
therapy with Dr. McCain, a licensed psychologist, since November 13, 2001. R. 265-72,
282.15
Dr. McCain performed the first record psychological evaluation on April 11, 2005,
and “her diagnoses looked like Borderline Personality Disorder and [PTSD.]” Id.; see
supra at n.7. The second evaluation occurred on July 17 and 18, 2007, and
15

Dr. Wheeler noted that at the age of 13, Plaintiff was “court ordered” to begin
psychiatric treatment and since that time had been hospitalized twice and has received
years of psychiatric care. R. 350.
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Dr. McCain, in a March 5, 2008, letter, noted that Plaintiff “carries a diagnosis of
[PTSD], avoidant personality features, and borderline personality features” and given
her issues, “tends to display poor judgment in which she fails to anticipate the
consequences of her actions.” R. 273-81, 284. In a June 25, 2008, letter to Dr. Dillon,
a treating psychiatrist, Mr. McCain again noted that Plaintiff “continues to show difficulty
with decision making, poor judgment, inability to understand the antecedents and
consequences of behavior, and in general she has been creating chaos in the family.”
R. 285. Dr. McCain asked Dr. Dillon to evaluate Plaintiff “for medication that would help
her mood and assist her in understanding what is going on around her.” Id.; see R. 286
(follow-up letter to Dr. Dillon from Dr. McCain). Plaintiff was almost 18 years of age
when Dr. McCain rendered her second evaluation. The ALJ gave Dr. McCain’s
opinions in 2005 and 2008 “little weight” because they are remote from the alleged
onset of disability. R. 18.
Dr. McDonald, a licensed psychologist with the Cordova Counseling Center,
evaluated Plaintiff in November 2010 and diagnosed Plaintiff with bipolar disorder with
psychotic features (per report) and borderline personality disorder. R. 311-18.
(Ms. Elizabeth Leach of the Division of Vocational Rehabilitation referred Plaintiff to
Dr. McDonald. R. 311, 319-20.) Dr. McDonald administered IQ testing and the results
indicated that Plaintiff was functioning in the Low Average range in overall intellectual
abilities, but no indication of a learning disorder, R. 314, and, as noted by the ALJ, the
MMPI “results revealed that the claimant might have been responding in an
exaggerated fashion to the symptom list.” R. 15 (citations omitted); see R. 316.

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Dr. McDonald summarized her evaluation and noted, in part, that Plaintiff “impressed
[her] as a young woman who is motivated to succeed in life. She expressed an interest
in cosmetology and has spent some time in a training program for such. She would like
to continue her education in the near future. She faces significant challenges with
regards to mood and management of related behaviors, but [she believe[d]] she
possess the capability for doing so.” R. 318.
Dr. McDonald listed several strengths and weaknesses, including a strength that
“vocational rehabilitation prognosis appears good.” Id.; see R. 320. Some of Plaintiff’s
weaknesses included chronic mood disturbance with history of suicide attempts; limited
adaptive coping skills for emotional distress; appears to have limited social supports;
conflict with family members; and medication side effects. R. 318. As noted by the
ALJ:
[c]onsistent with this opinion, the claimant began working as a cashier/fry cook at
a fast-food restaurant [Whataburger] for six hours a day and four days per week
in August 2010 (Exhibit 2E). Additionally, as previously stated, even after the
claimant left her fast-food job, she continued to look for work so that she could
start a family. Therefore, great weight is given to Dr. McDonald’s opinions solely
concerning the claimant’s prognosis for vocational rehabilitation. Otherwise,
Dr. McDonald’s opinions are given little weight considering the normal mental
status and no suicide/violence risk notations in the Cordova Counseling Center
treatment notes from 2011 and the yearlong gap in mental health treatment
between 2012 and 2013.
R. 17 (emphasis added). (Dr. McDonald, from Cordova, treated Plaintiff from
approximately April 2011 to January 2012. R. 321-43.)
Plaintiff states that the ALJ never noted that Plaintiff was a suicide risk during her
year-long treatment with Dr. McDonald and that Dr. McDonald recorded Plaintiff
expressing suicidal ideations on May 26, 2011, R. 329, June 16, 2011, R. 325, and
August 16, 2011. Doc. 17 at 22-23. Plaintiff takes the ALJ to task for her statement that

