Smith v. Colvin
Filing
14
ORDER and OPINION Affirming the decision of the Commissioner. Clerk is DIRECTED to enter final judgment in the Commissioner's favor. Signed by Magistrate Judge Alan J. Baverman on 3/28/2016. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HOWARD SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
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CIVIL ACTION FILE NO.
1:14-cv-03139-AJB
O R D E R A N D O P I N I O N1
Plaintiff Howard Smith (“Plaintiff”) brought this action pursuant to
sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g),
1383(c)(3), to obtain judicial review of the final decision of the Commissioner of the
Social Security Administration (“the Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits
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 10/2/14 & 10/6/14). Therefore, this Order
constitutes a final Order of the Court.
AO 72A
(Rev.8/8
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(“SSI”) under the Social Security Act.2 For the reasons below, the undersigned
AFFIRMS the final decision of the Commissioner.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI in September 2010, alleging
disability commencing on April 1, 2007. [Record (hereinafter “R”) 134-50]. Plaintiff’s
applications were denied initially and on reconsideration. [R75-78]. Plaintiff then
requested a hearing before an Administrative Law Judge (“ALJ”). [R91-100]. An
evidentiary hearing was held on February 28, 2013. [R60, 126]. The ALJ issued a
decision on July 26, 2013, denying Plaintiff’s application on the ground that he had not
been under a “disability” from the alleged onset date through the date of the decision.
2
Title II of the Social Security Act provides for federal Disability Insurance
Benefits. 42 U.S.C. § 401 et seq. Title XVI of the Social Security Act,
42 U.S.C. § 1381, et seq., provides for Supplemental Security Income Benefits for the
disabled. 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)). 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 SSI cases, statutes, or regulations, they
are equally applicable to Plaintiff’s DIB claims, and vice versa.
2
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[R57-74]. Plaintiff sought review by the Appeals Council, and the Appeals Council
denied Plaintiff’s request for review on August 1, 2014, making the ALJ’s decision the
final decision of the Commissioner. [R3-8].
Plaintiff then filed suit in this Court on September 30, 2014, seeking review of
the Commissioner’s decision. [Doc. 1]. The answer and transcript were filed on
January 14, 2015. [Docs. 7, 8]. On March 23, 2015, Plaintiff filed a brief in support
of his petition for review of the Commissioner’s decision, [Doc. 12], and on
April 22, 2015, the Commissioner filed a response in support of the decision,
[Doc. 13].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. §§ 405(g) and 1383(c)(3).
II.
STATEMENT OF FACTS4
A.
Background
Having a date of birth of May 21, 1971, Plaintiff was thirty-five years old on the
alleged onset date and forty-two years old at the time of the ALJ’s decision.
3
Plaintiff did not file a reply brief, and neither party requested oral
argument. (See Dkt.).
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. 12, 13].
3
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[R14-15, 69, 134]. Plaintiff previously worked as a cook’s helper and as a carhop.
[R15, 17, 48, 69, 134, 180, 185]. Plaintiff alleged disability beginning in April 2007
because of depression, bipolar disorder, and asthma. [R179].
B.
Lay Testimony
In his hearing before the ALJ, Plaintiff testified that the last grade of school he
completed was either the ninth or the tenth grade. [R15]. He indicated that he knew
he was having mental health problems as a child, but both of his parents died when he
was young, and he did not have anyone to help him. [R18-19]. He stated that he had
lived on the street from 2007 until 2010, when he started receiving $225 a month in
general assistance and $200 in food stamps, and he presently lived in his friend’s
basement for $225 per month. [R16-19].
He indicated that he also began receiving mental-health treatment in 2010 and
was taking Wellbutrin5 and Seroquel.6 [R19, 31, 41-42]. He reported that he had also
5
Wellbutrin (bupropion) is an antidepressant that works by increasing
certain types of activity in the brain.
MedlinePlus, Bupropion,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a695033.html (last visited
3/27/16).
6
Seroquel (quetiapine) is used to treat the symptoms of schizophrenia,
mania, and depression.
MedlinePlus, Quetiapine,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a698019.html (last visited
3/27/16).
4
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tried trazodone7 but that he did not like it because it made him sleep too hard.
[R45-46]. He stated that the medication helped somewhat, but he still had a lot of
problems with concentrating and thinking, had difficulty sleeping at night, had violent
nightmares, worried a lot, and was scared of people. [R20, 33-34, 38]. He also
reported that his medication makes him sleepy and gives him headaches.
[R20, 30, 41-42]. Plaintiff also indicated that he had difficulty getting his doctors to
fill out his disability paperwork because he kept getting transferred to new physicians
and they told him they needed to get to know him first. [R37-38].
Plaintiff stated that any cooking he did was on a hotplate or in a microwave oven
and that he did not do any housework because it was not necessary. [R21-22]. He
stated that his friend would do his grocery shopping because Plaintiff would get short
of breath if he walked too far and because Plaintiff did not drive. [R23]. He testified
that he did not read, did not watch television, and kept the radio on but did not really
listen to it. [R31-33]. Later in the hearing, Plaintiff reported that he would sometimes
look at a magazine or try to read a book but could never finish a book. [R46-47].
7
Trazodone is a serotonin modulator used to treat depression. See
M e d l i n e P l u s ,
T r a z o d o n e ,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681038.html (last visited
3/27/16).
5
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Plaintiff stated that he had a diagnosis of major depression, cried three or four
days per week, sometimes all day, and thought about suicide “all the time.” [R33-36].
He also stated that he had homicidal thoughts every day, all day long; had attempted
suicide multiple times; had daily hallucinations about people following him; had a very
low energy level; was paranoid and nervous around people; did not get along with
people very well because he believed they were out to get him; stayed to himself; and
had racing thoughts. [R34-36]. Plaintiff also reported that he had tried group therapy
but could not stand being around a crowd of people. [R44]. He stated that he had been
hospitalized for a suicide attempt in 2005. [R49].
C.
Administrative Records
In an undated adult disability report, Plaintiff stated that he could not work
because he had depression, bipolar disorder, and asthma. [R179]. He reported that he
had completed the twelfth grade and did not attend special-education classes. [R180].
He stated that he had worked as a cook for four years until he stopped working in 2007.
[R179-80].
D.
Medical Records
Plaintiff started treatment at Grady Health System’s Central Fulton Community
Mental Health Center on January 3, 2010. [R318]. He reported that he was depressed
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and had poor concentration and insomnia, and he stated that he had never taken
medication. [R318, 321]. He denied hopelessness, helplessness, and guilt. [R321].
He also reported that he was unemployed and that his girlfriend was moving to
California. [R320]. It was noted that Plaintiff did not have suicidal ideation or
homicidal ideation and denied having made any suicide attempts or having any history
of psychiatric symptoms. [R315, 319, 321, 502]. Plaintiff was diagnosed with major
depression, moderate, recurrent; prescribed Celexa8 and trazodone; and assessed a
Global Assessment of Functioning (“GAF”) score of 50 to 60.9 [R311-12, 320].
Plaintiff underwent a behavioral health assessment on March 29, 2010. [R305].
His primary problem was noted to be depression, and it was also noted that Plaintiff
8
Celexa (citalopram) is a selective serotonin reuptake inhibitor (“SSRI”)
used to treat depression.
MedlinePlus, Citalopram,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a699001.html (last visited
3/27/16).
9
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. A GAF score between 51 and 60 indicates “[m]oderate
symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).” Id.
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reported auditory hallucinations of whispering, that it was suspected that he was
abusing alcohol, and that while he was observed to have tight associations, he was also
observed to have a depressed mood, flat affect, reduced energy level and sleep, and
disrupted sleep. [R305]. He denied suicidal and homicidal ideation. [R305]. He
reported that he had been out of medication for one and one-half months. [R305].
