Columbus v. Colvin

Filing 13

ORDER AND OPINION AFFIRMING the final decision of the Commissioner. Signed by Magistrate Judge Alan J. Baverman on 9/10/15. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ANTISA DENISE COLUMBUS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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CIVIL ACTION FILE NO.
1:13-cv-04266-AJB

O R D E R A N D O P I N I O N1
Plaintiff Antisa Denise Columbus (“Plaintiff”) brought this action pursuant to
section 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), to obtain judicial
review of the final decision of the Acting Commissioner of the Social Security
Administration (“the Commissioner”) denying her application for Supplemental

1

The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. (See Dkt. Entries dated 9/15/14 & 9/17/14). Therefore, this Order
constitutes a final Order of the Court.

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Security Income Benefits (“SSI”) under the Social Security Act.2 For the reasons
below, the undersigned AFFIRMS the final decision of the Commissioner.
I.

PROCEDURAL HISTORY
Plaintiff protectively filed an application for SSI on July 16, 2010, alleging

disability commencing on July 15, 2010. [Record (hereinafter “R”) 107-14]. Plaintiff’s
application was denied initially and on reconsideration. [See R55-75]. Plaintiff then
requested a hearing before an Administrative Law Judge (“ALJ”). [R76-77]. An
evidentiary hearing was held on January 20, 2012. [R28-54]. The ALJ issued a
decision on April 23, 2012, denying Plaintiff’s application on the ground that she had
not been under a “disability” at any time through the date of the decision. [R14-22].
2

Title II of the Social Security Act provides for federal Disability Insurance
Benefits (“DIB”). 42 U.S.C. § 401 et seq. Title XVI of the Social Security Act,
42 U.S.C. § 1381, et seq., provides for SSI benefits for the disabled. Unlike Title II
claims, Title XVI claims are not tied to the attainment of a particular period of
insurance disability. Baxter v. Schweiker, 538 F. Supp. 343, 350 (N.D. Ga. 1982).
Otherwise, the relevant law and regulations governing the determination of disability
under a claim for DIB are nearly identical to those governing the determination under
a claim for SSI. Wind v. Barnhart, 133 Fed. Appx. 684, 690 n.4 (11th Cir. June 2, 2005)
(citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4 (11th Cir. 1986)). Thus, in
general, the legal standards to be applied are the same regardless of whether a claimant
seeks DIB, to establish a “period of disability,” or to recover SSI, although different
statutes and regulations apply to each type of claim. See 42 U.S.C. § 1383(c)(3)
(establishing that the judicial provisions of 42 U.S.C. § 405(g) are fully applicable to
claims for SSI). Therefore, to the extent that the Court cites to DIB cases, statutes, or
regulations, they are equally applicable to Plaintiff’s SSI claims.
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Plaintiff sought review by the Appeals Council, and the Appeals Council denied
Plaintiff’s request for review on November 20, 2013, making the ALJ’s decision the
final decision of the Commissioner. [R4-8].
Plaintiff then filed the present action in this Court on December 26, 2013,
seeking review of the Commissioner’s decision. [See Doc. 1]. The answer and
transcript were filed on September 12, 2014. [See Docs. 8, 9]. On October 16, 2014,
Plaintiff filed a brief in support of her petition for review of the Commissioner’s
decision, [Doc. 11], and on November 17, 2014, the Commissioner filed a response in
support of the decision, [Doc. 12].3 The matter is now before the Court upon the
administrative record, the parties’ pleadings, and the parties’ briefs, and it is
accordingly ripe for review pursuant to 42 U.S.C. § 1383(c)(3).

3

Plaintiff did not file a reply brief, and no request for oral argument was
filed. (See Dkt.).
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II.

FACTS BEFORE THE ALJ4
A.

Background

Plaintiff’s date of birth is September 21, 1984, and she was therefore twenty-five
years old at her alleged disability onset and twenty-seven years old at the time the ALJ
issued his decision. [R107]. She alleges disability due to anxiety, depression, and
bipolar disorder. [R40, 141, 180, 206].
B.

Lay Testimony
1.

Plaintiff

Plaintiff testified that she did not believe she could hold a job because she gets
“real restless.” [R33]. She described difficulty focusing on job tasks when around
other people and stated that she lost her last job—cashier in a fast-food
restaurant—because she could not focus or “stay right,” which led to a conflict with her
supervisor. [R33, 37].
When asked about substance abuse, Plaintiff indicated that she had not used
cocaine since 2007, [R33-34]; quit using marijuana about six months before the
hearing, [R34]; and rarely used alcohol, [R34]. She reported that she lived with her

4

In general, the records referenced in this section are limited to those
deemed by the parties to be relevant to this appeal. [See Docs. 11, 12].
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mother and had two children who did not live with her. [R35]. She testified that she
had completed the eighth grade, [R36], and that she did not have a driver’s license,
[R35-36].
When the ALJ asked about a tax return showing that in 2007 Plaintiff had
reported approximately $12,006 in self-employment income, Plaintiff said that she did
not know and did not do her taxes. [R37-38]. She also stated that she had been in and
out of incarceration. [R38].
Plaintiff reported that she stayed around the house all day and could sweep the
floor, do laundry, and “try” to make the bed, but did not cook, wash dishes, take out the
garbage, work outside in the yard, or go shopping. [R41-42]. She indicated that she
would go visit with her children on weekends. [R41-42].
Plaintiff stated that she cannot focus when she is around other people and feels
like everyone is against her. [R42]. She described “blanking out” when she would
have flashbacks to her past, and she stated that when she is around others she has mood
swings. [R44]. She reported that she has damaged property and hurt herself and others
when upset. [R44-45].