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Dr. McDonald had “no suicidal/violence notations in the Cordova Counseling Center
treatment notes from 2011” and claims the ALJ made a “blatant mischaracterization of
Dr. McDonald’s notes.” Doc. 12 at 23.
Dr. McDonald noted Plaintiff expressing suicidal thoughts or ideation on May 26,
2011, R. 329 (“recent suicidal thoughts”); June 17, 2011, R. 325 (“suicidal ideation”);
and August 16, 2011, R. 342 (“reported feeling suicidal”). Dr. McDonald reported
Plaintiff’s suicide/violence risk assessment, however, as “none” on May 26, June 28,
and August 16, 2011, and “ideation only” on June 17, 2011, the only treatment date
when this box is checked. R. 325-26, 329, 342; see also R. 321-24, 326-28, 331-36,
340-41, 343 (‘reporting “none” for suicide/violence risk). Her GAF scores on May 26
and August 16, 2011, were 65, R. 329, 342, and 60 on June 17, 2011, R. 325. See
supra at n. 10.
Plaintiff’s last treatment with Dr. McDonald occurred on January 6, 2012. R. 322.
The patient note states that Plaintiff discontinued psychotropic drugs on December 20,
2011, when her IUD was removed. Id. Plaintiff stated that her “mood has been ‘fairly
decent.’ Thinks she may be pregnant already.” Id. Plaintiff was applying for food
stamps and social security disability and had no plans for school or work. Id. Plaintiff
was “instructed to contact SURC and discuss changes in education/vocational goals
ASAP. [Plaintiff] [a]cknowledges that she is violating her contract with VR for the most
part. Id. Plaintiff’s mood and behavior control as well as conflict within the family was
noted as “quite poor.” Id. Plaintiff’s GAF score was 60. Id.
Plaintiff argues that the ALJ erred when she used Dr. McDonald’s notes to justify
discounting Dr. Wheeler’s opinion that, according to Plaintiff, Plaintiff “was a danger to

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herself and others, and might require hospitalization for stabilization. (R. 350)”; see doc.
17 at 23. At the request of the Social Security Administration, Dr. Wheeler, a licensed
psychologist, examined Plaintiff. R. 347-50. Dr. Wheeler noted that as of the time of
her evaluation in December 2012, Plaintiff was
not receiving any mental health and stated that she is discouraged about
treatment because it has not been effective in the past. [Plaintiff] continues to
struggle with mood instability that includes: angry outburst, irritability, and
aggression. In addition to this she reported poor sleeping patterns, low
motivation, and experiences feelings of hopelessness and worthlessness.
R. 349-50. Dr. Wheeler noted that Plaintiff “would likely benefit from consistent
psychiatric treatment. This would be for her safety and the safety of others.” R. 350.
Plaintiff was living with her husband at this time. R. 347. Dr. Wheeler provided
behavioral observations that were unremarkable. R. 349. She also reported the results
of a mental status examination:
[Plaintiff] was oriented to time, place, person, and circumstances. She spoke
logically and coherently adopting normal rate and adequate volume of speech.
Content of her speech was consistent with the reported level of education and
average intellectual functioning. She stated that she thinks that she “hears
voices” most of the time, but denies any other type of hallucinations. She did not
exhibit any bizarre thoughts or behaviors. She did not appear to be responding
to unseen stimuli. In response to question should provide relevant and well
elaborated answers. She had no difficulty recounting life events and estimating
their chronology. She reported some difficulties with concentration. She was
able to spell the word “world” forwards and backwards. She reports some
problems with memory. She repeated a list of three unrelated objects and she
recalled two of the three after a brief delay with a distractive task. She stated her
mood the past two weeks has been “wishy washy.” Her affect was appropriate.
She denied suicidal or homicidal intent or plan, but stated that when she gets
angry she thinks of harming others. She stated she has difficulty getting to sleep
at night. She reports her appetite “depends.” She appeared to be adequately
nourished.
Id. Dr. Wheeler reported her summary/conclusions:
[Plaintiff] is a 52 [sic]-year-old female who presents with a history of abuse,
academic difficulty, and poor interpersonal relationships. At the age of 13 she