Plaintiff stated that he was unemployed and homeless, but not in a shelter, and that he
had been in school through the twelfth grade. [R305]. In the section of the form
reserved for describing coping approaches, the notes state: “go to sleep, walking, get
me a beer, sit in the park.” [R306]. In the section describing activities of daily living,
it was noted that Plaintiff ate at least two basically nutritious meals daily, participated
in relaxation activities, used other community services, and cared for his personal
cleanliness and appearance, and notes indicate that Plaintiff reported, “I stay to myself
and get a lot of exercise.” [R307]. Identified abilities included “literacy/basic math”
and “mobility within community,” and Plaintiff was also noted to receive enjoyment
and satisfaction from his ability to function in daily life, his ability to get around
physically, and his ability to do work or hobbies. [R308].
Plaintiff was treated at Grady on March 30, 2010, for depression. [R297]. He
reported that he was unemployed, homeless, and had no source of income. [R302]. He
8
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stated that he had been raised by his mother until she died when he was seventeen and
then he went to live with his father. [R300]. He indicated that he had graduated from
high school. [R300]. He reported that he had previously been treated with Celexa and
trazodone but that the trazodone was not effective. [R297]. He had not had medication
since late January. [R297]. He reported that he had low energy, sadness, sleep
problems, crying spells, racing thoughts, helplessness, and hopelessness, and he
reported that he had attempted suicide in 2005 by overdosing on pills. [R300]. He also
reported having auditory hallucinations. [R300]. He was noted to be attentive; oriented
to person, place, situation, and time; to be cooperative and logical; and to have a
euthymic mood,10 and he denied suicidal ideation. [R300]. He was unable to process
serial sevens but could spell “world” forward and backward. [R300]. Plaintiff was
diagnosed with major depression with psychotic features, restarted on Celexa and
trazodone, and assigned a GAF score of 50. [R298, 301-02, 355].
10
“Euthymic” relates to a moderate mood—“not manic or depressed.”
606 PDR Med. Dictionary (1st ed. 1995).
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Plaintiff again visited Grady on June 5, 2010. [R517]. It was noted that Plaintiff
was not suicidal or homicidal but that he was hallucinatory and his affect was restricted.
[R517]. He was given Celexa, Risperdal,11 and trazodone. [R517].
At a visit to Grady taking place on September 9, 2010, it was noted that Plaintiff
was not suicidal or homicidal but that he was hallucinating hearing a female voice.
[R513]. Plaintiff was diagnosed with major depression with psychotic features and
given medication. [R513].
Progress notes by Jochebed Ann Pink, M.D., dated January 5, 2011, indicate
diagnoses of, among other things, asthma, chronic obstructive pulmonary disease
(“COPD”), depression, and bipolar disorder. [R338]. Plaintiff was noted to be taking
Celexa, Risperdal, and trazodone for bipolar disorder/depression. [R338]. He reported
that he was unemployed, homeless, and slept for only two or three hours per night.
[R338]. He denied suicidal or homicidal thoughts. [R338]. He was followed in the
asthma clinic and used an albuterol inhaler daily. [R339].
11
Risperdal is a brand name for risperidone, one of a class of medications
known as atypical antipsychotics. It is typically prescribed to treat symptoms of
schizophrenia and bipolar disorder and to treat behavior problems, such as aggression,
self-injury, and sudden mood changes.
Risperidone, MedlinePlus,
http:/www.nlm.nih.gov/medlineplus/druginfo/meds/a694015.html (last visited 3/27/16).
10
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At a visit to Grady taking place on March 10, 2011, Plaintiff stated that he was
not suicidal or homicidal, but he stated that he was having intermittent hallucinations.
[R1048]. He was assessed with major depressive disorder with psychotic features, and
cluster B traits12 were suspected. [R1048]. Plaintiff’s dose of Risperdal was increased,
he was continued on Celexa and trazodone, and he was referred to anger management
group therapy. [R1048].
Plaintiff presented for a psychological evaluation with John S. Muller, Ph.D., on
April 26, 2011. [R389-94]. Plaintiff stated that he had suffered from emotional
problems all his life but that he began treatment only about three or four years prior.
[R391]. Plaintiff reported hospitalization in 2007 after a suicide attempt by overdose,
and another three or four hospitalizations after that at Grady Hospital and one at Atlanta
Medical Center. [R391, 393]. He stated that on the one occasion he had actually
attempted suicide and the other times, he simply was to the point of planning his
suicide. [R391]. He said that his medications “helped some” but that he remained sad
more days than not, continued to contemplate suicide, and could not sleep without
12
In the Diagnostic and Statistical Manual of Mental Disorders, personality
disorders are grouped into three clusters based on descriptive similarities. Diagnostic
and Statistical Manual of Mental Disorders 646 (5th ed. 2013). “Cluster B” includes
antisocial, borderline, histrionic, and narcissistic personality disorders. Id. “Individuals
with these disorders often appear dramatic, emotional, or erratic.” Id.
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medication. [R391]. He stated, however, that he did not have current suicidal ideas.
[R393]. He also claimed to hear a voice of indeterminate sex tell him to harm himself
and others, and he stated that medication did not help to decrease his hallucinations.
[R393].
Plaintiff indicated that two weeks earlier he had begun living with a male
roommate in an apartment. [R391]. He stated that he had no income aside from food
stamps and an occasional general-assistance payment. [R391]. He reported that he had
never had a driver’s license, had never driven, and was able to use public
transportation. [R391-92]. Plaintiff reported that he had dropped out of school in the
ninth grade when his father died and that he remembered being in the “slow classes.”
[R392]. He reported that his sleep was good, but only when he took trazodone, and
even then, he still had episodes of early awakening. [R392]. He also stated that he was
a trained chef, although he no longer made the complex meals he once enjoyed.
[R392]. He indicated that he was a church member and went to services regularly but
was not otherwise interested in going out in public, stating that he was not interested
in dating and that he tried to send a friend to do his shopping. [R392]. Dr. Muller
observed that although Plaintiff tended to be vague at times, “there was no indication
that he was intentionally distorting the facts of his case. [R392].
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Dr. Muller found that Plaintiff’s affect was restricted in range, and although he
smiled briefly, he came across as indifferent, sad, and helpless. [R393]. Plaintiff
performed serial threes by two positions correctly, using his fingers to do so. [R393].
He could not spell “world” forward, but he could spell “cat” backward and forward.
[R393]. Dr. Muller opined that Plaintiff’s cognitive functions were impaired for
measure of immediate memory, and although the state agency did not request
intellectual testing, he estimated Plaintiff to be within the borderline range of
intelligence based on the quality of his speech and vocational history. [R393].
Dr. Muller diagnosed major depressive disorder, recurrent, severe with psychosis
(in fair remission). [R393]. He wrote that Plaintiff had been experiencing significant
depression over the last four or five years; that during this time, he had four inpatient
psychiatric hospitalizations, all for either suicide attempts or contemplation of such; and
his last hospitalization had been two years prior to the examination.
[R393].
Dr. Muller also wrote that Plaintiff had become emotionally withdrawn from others and
spoke of indifference in having emotional contact with others but that he did not appear
to have any paranoia or anxiety related to his social interaction. [R393-94]. He also
opined that Plaintiff “could probably get along with people who were understanding
and compassionate of his emotional situation”; that he would have no trouble with
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understanding or carrying out simple instructions; that despite some limitations in
concentration, he could focus long enough to complete his basic activities of daily
living and enjoy listening to talk shows; and that if he were found eligible for Social
Security benefits, he would be able to manage the funds in his own best interest.
[R394].