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2.

Plaintiff’s Friend

A friend of Plaintiff’s testified that she had seen Plaintiff every day for a little
over a year. [R51-52]. The friend testified that Plaintiff had taken to her, but that no
one else in the neighborhood liked Plaintiff because Plaintiff “has went off on
everyone, even like their parents.” [R52]. The friend reported that Plaintiff was always
trying to fight and was crying “all the time.” [R52-53]. She indicated that Plaintiff did
not finish tasks around the house and was prone to being distractible to the point of
leaving the stove on. [R53].
C.

Administrative Records

In an undated disability report, Plaintiff indicated that she worked for “various
employers” in 2001 and again from 2006 through 2008, but that she stopped working
on December 31, 2008, because of her condition. [R141-42]. She also reported that
she earned a General Educational Development (“GED”) certificate in 2008. [R141].
In an adult function report dated July 28, 2010, Plaintiff reported that she cooked
for her mother, washed clothes and dishes when her mother encouraged her, researched
colleges, often left the house, went on walks, shopped for clothing in stores, attended
church, played with her children, and otherwise spent a lot of time with family.
[R154, 156-58]. When asked to describe difficulties getting along with others, she
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stated that her sister sometimes picks on her and that she did not like the police but tried
to abide by their rules. [R159-60]. She indicated that she had no problem with her own
personal care. [R155]. She reported that she could count change but was unable to
handle a savings account, use a checkbook, or pay bills. [R157].
In an undated third-party function report, Plaintiff’s aunt reported that Plaintiff
hardly sleeps and sometimes needs to be reminded to fix her hair and dress
appropriately. [R163-64]. She also indicated that Plaintiff did not have trouble getting
along with family, friends, or neighbors, but that Plaintiff did not talk to people outside
the family. [R167].
A report of contact dated December 16, 2010, indicated that Plaintiff had been
in jail from March 30, 2007, through July 15, 2010, and that she had a GED certificate.
[R170].
An adult function report5 dated February 19, 2011, indicates that Plaintiff had
attitude issues and mood swings, only talked to her mother, “hated” authority, and
feared people. [R201-02].

5

The report was written from Plaintiff’s point of view but was signed by
Ross Mincey. [R196-203]. The court has been unable to locate anything in the record
describing Mr. Mincey’s relationship to Plaintiff.
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D.

Medical Records

On August 11, 2010, Plaintiff was seen by Margaret A. Redus, LCSW, at the
DeKalb Community Service Board. [R274]. Ms. Redus noted that Plaintiff admitted
to being very irritable, isolating herself, having difficulty concentrating, having
anhedonia,6 and having poor sleep/appetite. [R274]. Ms. Redus further observed that
Plaintiff had a blunted/flat affect. [R274].
On August 12, 2010, Plaintiff returned to the DeKalb Community Service Board
for a psychiatric diagnostic interview with Jean H. Robinson, M.D., upon referral by
“the prison system.” [R275]. It was noted that Plaintiff had been given medication in
prison for depression, bipolar disorder, and post-traumatic stress disorder (“PTSD”).
[R275]. Plaintiff reported depression, periods of excessive energy/feeling hyperactive,
and anger, with some destructive outbursts. [R275]. Her current medications were
Tegretol, Zoloft, and Wellbutrin, which, she reported, kept her “mellow.” [R275].
During her interview with Dr. Robinson, Plaintiff reported visual and tactile
hallucinations that started after a friend died in her company; she felt she did not “do
enough” to save him. [R275]. She admitted to paranoia and feeling that people are
6

Anhedonia is the inability to derive pleasure from most activities. See
Anxiety Disorders Association of America, Depression,
http://www.adaa.org/understanding-anxiety/depression (last visited 9/7/15).
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watching her, talking about her, and thinking of doing something to her. [R275]. She
reported having racing thoughts most of the time. [R275]. She stated that she had been
in school through the eleventh grade and had earned a GED in prison. [R276].
Dr. Robinson found that Plaintiff had a mood disorder that persisted in prison,
long after any drug or alcohol use, and she noted that Plaintiff experienced mood
changes from depression to agitation to anger. [R276]. Dr. Robinson also found that
Plaintiff had symptoms of PTSD, plus hallucinations related to her teen prostitution and
to her friend’s death. [R276]. Dr. Robinson assigned Plaintiff a Global Assessment of
Functioning (“GAF”) score of 47.7 [R274].
On October 6, 2010, Plaintiff returned to the DeKalb Community Service Board
and briefly met with Jennifer L. Whaley, M.D., after arriving several hours late for her
appointment. [R372]. Plaintiff reported that she did not feel her medication was
working because she got angry often and felt agitated and restless. [R372]. She also
indicated that she was not sleeping at night but napped during the day. [R372].
7

The GAF is a numeric scale (0 through 100) that considers psychological,
social, and occupational functioning on a hypothetical continuum of mental-health
illness.
Diagnostic and Statistical Manual of Mental Disorders 32-34
(4th ed., Text Revision, 2000). A GAF score between 41 and 50 indicates “[s]erious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR
any serious impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job).” Id. at 34.
9

