Wilson v. Colvin

Filing 20

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court AFFIRM the Commissioner's decision re: 1 Complaint filed by Debra Teresa Wilson. Any party seeking to object to this Report and Recommendation is ordered to file specific writ ten objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 1/28/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/14/2016. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

DEBRA TERESA WILSON,
Plaintiff,

CIVIL ACTION NO.: 2:14-cv-159

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

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff contests the decision of Administrative Law Judge Donald Fishman (“the ALJ”
or “ALJ Fishman”) denying her claim for supplemental security income benefits. Plaintiff urges
the Court to reverse the ALJ’s decision and award her benefits or, in the alternative, to remand
this case for a proper determination of the evidence. Defendant asserts the Commissioner’s
decision should be affirmed.

For the reasons which follow, I RECOMMEND the Court

AFFIRM the Commissioner’s decision.
BACKGROUND
Plaintiff protectively filed an application for supplemental security income benefits on
June 20, 2011, alleging that she became disabled on August 18, 2010, due to depression, bipolar
disorder, and cervical tumors. (Doc. 12-3, p. 16.) After her claim was denied initially and upon
reconsideration, Plaintiff filed a timely request for a hearing. On November 13, 2012, ALJ
Fishman conducted a video hearing at which Plaintiff, who was represented by a non-attorney
representative, appeared and testified in Brunswick, Georgia, while the ALJ was in Savannah,
Georgia. Kim Bennett, a vocational expert, also appeared at the hearing. ALJ Fishman found

that Plaintiff was not disabled within the meaning of the Act. (Doc. 12-2, p. 11.) The Appeals
Council denied Plaintiff’s request for review of the ALJ’s decision, and the decision of the ALJ
became the final decision of the Commissioner for judicial review. (Id. at p. 1.)
Plaintiff, born on June 5, 1962, was fifty (50) years old when ALJ Fishman issued his
final decision. She has an eleventh grade education. 1 (Id. at p. 30.) Plaintiff’s past relevant
work experience includes employment as a customer service clerk. (Id. at p. 65.)
DISCUSSION
I.

The ALJ’s Findings
Pursuant to the Act, the Commissioner has established a five-step process to determine

whether a person is disabled. 20 C.F.R. §§ 404.1520 & 416.920; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). The first step determines if the claimant is engaged in “substantial gainful
activity.” Yuckert, 482 U.S. at 140. If the claimant is engaged in substantial gainful activity,
then benefits are immediately denied. Id. If the claimant is not engaged in such activity, then
the second inquiry is whether the claimant has a medically severe impairment or combination of
impairments. Yuckert, 482 U.S. at 140–41. If the claimant’s impairment or combination of
impairments is severe, then the evaluation proceeds to step three. The third step requires a
determination of whether the claimant’s impairment meets or equals one of the impairments
listed in the Code of Federal Regulations and acknowledged by the Commissioner as sufficiently
severe to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d) & 416.920(d); 20
C.F.R. Pt. 404, Subpt. P. App. 1; Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). If
the impairment meets or equals one of the listed impairments, the plaintiff is presumed disabled.
1

The Court notes ALJ Fishman stated in his opinion that Plaintiff has a high school education. (Doc. 122, p. 17.) However, Plaintiff testified during the administrative hearing that she finished eleventh grade
and did not complete her General Equivalency Diploma (“GED”) requirements. (Doc. 12-2, p. 30.) The
ALJ did include an eleventh grade education level in his hypothetical to the vocational expert. (Id. at
p. 65.)

2

Yuckert, 482 U.S. at 141.