In a Psychiatric Review Technique form dated May 29, 2011, non-examining
state agency review physician Fran Shahar, Ph.D. opined that Plaintiff had moderate
limitations in his abilities to: 1) carry out detailed instructions; 2) maintain attention and
concentration for extended periods; 3) perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances; 4) complete a normal
workday and workweek without interruptions from psychologically based symptoms
and to perform at a consistent pace without an unreasonable number and length of rest
periods; 5) interact appropriately with the general public; 6) accept instructions and
respond appropriately to criticisms from supervisors; 7) get along with coworkers or
peers without distracting them or exhibiting behavioral extremes; 8) maintain socially
appropriate behavior and adhere to basic standards of neatness and cleanliness;
and 9) respond appropriately to changes in the work setting. [R395-96]. Dr. Shahar
further opined that Plaintiff could perform and recall simple instructions; despite his
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likelihood of having difficulties with concentration, persistence, and pace, he had the
ability to perform simple, repetitive tasks for two-hour periods; he may have some
difficulty adhering to a work schedule and maintaining a routine; he was at a moderate
risk of decompensating under ordinary work stress; and he was likely to have difficulty
with frequent or major workplace changes but not with lesser ones. [R397]. As for
social limitations, Dr. Shahar opined that Plaintiff might have difficulty interacting with
the public, coworkers, and supervisors, but generally could interact appropriately in the
workplace. [R397]. In a mental Residual Functional Capacity (“RFC”) form,
Dr. Shahar found moderate difficulties in maintaining social functioning and moderate
difficulties in maintaining concentration, persistence, or pace. [R409].
At a visit to Grady taking place on June 7, 2011, Plaintiff denied having any
thoughts of hurting himself or others. [R435]. At a visit to Grady on June 14, 2011,
Plaintiff reported that he had homicidal thoughts about a month ago. [R1043]. He was
noted to be in a euthymic mood, and notes indicate that his affect was not typical of any
particular psychotic illness. [R1043]. At a visit taking place on August 30, 2011, he
reported having suicidal thoughts. [R1033]. On November 22, 2011, he was noted to
have some suicidal or homicidal thoughts but no plan or intent. [R1034].
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On December 8, 2011, reviewing physician Abraham Oyewo, M.D., completed
a physical RFC. [R551-58]. He opined that Plaintiff had no exertional or other
physical limitations other than the need to avoid concentrated exposure to fumes, odors,
dusts, gases, poor ventilation, and the like. [R552-55]. He noted that Plaintiff was
obese and that he alleged pain limiting his ability to lift, squat, stand, reach, walk, and
kneel, but he found the alleged severity to be inconsistent with the objective evidence
and therefore concluded that Plaintiff’s statements were only partially credible. [R556].
In a Psychiatric Review Technique form dated December 9, 2011,
non-examining state agency review physician Anna J. Williams, Ph.D., opined that
Plaintiff met the A criteria of Listing 12.04. [R562]. Specifically, she indicated that
Plaintiff had disturbance of mood, accompanied by a full or partial manic or depressive
syndrome, as evidenced by depressive syndrome characterized by: anhedonia or
pervasive loss of interest in almost all activities; sleep disturbance; difficulty
concentrating or thinking; and hallucinations, delusions, or paranoid thinking. [R562].
Dr. Williams further opined Plaintiff had moderate restriction of activities of daily
living; moderate difficulties in maintaining social functioning; and moderate difficulties
in maintaining concentration, persistence or pace. [R569].
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In a mental RFC assessment, Dr. Williams opined that Plaintiff has marked
limitations in the abilities to: 1) understand and remember detailed instructions; 2) carry
out detailed instructions; and 3) interact appropriately with the general public.
[R573-74]. Dr. Williams also opined that Plaintiff had moderate limitations in the
abilities to 1) maintain attention and concentration for extended periods; 2) perform
activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; 3) sustain an ordinary routine without special supervision;
4) complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; 5) maintain socially appropriate
behavior and adhere to basic standards of neatness and cleanliness; 6) respond
appropriately to changes in the work setting; and 7) set realistic goals or make plans
independently of others. [R573-74]. Dr. Williams elaborated on her assessment,
stating that Plaintiff could concentrate for at least two hours at a time and could follow
and perform simple instructions; that although Plaintiff had marked limitations in direct
work with the public, he could relate and go out in public and be cooperative; that
although he would have initial moderate limitations in work changes and setting
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independent goals, he would adapt with practice and familiarity; and that he had no
substantial psychological limitations at that time. [R575].
Plaintiff returned to Grady on February 16, 2012. [R633]. His mood was noted
to be euthymic and he reported having intermittent hallucinations. [R633]. He was
diagnosed with major depressive disorder and psychosis and given refills for Celexa,
Risperdal, and trazodone. [R633].
In a medical source statement dated April 10, 2012, J. Wooten, M.D., of the
Fulton County Department of Family and Children Services, wrote that she had
examined Plaintiff on February 16, 2012, and was treating Plaintiff for major
depression with psychotic features and for chronic auditory hallucinations. [R640].
She stated that Plaintiff was on a high dose of anti-psychotic medication and continued
to have auditory hallucinations and that his prognosis was “guarded.” [R640]. The
same date, Jochebed Ann Pink, M.D., wrote that in addition to being followed in the
psychiatric clinic for bipolar disorder and depression with psychotic features, Plaintiff
was also being treated for high blood pressure, asthma, diastolic heart failure, and
morbid obesity. [R641].
At a visit to Grady taking place on May 11, 2012, Plaintiff was noted not to be
suicidal or homicidal, but he reported having attempted suicide approximately ten years
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prior by taking a handful of pills. [R631]. He was observed to have a depressed and
anxious mood. [R631]. He was assessed with manic psychosis and prescribed
Seroquel, Celexa, and Wellbutrin. [R631].
At a visit to Grady on August 3, 2012, Plaintiff was treated by Jennifer Snowden,
M.D. [R1037]. He reported suicidal thoughts but no intent or plan. [R1037]. It was
noted that Plaintiff’s mood was irritable and that he had poor judgment and insight, but
that despite his complaints, Plaintiff’s affect was “fairly bright” and he laughed at
times. [R1028, 1037]. It was noted that Plaintiff demanded that Dr. Snowden fill out
disability paperwork and that he was “fixated” on having the paperwork completed.
[R1028, 1037]. He was diagnosed with major depressive disorder by history, partial
malingering, and cluster B traits, and he was continued on medication. [R1037].
At a visit with Dr. Snowden taking place on October 15, 2012, Plaintiff was
noted to be irritable. [R1038]. He was diagnosed with major depressive disorder by
history, partial malingering, and cluster B traits, and continued on Wellbutrin, Celexa,
and Seroquel. [R1038]. Dr. Snowden noted that Plaintiff was generally stable on
medication and stated that she remained suspicious for malingering of hallucinations
and violent and suicidal thoughts because his affect was “bright,” he appeared to be in
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a good mood, and he spent the majority of his appointment complaining about not
getting his Social Security paperwork filled out. [R1027, 1039].
At a visit to Grady taking place on January 9, 2013, it was noted that when asked
whether he had thoughts of hurting himself or others, Plaintiff said no. [R883, 923].
In a letter dated February 18, 2013, Dr. Snowden wrote that Plaintiff was
currently a patient under her care at the Grady Outpatient Behavioral Health Clinic; that
he had been diagnosed with major depressive disorder with psychotic features; and that
his medications were Benadryl 50 mg at bedtime, Seroquel 400 mg at bedtime,
Celexa 40 mg daily, and Wellbutrin SR 150 mg twice daily. [R638].
Plaintiff continued with regular treatment at Grady Memorial Hospital. On
June 17, 2013 he was noted to be “profoundly depressed” with strong passive and weak
active suicidal ideation and auditory hallucinations. [R1086]. The medical provider
opined that Plaintiff had decompensated due to several new psychological stressors.
[R1086]. Plaintiff was admitted to the hospital with suicidal ideation, hallucinations,
and depression. [R1113].
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E.
Vocational-Expert Testimony
The ALJ asked the vocational expert (“VE”) about the working capabilities of
a person of Plaintiff’s age, education, and work experience who was capable of light
work; could not climb ropes, ladders, or scaffolds; could not perform work requiring
fine vision, such as threading a needle or reading fine print; must avoid concentrated
exposure to pulmonary irritants and hazards; would be limited to simple tasks, defined
as “working at skill levels 1 or 2”; would be limited to low-stress jobs, defined as few
changes in the work place and occasional simple decisionmaking; and would be limited
to occasional superficial contacts with the general public. [R50]. The VE testified that
the person could not perform Plaintiff’s past work as a carhop or a cook’s helper.