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Dr. Whaley assessed Bipolar NOS; discontinued Tegretol for ineffectiveness and
because Plaintiff was at risk for pregnancy; started Risperdal; and continued Zoloft and
Wellbutrin. [R372].
At an appointment with the DeKalb Community Service Board on
December 1, 2010, Plaintiff reported that her mood and sleep had stabilized with
medication but that she was eating less. [R376]. She was continued on Risperdal,
Zoloft, and Wellbutrin. [R376].
On December 6, 2010, Plaintiff presented to Steven Snook, Ph.D., for a
consultative psychological evaluation. [R388-92]. Plaintiff stated that she was unable
to work because it was hard to be around people and concentrate, and she described
difficulty with thinking when under stress. [R388-89]. She also reported that she had
been expelled from school in the eighth grade and never received a GED. [R389].
Plaintiff reported that she had last been employed in 2007, as a cashier at a
fast-food restaurant. [R389]. She indicated that she got along fairly well with fellow
employees and supervisors there but that the job ended when she “was laid off.”
[R389].
Plaintiff indicated that she had been receiving mental health treatment through
the DeKalb Community Service Board’s Kirkwood Mental Health Center for a mood
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disorder and possible PTSD. [R389]. She stated that she was taking Risperdal,
Wellbutrin, and Zoloft. [R389]. She also reported that she had been treated in prison
with medication, group therapy, and individual therapy. [R389].
Plaintiff suggested that her mood disturbance had initially manifested when she
was a teenager. [R389]. She indicated that during that time, she was the victim of
repeated sexual abuse and had multiple arrests for running away and for prostitution.
[R390, 392]. She stated that in August 2008, a male friend died of a heart attack in
front of her while she attempted to transport him to a fire station for help. [R389]. She
reported intermittent insomnia and consistent difficulties with nightmares, intrusive
thoughts of seeing the face of the man who died, and feelings of guilt for being unable
to assist him effectively. [R389, 391]. She described intense mood swings in which
she wants to fight and curse and has increased energy for up to one day. [R391]. She
reported an extensive history of cannabis dependence but stated that she had been clean
for the past three months in an effort to regain custody of her children. [R392].
Plaintiff also told Dr. Snook she interacted with her boyfriend three or four times
per week, interacted consistently with her mother, and got along well with her mother
and stepfather. [R391]. Plaintiff reported having about three friends other than her
boyfriend and stated that she occasionally spoke with one of her sisters on the phone.
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[R391]. Plaintiff’s boyfriend told Dr. Snook that Plaintiff spent her days cleaning and
on the computer, [R391], and Plaintiff reported spending time reading novels and using
social media web sites, such as Facebook, Monster.com, and MocoSpace. [R390].
Plaintiff also reported that she independently saw to her hygienic needs, cleaned house,
did laundry, and shopped for food items, and that she also prepared food, such as
chicken, rice, eggs, and microwave meals. [R390].
Plaintiff’s boyfriend reported that he had to “talk to her a lot because she doesn’t
think the medication is working right. It wears off too soon.” [R391]. He also
described her as having “a split personality” and stated that she “gets angry and cries
and is sad.” [R391].
On examination, Dr. Snook noted Plaintiff was cooperative and fully oriented,
with fair eye contact and clear, understandable speech. [R391]. Dr. Snook noted that
Plaintiff did appear to be “rather irritable” and stated that he anticipated that Plaintiff
“would likely have difficulty interacting with peers, supervisors, or the general public
due to her degree of irritability and poor emotional containment.” [R391-92]. He also
opined that Plaintiff would be capable of comprehending and carrying out simple but
not complex directives effectively and that Plaintiff would be capable of adhering to
work schedules and meeting appropriate production norms. [R392]. The diagnoses
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included cannabis dependence, in early full remission (per claimant report); nicotine
dependence; and PTSD, chronic. [R391].
In a Psychiatric Review Technique form dated December 22, 2010,
nonexamining state agency review physician John Hollender, Ph.D., noted the existence
of Affective Disorders, Anxiety-Related Disorders, and Substance Addiction Disorders.
[R394]. With regard to Affective Disorders, Dr. Hollender found that Plaintiff had a
disturbance of mood, accompanied by a full or partial manic or depressive syndrome,
with the depressive syndrome characterized by anhedonia, sleep disturbances, feelings
of guilt or worthlessness, and difficulty concentrating or thinking, and the manic
syndrome characterized by flight of ideas. [R397]. With respect to Anxiety-Related
Disorders, Dr. Hollender found that Plaintiff’s anxiety was evidenced by recurrent and
intrusive recollections of a traumatic experience and that the recollections were a source
of marked distress. [R399]. Dr. Hollender opined that Plaintiff would have moderate
difficulties in maintaining social functioning and moderate difficulties in maintaining
concentration, persistence, or pace. [R404].
In a Mental Residual Functional Capacity (“RFC”) Assessment also dated
December 22, 2010, Dr. Hollender opined that there was no evidence of limitation in
Plaintiff’s ability to accept instructions, respond appropriately to criticism from
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supervisors, get along with coworkers or peers without distracting them or experiencing
behavioral extremes, or respond appropriately to changes in the work setting. [R409].
He also found that there was no significant limitation in Plaintiff’s ability to ask simple
questions, request assistance, be aware of work hazards and take appropriate
precautions, travel in unfamiliar places, use public transportation, set realistic goals, or
make plans independently of others. [R409]. Dr. Hollender did opine, however, that
Plaintiff had moderate limitations in her ability to carry out detailed instructions,
maintain attention and concentration for extended periods, complete a normal workday
and workweek without interruptions from psychologically based symptoms, perform
at a consistent pace without an unreasonable number and length of rest periods, interact
appropriately with the general public, maintain socially appropriate behavior, and
adhere to basic standards of neatness and cleanliness. [R408-09]. Dr. Hollender also
opined that Plaintiff was “not impaired” in the area of adaptive functioning and that
although Plaintiff’s suspiciousness and irritability caused her to be briefly inappropriate
with others, he did not believe that any of Plaintiff’s limitations were substantial.
[R410].
Notes from the DeKalb Community Services Board indicate that Plaintiff then
began missing appointments and was last treated on February 16, 2011. [R417]. In
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June 2011, Plaintiff’s treatment was discontinued after she failed to appear for
scheduled appointments for more than 120 days. [R416].
In March 2011, state agency psychologist Frances Breslin, Ph.D., reviewed the
record. [R58-63]. Dr. Breslin assessed moderate difficulty in maintaining social
function and maintaining concentration, persistence, or pace, [R60], and opined that,
despite these moderate difficulties, Plaintiff was not significantly limited in asking
simple questions, requesting assistance, or maintaining socially appropriate behavior,
and could perform work involving no intensive interaction with the public, only casual
contact with peers, and direct and non-confrontational correction, [R63]. With regard
to adaptive function, Dr. Breslin opined that Plaintiff was moderately limited in her
ability to respond appropriately to changes in the work setting and her ability to set
realistic goals or make plans independently of others but could adapt to change
introduced in a gradual, low-stress manner, avoid hazards, travel independently, and
make day-to-day plans. [R63].