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was “court ordered” to begin psychiatric treatment. Since that time she has been
hospitalized twice has received many years of psychiatric care. In addition she
reports to animal cruelty that led to death. [Plaintiff] is not currently receiving any
type of mental health care and would likely benefit from consistent psychiatric
treatment. This would be for her safety and the safety of others. There may also
be times when she will require hospitalization for stabilization due to the severity
of her symptoms.
R. 350. The ALJ appropriately summarized Dr. Wheeler’s conclusions. R. 16. The ALJ
properly afforded “little weight” to Dr. Wheeler’s opinion that Plaintiff might require
hospitalization for stabilization “because there is no evidence of inpatient treatment
since the alleged onset date” of September 1, 2011. R. 17. The ALJ also concluded
that Dr. Wheeler’s opinion on this point was “inconsistent with notations in the treatment
notes from Cordova Counseling Center showing normal mental status and no
suicidal/violence risk in the year-long gap in mental health treatment from 2012 and
2013.” Id.
As noted above, Plaintiff’s last treatment with Dr. McDonald occurred on January
6, 2012. R. 322. Plaintiff’s next evaluation occurred on January 14, 2013, when
Plaintiff was evaluated at Life Management. R. 356-59. Thus, there is a year-long gap
between evaluations as noted by the ALJ throughout her decision. R. 16-18.
During the hearing on June 12, 2013, Plaintiff told the ALJ that she had been
seen on January 14, 2013, at Life Management and thereafter. R. 50. The ALJ told
Plaintiff’s counsel that she needed “the updated records.” R. 51. The ALJ reported that
as of the decision date, September 12, 2013, no records were provided. R. 11, 21.
Nevertheless, notations are provided by Life Management regarding Plaintiff’s mental
status, including that Plaintiff had no suicidal or homicidal ideation, but that the risk
assessments for each were not completed. R. 358. There is also a notation under risk

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of injury to self or others as “[p]resent (comment on precautions),” and that Plaintiff
denied suicidal ideation “but often hits husband and throws things.” R. 359. A notation
indicates that Plaintiff is unemployed and that her job functioning is not impaired. Id. It
is noted that Plaintiff had a long history of mental illness and counseling and wanted to
resume services and that Plaintiff was being seen for mood instability and rages.
R. 358. Counseling was recommended. R. 359.
It appears Plaintiff lost her health insurance in or around September 2011, see
R. 363, although she continued to receive mental health treatment until January 16,
2012, R. 322, and regained health insurance under her husband’s insurance in or
around October or November 2012. R. 35-36. Her next mental health evaluation was
on January 14, 2013. R. 356-59. There is no concrete evidence that Plaintiff sought
mental health treatment during the gap period and was unable to obtain same because
of her lack of insurance.
For the ALJ, the year-long gap in Plaintiff’s mental health treatment is significant.
During the hearing, Plaintiff testified that her most recent receipt of counseling or
treatment/therapy began in January 2013 at Life Management. R. 50. She stated that
she did not feel she needed therapy or counseling before then, but “thought it would be
a good idea to help [her], but personally [she did not] [ ] therapy really helps [her] at all
anyway, so --.” R. 36.
Giving the Plaintiff the benefit of the doubt, the ALJ noted that Dr. Wheeler’s
December 2012 consultative report and the Life Management treatment notes from
January 2013,
reflect that the claimant’s impairments significantly limited her ability to perform
basic work activities at that time. However, the claimant’s impairments since