[R50-51]. The VE also testified, however, that the person could work as a garment
bagger, laundry folder, or bakery work racker. [R51].
III.
ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2012.
2.
The claimant has not engaged in substantial gainful activity since
April 1, 2007, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
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3.
The claimant has the following severe impairments: major
depressive disorder, cluster B traits, asthma, hypertension, recent
(post hearing) diagnosis of stage 2 diastolic dysfunction,[13]
refractive amblyopia,[14] and obesity (20 CFR 404.1520(c) and
416.920(c)).
...
4.
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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
...
5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant cannot climb ropes, ladders or
scaffolding. He must avoid concentrated exposure to pulmonary
13
“Diastolic dysfunction” refers to an abnormality in how the heart fills with
blood during the first part of the two parts of a heartbeat. Texas Heart Institute,
Diastolic Dysfunction, http://www.texasheart.org/HIC/Topics/Cond/ddisfunc.cfm (last
visited 3/27/16).
14
“Amblyopia” is decreased vision in one or both eyes due to abnormal
development of vision in infancy or childhood. Refractive ambylopia happens when
there is a large or unequal amount of refractive error between a child’s eyes. The brain
learns to see well from the eye that has less need for correction and does not learn to
see well from the other. Glasses may improve acuity but usually not completely. Am.
Assoc. for Pediatric Ophthalmology & Strabismus, Amblyopia,
http://www.aapos.org/terms/conditions/21 (last visited 3/27/16).
22
AO 72A
(Rev.8/8
2)
irritants and hazards. He cannot perform jobs requiring fine vision
such as threading a needle or reading fine print. He can perform
simple (skill levels 1-2), low stress (few changes in workplace and
occasional simple decisionmaking) jobs only, and can have only
occasional superficial contacts with the general public.
...
6.
The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
...
7.
The claimant was born on May 21, 1971 and was 35 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not an issue in this case because the
claimant’s past relevant work is unskilled (20 CFR 404.1568 and
416.968).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
...
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from April 1, 2007, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
23
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2)
[R60-69].
In support of his determination as to the mental RFC, the only portion of the RFC
Plaintiff challenges here, the ALJ explained that he found Plaintiff’s claims
questionable because his testimony to a very limited lifestyle with little mental capacity
and exertion was not in keeping with the findings reported by his treating physicians:
although he testified to having mental issues his whole life, he made no complaints
about any mental illnesses from 2007 to 2009, and when he was first diagnosed with
major depressive disorder in January 2010, he said he had been depressed for only three
months and denied any visual or auditory hallucinations; Dr. Snowden indicated that
Plaintiff’s hallucination allegations and his vague suicidal/homicidal ideation suggested
partial malingering; in February 2012, Plaintiff admitted that he did not find the
auditory hallucinations distressing; notes indicating Plaintiff had a “bright” affect belie
his allegation that he is depressed all the time; records do not support his claims of
crying three to four times per week, sometimes all day; notes indicating a lack of
suicidal/homicidal ideation belie his testimony that he has suicidal ideation all the time
and that those ideas never leave his mind; and despite his testimony and other claims
of having been hospitalized for suicidal attempts, there is no corroborating evidence in
the record and there is evidence that at least once he denied previous psychological
24
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2)
hospitalization. [R66-67]. The ALJ also explained that he assigned treating-physician
Dr. Snowden’s opinion of partial malingering full weight; he assigned consulting
examiner Dr. Muller’s assessments and opinions less weight because of the cited
credibility concerns as well as unsupported allegations of multiple suicide attempts; and
he gave the opinions of state agency psychological consultants Dr. Shahar and
Dr. Williams great weight because they were consistent with the other evidence in the
record and were not contradicted. [R67]. Finally, the ALJ explained that because he
found Plaintiff to be unable to perform his past work, he relied on the VE’s testimony
that a person of Plaintiff’s age, education, and RFC was capable of working as a
garment bagger, laundry folder, or bakery worker, and he therefore found Plaintiff
capable of work existing in significant numbers in the national economy. [R68-69].
IV.
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
25
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2)
which are demonstrable by medically accepted clinical or laboratory diagnostic
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
26
AO 72A
(Rev.8/8
2)
Impairments), the claimant will be considered disabled without consideration of age,
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),
27
AO 72A
(Rev.8/8
2)
superseded 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).
V.
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.3d 1436, 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).
28
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(Rev.8/8
2)
“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 decision will not be overturned where “there is
substantially supportive evidence” of the ALJ’s decision.
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.
VI.
CLAIMS OF ERROR
Plaintiff contends that the ALJ erred by failing to properly evaluate Plaintiff’s
mental limitations and credibility, which then tainted the RFC and rendered the VE’s
testimony incapable of serving as substantial evidence of non-disability. [Doc. 12].
29
AO 72A
(Rev.8/8
2)
The Commissioner, in response, argues that the ALJ applied the proper legal standards
and that his decision is supported by substantial evidence. [Doc. 13].
A.
Mental Limitations
As noted above, the ALJ found that Plaintiff retained the RFC to perform a range
of light work limited to “simple (skill levels 1-2), low-stress (few changes in workplace
and occasional simple decisionmaking) jobs only” and “only occasional superficial
contacts with the general public.” [R64]. Plaintiff first argues that the ALJ erred by
failing to properly account for certain medical opinions. [Doc. 12 at 9]. Second,
Plaintiff contends that evidence in the record suggests cognitive impairments and that
the ALJ erred by failing to fill the gap with a consultative examination or expressly
consider whether Plaintiff met Listing 12.05 (intellectual disability). [Id. at 10-11].
Third, Plaintiff avers that the RFC does not adequately address his finding that Plaintiff
had “moderate” difficulties in maintaining concentration, persistence, or pace.
[Id. at 11].
1.
Medical Opinions
Plaintiff argues first that the mental RFC is incomplete because the ALJ failed
to properly account for the opinions of Dr. Muller, Dr. Williams, Dr. Shahar, and
Dr. Oyewo. [Doc. 12 at 9]. He points out that Dr. Muller is a consultative examiner
30
AO 72A
(Rev.8/8
2)
who opined that Plaintiff “could probably get along with people who were
understanding and compassionate of his emotional situation” and that “[h]is
concentration appears to be limited,” [R394]; that Dr. Williams was a nonexamining
state agency review physician who opined that Plaintiff has marked limitations in the
abilities to understand and remember detailed instructions, carry out detailed
instructions, and interact appropriately with the general public, [R573-74]; that
Dr. Shahar wrote that Plaintiff is at moderate risk of decompensating under ordinary
workplace stress, [R397]; and Dr. Oyewo completed a physical RFC, [R551-58].
[Doc. 12 at 9].
The Court finds no basis for reversal in Plaintiff’s arguments. Plaintiff points
out—correctly—that an individual can perform unskilled, competitive employment
when he is able to, on a sustained basis,15 (1) understand, carry out, and remember
simple instructions, (2) respond appropriately to supervision, coworkers, and usual
work situations, and (3) deal with changes in a routine work setting, and that a
substantial loss of ability to meet any of these basic work-related activities would
15
According to the Agency, an RFC is an assessment of an individual’s
ability to do sustained work-related physical and mental activities in a work setting for
“8 hours a day, for 5 days a week, or an equivalent work schedule.” Social Security
Ruling (“SSR”) 96-8p.