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A list of medications submitted on January 20, 2012, the date of the hearing
before the ALJ, indicated that Plaintiff was taking Risperidone for bipolar and
depression and was taking sertraline8 for depression. [R419].
E.

Vocational-Expert Testimony

When asked about the availability of jobs for a hypothetical person of Plaintiff’s
age, education, and work history, who could understand, remember, and carry out
simple tasks, who could work in the presence of others but should not be required to
work in close coordination with others, and who should not be subjected to the stress
of production work, the vocational expert (“VE”) testified that the person could work
as a hand packager, house sitter, and cuff folder. [R49-50]. When asked about the
availability of jobs for that person if she would interrupt her work two to three times
per week with inappropriate or aggressive behavior toward coworkers, supervisors, or
the public, for ten to fifteen minutes at a time, the VE stated that the person could not
perform any work. [R50-51].

8

Zoloft is the brand name for sertraline. MedlinePlus, Sertraline,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697048.html (last visited 9/7/15).
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III.

ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact and conclusions of law:
1.

The claimant has not engaged in substantial gainful activity since
July 16, 2010, the application date (20 CFR 416.971 et seq.).

...
2.

The claimant has the following severe impairments: bipolar
disorder; unspecified affective psychosis; history of post-traumatic
stress disorder (“PTSD”); and history of polysubstance abuse
(20 CFR 416.920(c)).

...
3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926).

...
4.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform a full range of work at all exertional levels, but with
non-exertional limitations. She is able to understand, remember,
and carry out simple tasks. She should not be required to work in
close coordination with others, but may work in the presence of
others. In addition, she should not be subjected to the stress of
production work.

...
5.

The claimant has no past relevant work (20 CFR 416.965).
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...
6.

The claimant was born on September 21, 1984, and was 25 years
old, which is defined as a younger individual age 18-49, on the date
the application was filed (20 CFR 416.963).

7.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964).

8.

Transferability of job skills is not an issue because the claimant
does not have past relevant work (20 CFR 416.968).

9.

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

...
10.

The claimant has not been under a disability, as defined in the
Social Security Act, since July 16, 2010, the date the application
was filed (20 CFR 416.920(g)).

[R16-22].
The ALJ explained that he did not fully credit Plaintiff’s statements concerning
the intensity, persistence, and limiting effects of her symptoms because he found her
credibility to be questionable because her testimony was undermined by her own
inconsistent conduct and statements and her testimony also conflicted with medical
reports indicating that Plaintiff’s condition responded to treatment. [R19-21]. The ALJ

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also explained that he gave great weight to Plaintiff’s treating mental-health providers
at the DeKalb Community Services Board and that he gave some weight to the mental
assessments by the state agency psychological consultants and Dr. Snook “to the extent
the assessments are consistent with the record.” [R20].
IV.

PROCEEDINGS BEFORE THE APPEALS COUNCIL
In support of her petition to the Appeals Council, Plaintiff submitted a brief by

her representative, [R219-21], and medical records from the Grady Health System dated
December 7, 2004, through February 28, 2012, [R425-85]. [R7].
A.