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then have not resulted in limitations that have lasted for twelve consecutive
months. Additionally, given the claimant’s progress during previous treatment in
2011, the evidence suggests that the claimant’s condition would improve with
appropriate treatment. Therefore, her impairments are not reasonably expected
to last for a period of twelve continuous months. As such, they do not meet the
duration requirements for disability (20 CFR 404.1505 and 416.905).
R. 17. Herein lies the rub.16
The record shows that Plaintiff has had a troubled past that is well-chronicled.
See, e.g., R. 311-13. By age 20, Dr. McDonald, Plaintiff’s treating psychologist, noted
in late 2010 (report dated January 4, 2011) that Plaintiff was capable of continuing her
education, was motivated to succeed in life, possessed the capability for managing her
behavior, and had a “good” prognosis for vocational rehabilitation. R. 17, 317-18.
Dr. Dillon, a treating psychiatrist, began treating Plaintiff on March 29, 2011.
R. 288; see supra at n. 8. On June 6, 2011, Dr. Dillon noted that Plaintiff was stable on
Wellbutrin and examination revealed Plaintiff “to have no serious mental status
abnormalities.”17 R. 304. As of June 27, 2011, Plaintiff’s behavior had been stable and
uneventful and medication compliance was good. R. 306. Her GAF score was 65. Id.;
see supra at n.10. Plaintiff’s insight and judgment were intact. Id.
After the alleged onset date and after she quit her job at Whataburger, Plaintiff
continued to submit resumes and apply for jobs, indicating she believed herself capable
of working. R. 16, 324 (Sept. 14, 2011). By October 11, 2011, Plaintiff got established
at Landrum Staffing, but told Dr. McDonald that she was not ready to return to work.

16

For the first time, Plaintiff argues in her memorandum that “the record actually
supports an onset date of much earlier-December 2005.” Doc. 17 at 25. Plaintiff did
not raise this point before the ALJ or the Appeals Council. See, e.g., R. 175-79.
17
Plaintiff referenced that Dr. Dillon recorded Plaintiff’s “suicidal ideations.” Doc.
17 at 23. Dr. Dillon noted: “Suicidal ideations are acknowledged but suicidal intentions
or plans are convincingly denied.” Id.
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R. 321. On November 29, 2011, Plaintiff advised Dr. McDonald that she was thinking of
getting married and having a baby so she was not looking for work. R. 16, 332. She
was started on Depakote and doing well in December 2011. R. 16, 330, 332. By
January 16, 2012, Dr. McDonald noted that Plaintiff discontinued all psychotropic drugs
(on December 20, 2011) when her IUD was removed. Her mood had been “fairly
decent”’ and she thought she might be pregnant. R. 16, 322.
“[A]s required by the regulations, the claimant must present medical evidence
which indicates that [her] mental condition is a long-term problem and not just a
temporary setback.” Singletary v. Bowen, 798 F.2d at 822. Here, Plaintiff’s mental
condition has been a problem since she was first treated by Dr. McCain in 2001.
R. 282-84. Plaintiff’s ups and downs since that time have been documented, except for
the almost year-long gap in mental health treatment between January 2012 and
January 2013. R. 16-18.
The ALJ examined all of the relevant medical and other evidence in the record.
The ALJ, however, relied heavily on the gap in medical treatment records for a year that
occurred not long after the alleged onset date of September 1, 2011. R. 16-18.
(Plaintiff does not contend that any such records exist such that the record was
inadequate.)
For reasons unknown, although Plaintiff testified that she was treated after
January 2013 at Life Management, R. 50-53, 58, and through no fault of the ALJ, no
records of any such treatment or a medical source statement regarding Plaintiff’s
current mental functioning report from Life Management, see R. 51-52, 58, were
presented to the ALJ or the Appeals Council, despite Plaintiff’s counsel being afforded