31
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2)
severely limit the potential occupational base and therefore may justify a finding of
disability. [Doc. 12 at 8 (citing SSR 85-1516)]. He also correctly points out that any
impairment-related mental limitations created by the claimant’s response to demands
of work must be reflected in the RFC assessment, [Doc. 12 at 8 (citing SSR 85-15)],
and that in order to determine that the ALJ’s decision was supported by substantial
evidence, it must be clear that the ALJ took into account evidence both favorable and
unfavorable to his opinion, [Doc. 12 at 8 (citing McCruter v. Bowen,
791 F.2d 1544, 1548 (11th Cir. 1986); Williams v. Colvin, No. 1:12-cv-4276-WSD,
2014 WL 476571, at *21 (N.D. Ga. 2014) (Duffey, J., adopting Baverman, M.J.))].
16
Social Security Rulings are published under the authority of the
Commissioner of Social Security and are binding on all components of the
administrative process. See Sullivan v. Zebley, 493 U.S. 521, 530 n.9 (1990); see also
Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1377 n.6 (N.D. Ga. 2006) (Story, J.) (citing
20 C.F.R. § 402.35(b)(1)). Although SSRs do not have the force of law, they are
entitled to deference so long as they are consistent with the Social Security Act and
regulations. Massachi v. Astrue, 486 F.3d 1149, 1152 n.6 (9th Cir. 2007); see also
Salamalekis v. Comm’r of Soc. Sec., 221 F.3d 828, 832 (6th Cir. 2000) (“If a Social
Security Ruling presents a reasonable construction of an ambiguous provision of the
Act or the agency’s regulations, we usually defer to the SSR.”); Minnesota v. Apfel,
151 F.3d 742, 748 (8th Cir. 1998) (“Social Security Rulings, although entitled to
deference, are not binding or conclusive.”); Pass v. Chater, 65 F.3d 1200, 1204 n.3
(4th Cir. 1995); Gordon v. Shalala, 55 F.3d 101, 105 (2d Cir. 1995); Andrade v. Sec’y
of Health and Human Servs., 985 F.2d 1045, 1051 (10th Cir. 1993).
32
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(Rev.8/8
2)
Be that as it may, the Court finds that the ALJ properly addressed each of the
opinions Plaintiff challenges here. The Commissioner evaluates every medical opinion
the agency receives, regardless of the source. 20 C.F.R. §§ 404.1527(c), 416.927(c);
cf. 20 C.F.R. §§ 404.1527(b), 416.927(b) (“In determining whether you are disabled,
we will always consider the medical opinions in your case record together with the rest
of the relevant evidence we receive.”); SSR 06-03p, 2006 WL 2329939 at *4 (“[T]he
[Social Security] Act requires us to consider all of the available evidence in the
individual’s case record in every case.”). Thus, both examining and nonexamining
sources provide opinion evidence for the ALJ to consider in rendering a decision.
20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). In determining the weight of medical
opinions, the ALJ must consider: (1) the examining relationship; (2) the treatment
relationship; (3) evidence supporting the conclusions; (4) the consistency of the opinion
with the record as a whole; (5) the medical expert’s area of specialty; and (6) other
factors, including the amount of understanding of disability programs and the
familiarity of the medical source with information in the claimant’s case record.
20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6). In assessing the medical evidence,
the ALJ is “required to state with particularity the weight [given] to the different
33
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(Rev.8/8
2)
medical opinions and the reasons therefor.” Sharfarz v. Bowen, 825 F.2d 278, 279
(11th Cir. 1987).
The opinion of a treating physician must be given substantial or considerable
weight unless “good cause” is shown to the contrary.17
Phillips v. Barnhart,
357 F.3d 1232, 1241 (11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997)); accord Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79
(11th Cir. 2011). A one-time examining (i.e., consulting) physician’s opinion is not
entitled to great weight. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160
(11th Cir. 2004) (per curiam). However, the opinion of an examining physician is
generally entitled to more weight than the opinion of a nonexamining physician.
Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985). Also, in the Eleventh
Circuit, “the report of a non-examining doctor is accorded little weight if it contradicts
an examining doctor’s report; such a report, standing alone, cannot constitute
substantial evidence.” Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991); see also
Kemp v. Astrue, 308 Fed. Appx. 423, 427 (11th Cir. Jan. 26, 2009) (per curiam).
17
Good cause exists when: (1) the treating physician’s opinion was not
bolstered by the evidence; (2) the evidence supported a contrary finding; or (3) the
treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records. Phillips, 357 F.3d at 1241.
34
AO 72A
(Rev.8/8
2)
However, “the opinion of a non-examining physician who has reviewed medical
records may be substantial evidence if it is consistent with the well-supported opinions
of examining physicians or other medical evidence in the record.” Hogan v. Astrue,
Civ. Action No. 2:11cv237-CSC, 2012 WL 3155570, at *5 (M.D. Ala. Aug. 3, 2012)
(harmonizing Eleventh Circuit cases). In any event, “the ALJ is free to reject the
opinion of any physician when the evidence supports a contrary conclusion.” Sryock
v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (quotation marks omitted).
Dr. Muller did opine that Plaintiff “could probably get along with people who
were understanding and compassionate of his emotional situation.” [R394]. He also
stated that Plaintiff’s concentration appeared to be limited but that he was “able to focus
long enough to complete his basic activities of daily living as well as enjoy listening
to talk shows.” [R394]. Taken alone, the opinion would appear to suggest that the
RFC should be fashioned to include some limitation as to Plaintiff’s ability to get along
with all other people and his ability to maintain concentration sufficient for
employment in a competitive setting.
The ALJ explained, however, that he assigned Dr. Muller’s opinion less weight
because of the ALJ’s concerns about Plaintiff’s credibility, which were based, at least
in part, on treating-physician Dr. Snowden’s diagnosis of partial malingering, which
35
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2)
was later in time and therefore not available to Dr. Muller, [R67, 394, 1027-28,
1037-39], and on Dr. Muller’s reliance on Plaintiff’s uncorroborated reports of multiple
psychiatric hospitalizations for suicide attempts.18 [R67, 393]. The ALJ also observed
that Plaintiff was noted to be generally stable with a bright affect and good mood when
medicated, [R65, 1028, 1030-31, 1033-35, 1039], and that medical records from March
2010 indicate that Plaintiff reported an ability to function in daily life and get around
physically as well as an ability to do work or hobbies. [R64, 308]. Additionally, the
ALJ assigned substantial weight to the opinion of Dr. Shahar, who found that Plaintiff
generally has the ability to interact appropriately in the workplace and has the ability
to maintain concentration, attention, persistence, and pace for simple, repetitive tasks
for two-hour periods, [R397], and the opinion of Dr. Williams, who found that Plaintiff
is able to related, go out in public, be cooperative, and go to public activities despite his
social discomfort and can maintain concentration, persistence, and pace sufficient to
allow him to follow and execute simple instructions and make basic work decisions for
at least two hours at a time, [R575]. [R67]. Moreover, Dr. Muller was a one-time
18
It also bears noting that Dr. Muller noted that Plaintiff “tended to be vague
at times” and found that “there was no indication that he was intentionally distorting
the facts of his case,” but makes no reference to a review of records. [R389-94].
Indeed, Dr. Muller’s opinion to rely entirely on Plaintiff’s conduct during the
examination and Plaintiff’s own report of his history and symptoms. [Id.].
36
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(Rev.8/8
2)
examiner, and the ALJ was therefore under no obligation to defer to his opinion. See
Eyre v. Comm’r, Soc. Sec. Admin., 586 Fed. Appx. 521, 523 (11th Cir. Sept. 30, 2014)
(citing McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987), and affirming the ALJ’s
decision to give “no weight” to the opinion of an examining physician whose opinion
was not consistent with the record as a whole). For these reasons, the undersigned finds
that substantial evidence supports the ALJ’s decision not to fashion the RFC to
Dr. Muller’s opinion but instead to rely on the less-restrictive limitations set forth in the
opinions of Dr. Shahar and Dr. Williams.