Medical Records

The medical records indicated that Plaintiff presented at the Grady Health
System for a behavioral health diagnostic assessment on November 7, 2011. [R431].
She reported that she had stopped taking her medication eight months prior and was
having increased problems with nightmares, crying spells, emotional outbursts, mood
swings, forgetfulness, insomnia, and loss of appetite. [R431]. She stated that
medication had helped her and said she did not know why she had stopped taking it.
[R435]. It was noted that Plaintiff’s mood was initially guarded but then open and
cooperative. [R431]. She indicated that her last job ended in 2007 and that she had
completed tenth grade. [R445]. A nurse noted that Plaintiff’s mood was “angry” but
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that she was cooperative with normal speech.

[R437].

The nurse also listed

“parenting” and “people-oriented” among Plaintiff’s personal strengths. [R437]. It was
noted that Plaintiff wanted to restart medication. [R442].
On November 18, 2011, Plaintiff visited Dr. Chevelle Brudey, M.D., at Grady
for psychiatric treatment. [R438]. Dr. Brudey indicated that Plaintiff was depressed,
labile, irritable, and reactive, but cooperative, with good interaction and normal speech.
[R439]. She was restarted on Risperdal and Zoloft and referred for individual therapy.
[R439].
Plaintiff returned to Grady on January 13, 2012. [R440]. She reported that her
sleep and depression had improved but that her irritability was worse. [R440]. She was
noted to be cooperative upon examination and was continued on medication. [R441].
Plaintiff visited Grady again on February 14, 2012. [R432]. It was noted that
Plaintiff was depressed and tearful at times, but was cooperative, with normal speech,
good interaction, and fair judgment and insight. [R432].
At a visit to Grady on March 1, 2012, Plaintiff reported that she had stopped
taking the Risperal, stating that it “makes me a zombie.” [R426]. She stated that she
felt at risk of having physical altercations secondary to her anger if she was not on
effective medication but that she was currently still able to “walk away.” [R426].
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Plaintiff was noted to be cooperative upon examination, with good interaction, normal
speech, and fair judgment and insight. [R427].
B.

Appeals Council’s Determination

Upon Plaintiff’s request for review of the ALJ’s decision, the Appeals Council
reviewed Plaintiff’s case but found no reason to determine that the ALJ abused his
discretion; that there was an error of law; that the decision was not supported by
substantial evidence; that there was a broad policy or procedural issue that may affect
the public interest; or that after receiving the new evidence, the decision was contrary
to the weight of all the evidence of record. [R4]. Accordingly, the Appeals Council
denied Plaintiff’s request for review. [R4-5].
V.

STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if he is

unable 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), 1382c(a)(3)(A).

The impairment or

impairments must result from anatomical, psychological, or physiological abnormalities
which are demonstrable by medically accepted clinical or laboratory diagnostic
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techniques and must be of such severity that the claimant is not only unable to do
previous work but cannot, considering age, education, and work experience, engage in
any other kind of substantial gainful work that exists in the national economy.
42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
the existence of a “disability” and therefore entitlement to disability benefits.
See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step
sequential process to determine whether the claimant has met the burden of proving
disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
The claimant must prove at step one that he is not undertaking substantial gainful
activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the
claimant must prove that he is suffering from a severe impairment or combination of
impairments that significantly limits his ability to perform basic work-related activities.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, if the impairment
meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of
Impairments), the claimant will be considered disabled without consideration of age,
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education, and work experience.

See 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a
listed impairment, he must prove that his impairment prevents performance of past
relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five,
the regulations direct the Commissioner to consider the claimant’s residual functional
capacity, age, education, and past work experience to determine whether the claimant
can perform other work besides past relevant work.

See 20 C.F.R.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner must produce evidence that
there is other work available in the national economy that the claimant has the capacity
to perform. Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant
must prove an inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled,
the

sequential

evaluation

ceases

and

further

inquiry

ends.

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step
five, the overall burden rests on the claimant to prove that he is unable to engage in any
substantial gainful activity that exists in the national economy.

Doughty,

245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),

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superceded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991).
VI.

SCOPE OF JUDICIAL REVIEW
A limited scope of judicial review applies to a denial of Social Security benefits

by the Commissioner. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296
(N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court
may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If
substantial evidence supports the Commissioner’s factual findings and the
Commissioner applies the proper legal standards, the Commissioner’s findings are
conclusive. Lewis v. Callahan, 125 F.3d1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam);
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
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“Substantial evidence” means “more than a scintilla, but less than a
preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion, and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth,
703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary
of the ALJ’s findings, the ALJ’s decision will not be overturned where “there is
substantially supportive evidence” to support it. Barron v. Sullivan, 924 F.2d 227, 230
(11th Cir. 1991). In contrast, review of the ALJ’s application of legal principles is
plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker, 826 F.2d at 999.
Also, a “court must consider evidence not submitted to the [ALJ] but considered
by the Appeals Council when that court reviews the Commissioner’s final decision.”
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1258 (11th Cir. 2007). In
reviewing this additional evidence, the court must evaluate whether this “new evidence
renders the denial of benefits erroneous.” Id. at 1262. This means that the court must
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“determine whether the Appeals Council correctly decided that the ‘[ALJ’s] action,
findings, or conclusion is [not] contrary to the weight of the evidence currently of
record.’ ” Id. at 1266-67 (quoting 20 C.F.R. § 404.970(b)).
VII. CLAIMS OF ERROR
Plaintiff argues that the ALJ (1) erred in his RFC determination by failing to
make required findings or fully consider the evidence relating to Plaintiff’s ability to
respond appropriately to supervision, coworkers, and usual work situations, and
(2) erred in his credibility determination by reaching the RFC determination first, then
misstating evidence and failing to consider all of the evidence when he did evaluate
Plaintiff’s credibility, which (3) led the ALJ to pose an incomplete question to the
vocational expert, thereby eliciting irrelevant testimony. [Doc. 11 at 8-14]. The Court
addresses each allegation of error in the order it was raised in Plaintiff’s brief.
A.