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considerable time from the hearing date of June 12, 2013, through the date of the
decision, September 12, 2013, to produce any such records. After the hearing, Plaintiff
provided the Appeals Council with some treatment records from Cordova Counseling
Center from December 17, 2010, to December 14, 2011, but no other records. R. 179,
80 (Exhibit 20B), 360-404 (Exhibit 8F). The Court will not indulge in speculation
regarding the absent records.
Emphasizing the threshold nature of the step 2 finding, the McDaniel court
observed that the proper standard “allows only claims based upon the most trivial
impairments to be rejected.” McDaniel, 800 F.2d at 1031. Accordingly, “severe
impairment” is a “de minimis requirement which only screens out those applicants
whose medical problems could not ‘possibly’ prevent them from working.” Stratton, 827
F.2d at 1452 n.9 (quoting Baeder v. Heckler, 768 F.2d 547, 551 (3d Cir. 1985)). Here,
the ALJ determined that several of Plaintiff mental impairments were non-severe and
that ended her analysis at step 2. R. 17; see supra at 32.
Notwithstanding the ALJ’s detailed summary of the relevant evidence, including
the ALJ’s consideration of the “paragraph B” criteria, see R. 18-21, having considered
the entire record and given the limited burden placed on Plaintiff at this stage (step 2) of
the 5 step sequential evaluation process, it cannot be said that Plaintiff’s reported
mental impairments are not so trivial such that they are not reasonably expected to last
for a period of twelve continuous months and have not adversely affected Plaintiff’s
ability to perform some of the basic work activities such as use of judgment and

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responding appropriately to supervision, co-workers, and usual work situations. See 20
C.F.R. §§ 404.1505, 404.1521 (b)(4)-(5).18
The controlling principles of law require the ALJ at step 2 to reject only the most
trivial impairments as non-severe. Further, as the Fifth Circuit observed, “the courts
which have considered the question have concluded that a claimant whose claim is
based on a mental condition does not have to show a 12 month period of impairment
unmarred by any symptom-free interval,” Singletary, 798 F.2d at 822. The Singletary
court distinguished between the duration of severe episodes and the duration of the
impairment itself. “A finding that a claimant has a mental impairment which manifests
itself from time to time over a long-term period is not inconsistent with the language of
the statute, which requires that an impairment last ‘for a continuous period of 12
months.’” Id. at 822 (emphasis added); see 42 U.S.C. § 423(d)(1)(A); 20 C.F.R.
§ 404.1509 (duration requirement). Plaintiff’s mental condition has manifested itself
from time to time over a long-term period, despite some gaps in evaluation and
treatment, periods when Plaintiff actually worked (albeit part-time), and made some
positive strides in coping with her mental impairments, as noted by the ALJ, R. 15-21.
Singletary, 798 F.2d at 822.
The Court does not render an opinion on whether Plaintiff is unable to work and
disabled. The Court only concludes that the ALJ erred in stopping her analysis at step 2
given the record evidence and controlling legal principles discussed above. According,
this case is reversed and remanded to an ALJ to perform the remainder of the
18

This conclusion is bolstered by the ALJ’s finding that “[t]he consultative
examination report from December 2012 and the Life Management Center treatment
notes from January 2013 reflect that the claimant’s impairments significantly limited her
ability to perform basic work at that time.” R. 17; see supra at 32.
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sequential evaluation, including the step 3 analysis; consider whether Plaintiff has the
RFC to perform work despite limitations; whether any impairments prevent Plaintiff from
performing any past relevant work (if any); and whether Plaintiff’s impairments prevent
her from performing other work at step 5. The ALJ should consider whether the
assistance of a vocational expert would be beneficial in resolving the issues at steps 4
and 5.19
V. Conclusion
Considering the record as a whole, substantial evidence does not support the
findings of the Administrative Law Judge at step 2 and she did not apply controlling
principles of law at this stage of the sequential evaluation process. Accordingly,
pursuant to the fourth sentence in 42 U.S.C § 405(g), the decision of the Commissioner
to deny Plaintiff's applications for Social Security benefits is REVERSED and this case
is REMANDED for further proceedings consistent with this order.
IN CHAMBERS at Tallahassee, Florida, on January 20, 2015.

s/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE

19

In light of the decision made herein, it is unnecessary to consider other issues
raised by Plaintiff. Doc. 17 at 24-31.
Case No. 5:14cv87-CAS