The Court also finds that the ALJ properly considered the portions of Dr. Shahar
and Dr. Williams’s opinions that Plaintiff raises in his brief. To accommodate
Dr. Williams’s opinion that Plaintiff has marked limitations in the abilities to
understand and remember detailed instructions, carry out detailed instructions, and
interact appropriately with the general public, [R573-74], the ALJ limited Plaintiff to
simple work (skill levels 1 to 2) with only occasional superficial contact with the
general public, [R64], and to accommodate Dr. Shahar’s opinion that Plaintiff is at
moderate risk of decompensating under ordinary workplace stress, [R397], the ALJ
limited him to low-stress work, defined as “few changes in the workplace and
occasional simple decisionmaking,” [R64]. Plaintiff does not present any argument or
37
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2)
authority to suggest that the accommodations were insufficient to address the opinions.
[See Doc. 12 at 9]. Thus, the Court finds no reversible error arising from the ALJ’s
consideration of Dr. Williams’s opinion that Plaintiff has marked limitations in the
abilities to understand and remember detailed instructions, carry out detailed
instructions, and interact appropriately with the general public, [R573-74], or his
consideration of Dr. Shahar’s opinion that Plaintiff is at moderate risk of
decompensating under ordinary workplace stress, [R397]. See Sanchez v. Comm’r of
Soc. Sec., 507 Fed. Appx. 855, 856 n.1 (11th Cir. Feb. 8, 2013) (per curiam) (holding
that claimant waived certain arguments by not expressly challenging the ALJ’s
findings).
As to the ALJ’s consideration of the opinion of Dr. Oyewo, the Court is at a loss
to understand what Plaintiff’s challenge might be. Plaintiff’s alleges error only as to
the ALJ’s determination of his mental RFC. [Doc. 12, passim]. As Plaintiff points out,
Dr. Oyewo completed a physical RFC, [Doc. 12 at 9 [citing R551-58]], and the Court’s
review of the ALJ’s decision reveals that the ALJ gave substantial weight to
Dr. Oyewo’s opinion that Plaintiff had no physical limitations. [R66-67]. Moreover,
Plaintiff does not state a reason for his apparent belief that the ALJ mishandled the
opinion of Dr. Oyewo. [See Doc. 12 at 9]. Therefore, the issue is not properly before
38
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(Rev.8/8
2)
the
Court.
See
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 the argument or provide a citation to authority regarding the
argument); Ward v. United States, 154 F.R.D. 291, 293 (M.D. Fla. 1994) (court refuses
to supply argument for party).
For all of these reasons, the undersigned concludes that Plaintiff has not shown
reversible error with regard to the ALJ’s consideration of any of the challenged medical
opinions. [See Doc. 12 at 9].
2.
Cognitive Impairments
Plaintiff next argues that the ALJ did not adequately address the cognitive
impairments evidenced by Plaintiff’s ninth-grade education and the cognitive
limitations revealed on Dr. Muller’s examination. [Doc. 12 at 10]. He points out that
the ALJ has a duty to fully and fairly develop the record, [id. (citing Graham v. Apfel,
129 F.3d 1420, 1422 (11th Cir. 1997); Todd v. Heckler, 736 F.2d 641, 642
(11th Cir. 1984))]; contends that there are gaps in the record such that the ALJ should
have ordered a consultative examination in order to enable him to make the disability
decision, [Doc. 12 at 10 (citing Pierre v. Sullivan, 884 F.2d 799, 802 (5th Cir. 1989);
39
AO 72A
(Rev.8/8
2)
Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977)19)]; and argues that the absence
of a cognitive evaluation prejudiced Plaintiff by depriving him of a full and fair hearing
at step three relating to Listing 12.05 (intellectual disability) or evaluation of the RFC,
[Doc. 12 at 10].
The Commissioner, in response, presumes that Plaintiff in fact had only a
ninth-grade education, despite reports in the record spanning from ninth to twelfth
grade. [Compare Doc. 13 at 1 with R15 (9th or 10th), 180 (12th) , 223 (12th), 331 (10th),
392 (9th)]. She argues, however, that the ALJ did not err by failing to order cognitive
testing or to discuss Listing 12.05 because he was under no obligation to investigate a
claim that was not raised at the administrative level, [Doc. 13 at 10 (citing Street v.
Barnhart, 133 Fed. Appx. 621, 627 (11th Cir. May 18, 2005))]; the ALJ fully considered
Dr. Muller’s examination and the other evidence of Plaintiff’s mental condition,
[Doc. 13 at 11 [citing R64-67]]; the ALJ considered and accounted for Plaintiff’s
educational level in assessing his ability to work, [Doc. 13 at 11 [citing R68]]; and
Dr. Muller, without testing, estimated Plaintiff’s intelligence to be in the borderline
19
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the
former Fifth Circuit handed down prior to the close of business on September 30, 1981.
40
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(Rev.8/8
2)
range, [R393], which would not qualify under 12.05, [Doc. 13 at 11 (citing Jordan
Comm’r of Soc. Sec. Admin., 470 Fed. Appx. 766, 768-69 (11th Cir. Apr. 20, 2012))].
The Court finds no basis for reversal in Plaintiff’s arguments regarding the ALJ’s
consideration of his cognitive ability. First, the Court finds Plaintiff’s procedurally
deficient. In its scheduling order, the Court expressly stated to Plaintiff that if he
sought remand for the purpose of taking evidence in the form of a consultative
examination at government expense, he “must make a proffer of the nature of the
evidence anticipated to be obtained.” [Doc. 10 at 3]. Plaintiff has made no such
proffer. [See Doc. 12, passim].
Second, while the ALJ does have a duty to develop the record fully and fairly,
he is under no obligation to investigate a claim not presented at the time of the
application or offered at the hearing as a basis for disability, particularly where, as here,
the claimant was represented by an attorney. Street, 133 Fed. Appx. at 627. Here,
Plaintiff does not point to any portion of the record showing that he claimed intellectual
disability at any time at the administrative level, [Doc. 12 at 10], and the Court’s review
of the record has revealed none. Thus, the Court finds that Plaintiff’s failure to raise
the claim at the administrative level is also grounds for rejection of the allegation of
error. See Street, 133 Fed. Appx. at 627 (“This failure alone could dispose of his claim,
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as it has been persuasively held that an ‘administrative law judge is under no
“obligation to investigate a claim not presented at the time of the application for
benefits and not offered at the hearing as a basis for disability.” ’ Pena v. Chater,
76 F.3d 906, 909 (8th Cir.1996).”).
Third, the legal authority Plaintiff cites also suggests that the ALJ did not make
a reversible error in declining to order cognitive testing. [See Doc. 12 at 10 (citing
Pierre v. Sullivan, 884 F.2d at 802)]. In fact, in Pierre, the Fifth Circuit held that the
ALJ was not required to order cognitive testing in order to discharge his duty to fully
and fairly develop the record. Pierre, 884 F.2d at 803. The court began by explaining
that “the ALJ’s duty to undertake a full inquiry . . . ‘does not require a consultative
examination at government expense unless the record establishes that such an
examination is necessary to enable the administrative law judge to make the disability
decision,’ ” id. at 802 (quoting Turner, 563 F.2d at 671), and that the decision to require
such an examination is within the discretion of the ALJ, Pierre, 884 F.2d at 802. The
court then went on to discuss a record remarkably similar to the record presently before
the Court: like Plaintiff, the claimant had not listed intellectual disability in her request
for benefits; she had never requested that an intelligence test be performed; and no
doctors suggested that her intelligence be tested; yet, as in Plaintiff’s case, there were
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also several isolated comments about the limits of the claimant’s intellectual
functioning. Id. (citing notes suggesting an inability to read and write (a deficiency
greater than those reflected in the record presently before the Court); difficulty with the
day of the week; and inability to identify the President of the United States). The court
noted, however, that other parts of the medical reports suggested that the claimant’s
medical abilities were normal and ultimately held that “isolated comments about the
limits of [the claimant’s] intellectual functioning, when viewed within the record as a
whole, were not sufficient to raise a suspicion” that the claimant was intellectually
disabled. Id. at 802-03 (observing notes stating that the claimant was able to think
clearly; that she was able to watch television, read, ride the bus herself, handle her own
finances, shop, go to church, and visit friends; that her condition did not severely affect
her ability to think, remember, make decisions, get along with others, and take part in
most activities; and that she appeared to be of average intelligence). Much like the
record in Pierre, while Dr. Muller’s opinion states that Plaintiff had some impairment
in cognitive function in that he had difficulty with immediate memory, it also states that
Plaintiff’s judgment was intact; he knew the month, the day of the week, and the name
of the president; his inability to work was due to his depression; he did not appear to
have difficulty understanding or carrying out simple instructions; he had concentration
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sufficient to complete his basic activities of daily living and enjoy listening to talk
shows; he was capable of managing his own funds; and that the quality of Plaintiff’s
speech and his vocational history suggested borderline intelligence. [R392-94].