RFC Determination

Plaintiff first takes issue with the ALJ’s RFC determination that she “should not
be required to work in close coordination with others, but may work in the presence of
others,” [R18].

[Doc. 11 at 8].

In support of this allegation of error,

Plaintiff—correctly—points out that pursuant to Social Security Ruling (“SSR”) 85-15,
the basic mental demands of unskilled work include, among other things, “the abilities
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(on a sustained basis) to . . . respond appropriately to supervision, coworkers, and usual
work situations,” and a substantial loss of ability to perform such basic work-related
activities “would severely limit the potential occupational base,” which may, in turn,
result in a finding of disability. [Doc. 11 at 8 (citing SSR 85-15 & SSR 96-8p
(providing that a “sustained” or “regular and continuing basis” is the equivalent of an
eight-hours-per-day, five-days-per-week work schedule))]. Plaintiff then argues that
the ALJ’s analysis did not satisfy SSR 85-15 because he did not make the required
findings relating to responding appropriately to supervision, coworkers, and usual work
situations, as the RFC references Plaintiff’s limitations in her ability to work with
“others,” a group she contends “seems to involve only coworkers” and not supervisors
or the public. [Doc. 11 at 9-10 [citing R18]]. Plaintiff then points to evidence
indicating that Plaintiff would have significant limitations dealing with supervisors and
the general public on a sustained basis. [Doc. 11 at 10-11 [citing R392 (Dr. Snook’s
opinion that Plaintiff would likely have difficulty interacting with peers, supervisors,
and the general public due to her degree of irritability and poor emotional containment);
R409 (Dr. Hollender’s opinion that Plaintiff would be moderately limited in her ability
to interact appropriately with the general public and to maintain socially appropriate
behavior); R37 (Plaintiff’s testimony that she left her last job due to conflict with a
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manager); R44-45 (Plaintiff’s testimony that she suffered from mood swings around
others and would damage property or hurt herself or others when upset); R52-53
(Plaintiff’s friend’s testimony that Plaintiff did not get along with anyone, got mad at
and tried to fight with people in the neighborhood, cried all the time, and was
distractible)].
To the extent that Plaintiff contends that there is evidence that she has limitations
in her ability to respond appropriately not only to coworkers but also to supervisors and
the public, the Court agrees. However, Plaintiff provides no support for her argument
that the ALJ’s reference to an ability to work with or around “others”—a broad
term—should be read narrowly to refer only to coworkers and not to supervisors or the
public. [See Doc. 11 at 9-10]. It also bears noting that even if the RFC is read narrowly
to exclude only work in close coordination with coworkers, Plaintiff has not argued that
any of the jobs the ALJ found her capable of performing—hand packager, house sitter,
or cuff folder—would in fact require Plaintiff to work in close coordination with
supervisors or the general public. See Doughty, 245 F.3d at 1278 n.2 (noting that it is
the claimant’s burden to prove that she is unable to perform the jobs that the
Commissioner lists); Young v. Astrue, No. 8:09-cv-1056, 2010 WL 4340815, at *4
(M.D. Fla. Sept. 29, 2010) (noting that, in general, an error is harmless in a Social
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Security case if it “do[es] not affect the ALJ’s determination that a claimant is not
entitled to benefits”).
For these reasons, the undersigned finds nothing in Plaintiff’s argument to
suggest reversible error in the ALJ’s consideration of her ability to work in close
coordination with or in the presence of coworkers, supervisors, or the general public.
B.

Credibility

Plaintiff also alleges that the ALJ erred in his evaluation of her credibility by
basing his credibility decision, in part, on the mistaken impression that the mentalhealth treatment records from Grady were not in the record; illogically and improperly
reaching his RFC determination prior to assessing Plaintiff’s credibility; and never
meaningfully discussing Plaintiff’s abilities in relation to social interaction and stress.
[Doc. 11 at 13]. The Court is not persuaded by any of these allegations of error.
First, the allegation that the ALJ never meaningfully discussed Plaintiff’s
abilities in relation to social interaction and stress is not presented as a developed
argument. [Doc. 11 at 13]. Plaintiff does not explain how the alleged error impacted
the credibility analysis, nor does she specify what evidence the ALJ purportedly failed
to discuss. [Id.]. Thus, whatever argument Plaintiff seeks to make, it is not properly
before the Court. See, e.g., Sanchez v. Comm’r of Soc. Sec., 507 Fed. Appx. 855, 856
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n.1 (11th Cir. Feb. 8, 2013) (per curiam) (noting that claimant waived certain arguments
by not expressly challenging the ALJ’s findings); Outlaw v. Barnhart,
197 Fed. Appx. 825, 827 n.3 (11th Cir. Aug. 10, 2006) (per curiam) (finding that the
plaintiff waived an issue by failing to elaborate on his argument or provide a citation
to authority regarding the argument).
Additionally, the undersigned finds that the ALJ’s decision did include a
meaningful discussion of Plaintiff’s difficulties in maintaining social functioning, as
he noted that Plaintiff was unable to get along with one of her sisters; repeatedly
referred to Plaintiff’s descriptions of her own moods as highly changeable, “irritable,”
and “real bitchy”; noted that Dr. Snook also found Plaintiff to be irritable; noted
Plaintiff’s testimony that she had lost a job due to interpersonal conflict and had a
history of violence against herself, others, and property; and explained that he
nevertheless considered Plaintiff to be only moderately limited in her social
functioning, as she reported during the evaluation with Dr. Snook that she interacts well
with her mother and stepfather, visits with her children, visits with one sister by
telephone, interacts with others on social media, got along fairly well with her
coworkers and supervisors during periods of employment, and lost the job in question
not due to interpersonal conflict but instead due to a layoff. [R17-20].
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The Court recognizes that the ALJ did not specifically refer to Plaintiff’s friend’s
testimony that she did not get along with anyone else in the neighborhood and that the
ALJ did not expressly cite Dr. Snook’s opinion that Plaintiff would likely have
difficulty interacting with peers, supervisors, or the general public due to her degree or
irritability and poor emotional containment. [See Doc. 11 at 11 (cited in support of
Plaintiff’s initial argument that the RFC did not properly exclude work in close
coordination with supervisors and the general public)]. Such specificity is not
necessary, however, so long as the decision is sufficient to allow the Court to conclude
that the ALJ consider Plaintiff’s medical condition as a whole. Taylor v. Comm’r of
Soc. Sec. Admin., 213 Fed. Appx. 778, 781 n.1 (11th Cir. Dec. 6, 2006) (per curiam)
(citing Dyer, 395 F.3d at 1211)). As the ALJ repeatedly remarked upon Plaintiff’s
irritability and limited Plaintiff from working in close coordination with any others, it
does indeed appear that he considered Plaintiff’s medical condition as a whole.
[See R18]. Thus, the Court finds no indication in this portion of Plaintiff’s brief that
the ALJ erred in his evaluation of Plaintiff’s credibility.
Second, Plaintiff’s argument that the ALJ erred by ignoring relevant medical
records from Grady Hospital is belied by an attentive reading of the record: the only
records from Grady Hospital that were presented to the ALJ pertained to obstetric and
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gynecological

care

administered

[R302-64, 420-24]. [R25-26].

in

2004,

2005,

and

November

2010,

The attorney-supplied evidence of mental-health

treatment that Plaintiff references was not submitted until the case reached the Appeals
Council. [R7].
Plaintiff does not argue that the Appeals Council failed to consider the new
evidence or that the new evidence shifts the weight of the evidence so as to render the
denial of benefits erroneous. Nor could she succeed on such an argument, as
examination of the new records reveals findings very much in line with the ALJ’s
opinion: while Plaintiff presented to Grady in November 2011 with complaints of
increased problems with nightmares, crying spells, emotional outbursts, mood swings,
forgetfulness, sleeping, and appetite, it was also noted that Plaintiff had stopped taking
her medication eight months prior for no reason, despite it having helped her, [R431,
435]; notes indicate that Plaintiff was generally cooperative with the healthcare
providers, [R427 (noting Plaintiff to be cooperative upon examination, with good
interaction, normal speech, and fair judgment and insight); R431 (observing that
although Plaintiff’s mood was initially guarded, she then became open and
cooperative); R432 (noting that Plaintiff was depressed and tearful at times, but was
cooperative, with normal speech, good interaction, and fair judgment and insight);
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R439 (indicating that Plaintiff was depressed, labile, irritable, and reactive, but
cooperative, with good interaction and normal speech); R441 (noting that Plaintiff was
cooperative upon examination); R437 (indicating that Plaintiff came across as “angry”
but was cooperative with normal speech and seemed “people-oriented”)]; Plaintiff
provided yet another inconsistent statement about the last grade she had completed in
school, [R445]; and although she complained that one of her medications made her “a
zombie,” she also reported that her sleep and depression had improved and indicated
that the medication helped control her anger, [R426]. Also notable is the fact that the
resumed treatment commenced only about two months before the hearing before the
ALJ. [Compare R28 with R428]. The Court therefore finds no reversible error in the
ALJ’s or the Appeals Council’s consideration of the Grady mental-healthcare treatment
notes.
Third, the Court is not persuaded that the ALJ approached the credibility
assessment illogically or that the credibility determination is not supported by
substantial evidence. [Doc. 17 at 22-23].
Relying on SSR 96-7p and a number of unpublished cases from District Courts
in New York applying the Seventh Circuit’s holding in Bjornson v. Astrue,
671 F.3d 640, 645 (7th Cir. 2012), Plaintiff faults the ALJ’s finding that Plaintiff’s
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medically determinable impairments could reasonably be expected to cause the alleged
symptoms but that her statements concerning the intensity, persistence, and limiting
effects of the symptoms were “not credible to the extent they are inconsistent with the
finding of residual functional capacity,” [R19]. [Doc. 11 at 13]. Plaintiff suggests that
the statement shows that the ALJ failed to consider the entire case record and
improperly determined Plaintiff’s ability to work before determining her credibility.
[Id. at 12-13].
Curiously, Plaintiff does not cite any Eleventh Circuit authority in support of the
argument. [See id.]. Nevertheless, even presuming that Plaintiff has offered a correct
statement of law as it is applied in this circuit, review of the ALJ’s decision shows that
he made no such error in this case.
It is true that where an ALJ decides not to credit a claimant’s testimony regarding
subjective allegations of disability, he must articulate explicit and adequate reasons for
doing so. Holt, 921 F.2d at 1223. And clearly, an administrative decision containing
the boilerplate statement that the claimant’s statements about her symptoms are “not
credible to the extent they are inconsistent with the finding of residual functional
capacity” merits close review to ensure that the claimant’s testimony has been
considered in determining the RFC and has not been treated merely an inconvenient
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afterthought. See Bjornson, 671 F.3d at 645 (discussing the “troubling” and repeated
use of the boilerplate paragraph to reject claimants’ testimony “without linking the
conclusory statement contained therein to evidence in the record” (internal quotation
marks omitted)); see also Dyer, 395 F.3d at 1211 (holding that a decision may not
simply be “a broad rejection” that does not allow the reviewing court to determine that
the ALJ considered the claimant’s medical condition as a whole).
Here, however, the ALJ did not simply issue a broad rejection of Plaintiff’s
testimony regarding the subjective effects of her symptoms, but instead, he considered
Plaintiff’s overall medical condition and placed on the record explicit reasons for
rejecting portions of her testimony and finding that her impairments were not severe
enough to be disabling. See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4) (providing that
in evaluating subjective complaints, the ALJ must “consider whether there are any
inconsistencies in the evidence and the extent to which there are any conflicts between
[the claimant’s] statements and the rest of the evidence”); SSR 96-7p (providing that
“the adjudicator must carefully consider the individual’s statements about symptoms
with the rest of the relevant evidence in the case record in reaching a conclusion about
the credibility of the individual’s statements if a disability determination or decision