Moreover, the VE’s testimony regarding the jobs available to a person of Plaintiff’s age
and experience took into account Plaintiff’s testimony that he had only a ninth- or
tenth-grade education and the ALJ’s limitation to simple work with few changes and
only occasional simple decisionmaking, and the jobs listed by the VE and relied upon
by the ALJ consisted exclusively of unskilled jobs. [R15, 50-51, 68-69]. Thus, the
Court concludes that even under Plaintiff’s own authority, he has not shown that the
ALJ breached an affirmative duty to order intelligence testing or that he was prejudiced
by such a breach.
3.
Concentration, Persistence, or Pace
Plaintiff next argues that the ALJ erred because he found “moderate” difficulties
in maintaining concentration, persistence, or pace, [R63], and that the RFC’s restriction
to simple, low-stress work and only occasional superficial contacts with the general
public does not adequately address the finding. [Doc. 12 at 11 (citing Jarrett v.
Comm’r of Soc. Sec., 422 Fed. Appx. 869, 872 (11th Cir. Apr. 11, 2011); Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011))]. He also states that the
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ALJ made no findings in regard to responding appropriately to supervision, coworkers,
and usual work situations, which are all required in order to perform the mental
demands of work. [Doc. 12 at 11].
The Commissioner, in response, points out that it is not true as a matter of law
that a limitation to unskilled or simple work is never sufficient to account for moderate
limitations in concentration, persistence, or pace, citing cases in which the Eleventh
Circuit has held that a hypothetical question could sufficiently account for impairments
in concentration, persistence, or pace if it includes a limitation to unskilled or simple
work or routine tasks and the medical evidence demonstrates that the claimant has the
ability to perform those tasks despite a limitation in concentration, persistence, or pace.
[Doc. 13 at 8-9 (citing Thornton v. Comm’r, Soc. Sec. Admin., 597 Fed. Appx. 604, 612
(11th Cir. Feb. 11, 2015) (limitation in RFC to “simple, non-detailed tasks” sufficient
to account for moderate limitations in concentration, persistence, or pace, where record
included medical opinion evidence indicating that the claimant could understand,
remember, and carry out simple instructions; that despite moderate limitation in the
ability to sustain concentration for extended periods, the limitation was not substantial
and the claimant’s concentration was adequate for basic activities; that the claimant
could sustain attention in two-hour segments; and that although the claimant would be
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expected to work at a slightly reduced pace, she was likely to persist with work-related
tasks); Szilvasi v. Comm’r, Soc. Sec. Admin., 555 Fed. Appx. 898, 902
(11th Cir. Feb. 7, 2014) (limitation in RFC to “simple, repetitive tasks, with superficial
interactions with others” sufficient to account for moderate limitations in concentration,
persistence or pace, where record included medical opinion evidence indicating that the
claimant could understand and follow at least simple instructions, concentrate for
shorter time periods, and make simple work-related decisions, and was not significantly
limited in his ability to understand, remember, and carry out very short and simple
instructions); Neefe v. Comm’r of Soc. Sec., 531 Fed. Appx. 1006, 1007
(11th Cir. Sept. 27, 2013) (limitation to only simple tasks or unskilled work sufficient
where ALJ determined medical evidence demonstrated claimant could engage in simple
work despite moderate limitation in concentration, persistence, or pace); Jarrett,
422 Fed. Appx. at 872 (limitation in RFC to low stress and simple and routine tasks
sufficient to account for moderate limitations in concentration, persistence, or pace,
where record included medical opinion evidence indicating that the claimant was “able
to follow simple instructions, complete simple tasks, make decisions, avoid hazards,
and relate adequately to function in the workplace” and was “able to understand,
remember, and carry out simple tasks,” despite moderate limitation in her ability to
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maintain attention and concentration for an extended period))]. The Commissioner also
points to medical opinion evidence she contends supplies substantial evidence to
support the ALJ’s determination that Plaintiff could perform within the mental RFC
despite his limitations in concentration, persistence, or pace. [Doc. 13 at 7-8, 10].
Here again, the Court concludes that the Commissioner has the better end of the
argument. Indeed, in Jarrett, one of the cases upon which Plaintiff principally relies,
the court held that “an ALJ’s hypothetical restricting the claimant to simple and routine
tasks adequately accounts for restrictions related to concentration, persistence and pace
where the medical evidence demonstrates that the claimant retains the ability to perform
the tasks despite concentration deficiencies.” Jarrett, 422 Fed. Appx. at 872. It also
clarified that Winschel, the other case upon which Plaintiff relies, was not to the
contrary, but rather that in Winschel the lack of an RFC limitation in the category of
concentration, persistence or pace was reversible error because the medical evidence
did not support that the claimant was able to perform the scope of work allowed by the
RFC without such limitations. Jarrett, 422 Fed. Appx. at 872 n.1.
In the present matter, like Jarrett and the other cases cited by the Commissioner,
and unlike Winschel, it is clear that the ALJ considered the medical evidence regarding
all of Plaintiff’s limitations before finding that he could perform unskilled, low-stress
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work requiring only occasional superficial contacts with the general public. As noted
above, the ALJ gave substantial weight to the opinions of reviewing psychologists
Dr. Shahar and Dr. Williams. [R67]. Dr. Shahar opined that Plaintiff can perform
simple instructions and that although he is likely to have difficulty with concentration,
attention, persistence, or pace, he retained the ability to do so for simple repetitive
tasks, for two-hour periods. [R397]. She further opined that although Plaintiff is likely
to have interpersonal difficulty with the public, coworkers, and supervisors, he
generally has the ability to interact appropriately in the workplace, and that Plaintiff is
likely to have difficulty with frequent or major workplace changes but not with lesser
ones. [R397]. Dr. Williams opined that Plaintiff is able to perform simple instructions,
can maintain attention and concentration for at least two-hour periods, and can make
basic work decisions, and although she opined that because of Plaintiff’s limitations in
understanding and memory and concentration, persistence, or pace, he would “do
better” with simple, routine tasks and supervisor encouragement, she did not state that
those accommodations were necessary. [R575]. She also opined that Plaintiff had
marked limitations with multitasking and the immediacy of direct work with the public
and that he tends to be withdrawn, but also that he is able to relate, go out in public, be
cooperative, undertake public activities, such as going to church and using public
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transportation, despite his social discomfort. [R575]. She further stated that Plaintiff
would “do better” with solo or small group tasks and supervisor encouragement; that
although he might have initial moderate limitations with work changes, he would adapt;
and, in sum, that he had no substantial psychological limitations at that time. [R575].
The ALJ noted the limitations stated by the state agency psychologists, [R66], and
made the determination that Plaintiff is capable of performing “simple (skill levels 1-2),
low stress (few changes in the workplace and occasional simple decisionmaking) jobs
only, and can have only occasional superficial contacts with the general public, [R64].
It is therefore obvious that the ALJ did not simply presume that Plaintiff could perform
“simple tasks,” [Doc. 12 at 11], but instead examined the medical opinions and made
an independent finding regarding the extent to which Plaintiff’s impairments limited
his ability to work. The Court concludes that this opinion evidence constitutes
substantial evidence in support of the mental RFC and therefore finds no reversible
error arising from Plaintiff’s challenge to the ALJ’s consideration of his limitations in
the category of concentration, persistence, or pace.