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that is fully favorable to the individual cannot be made solely on the basis of objective
medical evidence”). [See R18-20].
As discussed above, the ALJ not only noted—correctly—that there were no
treatment notes of record supporting Plaintiff’s testimony at the hearing that she was
currently receiving mental-health treatment at Grady Hospital, but he also noted
inconsistencies between Plaintiff’s testimony and her out-of-court statements and
conduct, and he also remarked upon medical findings that called into question whether
the intensity, persistence, and limiting effects of Plaintiff’s impairments were as severe
as she alleged.

[R19-21].

Specifically, the ALJ noted that Plaintiff missed

appointments and withdrew from treatment with the DeKalb Community Services
Board in 2011 at a time when her depression was considered severe and her substance
abuse was considered moderate by the health care providers; medical records showed
that Plaintiff’s sleep and moods stabilized when she participated in regular mental
health treatment at DeKalb Community Services Board and complied with her
psychiatric medication regimen; the medical evidence of record did not clearly include
reports from Plaintiff that her psychiatric medication caused sleeping problems or other
side effects; Plaintiff’s report to Dr. Snook that she got along fairly well with coworkers
and supervisors and lost her last job because she was laid off conflicted with her
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testimony that she stopped working at her last job because of an interpersonal work
conflict and is unable to work, in part, because she finds it hard to be around people;
her claims of inability to concentrate were undermined by her statements to Dr. Snook
that she used a computer for social networking and visited web sites such as Facebook,
Monster.com, and MocoSpace and by Dr. Snook’s determination that her memory
recall was grossly intact, she was able to maintain adequate attention and concentration
to carry out simple tasks, and she was able to adhere to work schedules and meeting
production norms; and Plaintiff failed to supply details regarding her work history and
could not account for approximately $12,000 of self-employment income for tax year
2007 that is reflected on her earnings records and tax returns. [R19-21]. He also gave
credit to the assessment of Dr. Hollender, who opined that Plaintiff was “not impaired”
in the area of adaptive function and that although Plaintiff’s suspiciousness and
irritability caused her to be briefly inappropriate with others, he did not believe that any
of Plaintiff’s limitations were substantial, [R410]. [R20].
In light of this extensive discussion, the Court finds that the ALJ’s credibility
determination was not an impermissibly broad rejection of Plaintiff’s testimony, as
Plaintiff seems to suggest, but was instead a detailed, generally well-reasoned
explanation. See Dyer, 395 F.3d at 1210-11; Holt, 921 F.2d at 1223; SSR 96-7p.
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Consequently, the ALJ’s consideration of Plaintiff’s credibility provides no grounds for
reversal.
C.

VE Testimony

Plaintiff argues that because the ALJ erred in considering her credibility and in
crafting the RFC, the hypothetical question posed to the VE was necessarily incomplete
and therefore could not evoke substantial evidence to support the ALJ’s decision.
[Doc. 11 at 14]. Having determined that Plaintiff has failed to show that the ALJ
committed reversible error either in his consideration of Plaintiff’s credibility or in his
RFC determination, the Court likewise finds no basis for a determination that the
hypothetical question was lacking. Accordingly, Plaintiff’s challenge to the VE
testimony also provides no grounds for a finding of reversible error.
VIII. CONCLUSION
For the reasons above, the Court AFFIRMS the final decision of the
Commissioner.

The Clerk is DIRECTED to enter final judgment in the

Commissioner’s favor.
IT IS SO ORDERED and DIRECTED, this the 10th day of September, 2015.

AO 72A
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38