B.
Credibility
Plaintiff next argues that the ALJ erred in his credibility evaluation by giving too
much weight to medical records of treatment visits where Plaintiff reported that he did
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not have suicidal ideation or where he was described as having a “bright affect.”
[Doc. 12 at 12-14]. He suggests that the credibility determination was based on a
one-sided or incorrect view of the evidence and points out that SSR 96-7p requires
consideration of the entire case record and precludes the ALJ from disregarding a
claimant’s statements about the intensity and persistence of his symptoms or their effect
on the claimant’s ability to work solely because they are not substantiated by objective
medical evidence. [Id. at 12]. Plaintiff also argues that a claimant need not be an
invalid to be found disabled for the purposes of the Social Security Act and that his
participation in the activities of daily living will not rebut his subjective statements of
impairment unless there is proof that he engaged in those activities for sustained
periods of time comparable to those required to hold a sedentary job. [Id. at 12-13].
He also points to cases in which courts have concluded that a claimant whose claim is
based on a mental condition does not have to show a twelve-month period of
impairment unbroken by any symptom-free interval, and he asserts that his symptoms
were consistent throughout. [Id. at 13].
To establish disability based on a claimant’s testimony of pain and other
symptoms, the claimant must show “(1) evidence of an underlying medical condition;
and (2) either (a) objective medical evidence confirming the severity of the alleged
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pain; or (b) that the objectively determined medical condition can reasonably be
expected to give rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225
(11th Cir. 2002) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). The
ALJ need not cite to the pain standard so long as “his findings and discussion indicate
that the standard was applied.” Wilson, 284 F.3d at 1225-26.
The pain standard “is designed to be a threshold determination made prior to
considering the plaintiff’s credibility.” Reliford v. Barnhart, 444 F. Supp. 2d 1182,
1189 n.1 (N.D. Ala. 2006). Thus, “[i]f the pain standard is satisfied, the ALJ must
consider
the
plaintiff’s
subjective
complaints.”
James
v.
Barnhart,
261 F. Supp. 2d 1368, 1372 (S.D. Ala. 2003). In doing so, the ALJ considers the lay
evidence, medical opinions, and objective medical evidence; the claimant’s daily
activities; the location, duration, frequency, and intensity of the pain or other
symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and
side effects of any medication taken to alleviate the pain or other symptoms; other
treatment received for the pain or other symptoms; any measures used to relieve the
pain or other symptoms; and other factors concerning the claimant’s functional
limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c);
416.929(c). When a claimant’s subjective testimony is supported by medical evidence
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that satisfies the pain standard, he may be found disabled. Holt, 921 F.2d at 1223. If
the ALJ determines, however, that claimant’s testimony is not credible, “the ALJ must
show that the claimant’s complaints are inconsistent with his testimony and the medical
record.” Rease v. Barnhart, 422 F. Supp. 2d 1334, 1368 (N.D. Ga. 2006) (Feldman,
M.J.). This credibility determination does not require the ALJ to cite to particular
phrases or formulations, but it also cannot be a broad rejection so as to prevent the
courts from determining whether the ALJ considered the claimant’s medical condition
as a whole. Dyer v. Barnhart, 395 F.3d 1206, 1210-11 (11th Cir. 2005). After
considering a claimant’s complaints of pain or other subjective symptoms, the ALJ may
reject them as not credible, and that determination will be reviewed for substantial
evidence. Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1994).
After careful review, the Court finds no merit in Plaintiff’s allegation that the
ALJ did not apply the appropriate legal standards in assessing his credibility. First,
despite Plaintiff’s suggestion to the contrary, he does not point to anything in the
decision indicating that the ALJ considered Plaintiff’s daily activities to be evidence
of Plaintiff’s ability to function in a competitive work environment, nor has he pointed
to any portion of the decision to support his suggestion that the ALJ found him not to
be disabled within the context of the Social Security Act on the ground that he was not
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“an invalid.” [Doc. 12 at 12-13]. The Court’s own review of the decision has also
revealed no such error. [See R60-69]. Instead, the decision makes clear that the ALJ
considered Plaintiff’s daily activities when assessing his credibility, [see R64, 66-67],
which, as a matter of law, he was entitled to do, see Leiter v. Comm’r of Soc. Sec.
Admin., 377 Fed. Appx. 944, 948 (11th Cir. May 6, 2010) (per curiam) (affirming
decision in which ALJ found the claimant’s allegation that she was unable “to do even
simple tasks” not to be fully credible because it was inconsistent with her testimony of
substitute teaching twice a week and working in a “family club” where she takes money
at the door); Dyer, 395 F.3d at 1212 (affirming the ALJ’s credibility determination
where the ALJ considered the claimant’s activities of daily living, the frequency of his
symptoms, and the types and dosages of his medications, and concluded that his
subjective complaints were inconsistent with his testimony and the medical record);
Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990)
(per curiam) (“[A]n ALJ may consider household and social activities in evaluating
complaints of disabling pain.”); cf. Evans v. Comm’r, Soc. Sec. Admin.,
551 Fed. Appx. 521, 524 (11th Cir. Jan. 6, 2014) (per curiam) (discounting a medical
opinion because it “was contradicted by [the plaintiff’s] self-reported daily activities,
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which included various household chores, light yard work, driving, shopping, visiting
with friends and family, and playing chess daily”).
Similarly, Plaintiff has pointed to nothing in the opinion to suggest that the ALJ
reached his decision of non-disability based on a determination that Plaintiff was
required to manifest severe symptoms of mental impairment for a solid twelve-month
period but did not, [Doc. 12 at 13], and again, the Court finds no such reasoning in the
opinion, [see R60-69]. Rather, the ALJ compared Plaintiff’s reports that he was
depressed all the time, that he cried three to four days per week, sometimes all day, that
suicidal and homicidal thoughts never left his mind, that he had been having visual
hallucinations his whole life and other symptoms of mental illness since childhood, and
that he had been hospitalized multiple times for suicide attempts or ideation, to medical
records indicating that he had no complaints about mental issues until late 2009, that
he denied visual hallucinations, that his treating physician suspected partial
malingering, that he sometimes had a bright affect, that he often denied having suicidal
or homicidal thoughts, and that his reports of hospitalization were unsubstantiated and
inconsistent. [R64, 66-67].
Finally, while it may be true that the ALJ did not expressly remark upon each
aspect of Plaintiff’s daily activities that support his allegations of impairment, as
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discussed above, it is not necessary for the ALJ to cite every piece of evidence so long
as it is clear that he reviewed the evidence and considered Plaintiff’s condition as a
whole. See Hennes, 130 Fed. Appx. at 348 n.11; Dyer, 395 F.3d at 1211. Here, it is
clear that the ALJ considered Plaintiff’s testimony of sleep problems, hallucinations,
constant thoughts of homicide and suicide, unrelenting depression, and multiple suicide
attempts, but based on the medical record and Plaintiff’s own inconsistent reports of his
symptoms and activities, found the allegations to be less than fully credible. [See R6667].
The Court therefore concludes that Plaintiff has failed to show that the ALJ
committed reversible error in finding Plaintiff’s allegations of functional limitations
less than fully credible.
C.
VE Testimony
Finally, Plaintiff contends that because the ALJ erred in evaluating his credibility
and the evidence of his mental limitations, the RFC is too broad, the hypothetical
question the ALJ posed to the VE was thus incomplete, and the VE testimony is
therefore insufficient to serve as substantial evidence of non-disability. [Doc. 12 at 14].
Because the Court found no reversible error in the ALJ’s RFC assessment, the
hypothetical question to the VE was likewise untainted. Consequently, the undersigned
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finds that the VE testimony constitutes substantial evidence to support the ALJ’s
determination that a substantial number of jobs are available in the national economy
to a person of Plaintiff’s age, education, experience, and RFC.
VII. 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 28th day of March, 2016.
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