If the impairment does not meet or equal one of the listed

impairments, the sequential evaluation proceeds to the fourth step to determine if the impairment
precludes the claimant from performing past relevant work, i.e., whether the claimant has the
residual functional capacity to perform his past relevant work. Id.; Stone v. Comm’r of Soc.
Sec., 503 F. App’x 692, 693 (11th Cir. 2013). A claimant’s residual functional capacity “is an
assessment . . . of the claimant’s remaining ability to do work despite his impairments.” Id. at
693–94 (ellipsis in original) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).
If the claimant is unable to perform his past relevant work, the final step of the evaluation
process determines whether he is able to make adjustments to other work in the national
economy, considering his age, education, and work experience. Phillips, 357 F.3d at 1239.
Disability benefits will be awarded only if the claimant is unable to perform other work.
Yuckert, 482 U.S. at 142.
In the instant case, the ALJ followed this sequential process to determine that Plaintiff
did not engage in substantial gainful activity during the period from her alleged onset date of
June 20, 2011, through the date of ALJ Fishman’s decision on February 1, 2013. (Doc. 12-2, p.
13.)

At Step Two, the ALJ determined that Plaintiff had affective disorder and asthma,

conditions considered “severe” under the Regulations. 2 However, the ALJ determined that
Plaintiff=s medically determinable impairments did not meet or medically equal a listed
impairment. (Id. at pp. 12–13.) The ALJ found that Plaintiff had the residual functional
capacity, through the date of his decision, to perform work at the full range of the light work
level, except with the following limitations: lifting twenty pounds occasionally and ten pounds
frequently; sitting, walking, and standing individually for up to eight hours; avoiding climbing
2

The ALJ noted Plaintiff’s history of fibroid uterus and pelvic adhesions but noted Plaintiff underwent a
total hysterectomy and had no residual limitations as a result. (Doc. 12-2, p. 12.)

3

ladders, ropes, and scaffolding; avoiding concentrated fumes, dust, and temperature extremes;
climbing stairs and crawling occasionally; stooping, crouching, and kneeling frequently;
avoiding frequent public interaction; and performing repetitive short cycle work with a Specific
Vocational Preparation code between 1 and 3. (Id. at p. 15.) At the next step, ALJ Fishman
noted Plaintiff was unable to perform her past relevant work as a customer service
representative. (Id. at p. 17.) The ALJ determined at the final step that Plaintiff had the residual
functional capacity for and could adjust to work as a bench assembler, cleaner/housekeeper, and
office helper. (Id. at p. 18.)
II.

Issues Presented
Plaintiff contends the ALJ erred by failing to consider and adequately weigh medical

opinion evidence. Plaintiff also contends the ALJ erred in failing to find she met Listing 12.04.
Further, Plaintiff asserts the ALJ erred in relying on a hypothetical question posed to the
vocational expert which did not fully encompass her limitations.
III.

Standard of Review
It is well-established that judicial review of social security cases is limited to questions of

whether the Commissioner’s factual findings are supported by “substantial evidence,” and
whether the Commissioner has applied appropriate legal standards. Cornelius v. Sullivan, 936
F.2d 1143, 1145 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A
reviewing court does not “decide 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). Even if the
evidence preponderates against the Commissioner’s factual findings, the court must affirm a
decision supported by substantial evidence. Id.

4

However, substantial evidence must do more than create a suspicion of the existence of
the fact to be proved. The evidence relied upon must be relevant evidence which a reasonable
mind would find adequate to support a conclusion. Ingram v. Comm’r of Soc. Sec. Admin., 496
F. 3d 1253, 1260 (11th Cir. 2007). The substantial evidence standard requires more than a
scintilla but less than a preponderance of evidence. Dyer, 395 F.3d at 1210. In its review, the
court must also determine whether the ALJ or Commissioner applied appropriate legal standards.
Failure to delineate and apply the appropriate standards mandates that the findings be vacated
and remanded for clarification. Cornelius, 936 F.2d at 1146.
III.

Medical Opinions
Plaintiff avers the ALJ gave little weight to the opinion of her treating physician, Dr.

William Shivers, and ALJ Fishman’s decision to do so is not supported by substantial evidence.
Plaintiff contends that there is nothing of record suggesting Dr. Shivers’ opinion was not based
on clinical or objective evidence. Plaintiff also contends the ALJ failed to note how long Dr.
Shivers provided Plaintiff with treatment, the number of examinations, his specialty in
psychiatry, or the fact that his opinion is consistent with the opinions of the two other doctors
who examined her, Dr. Marc Eaton and Dr. Aroon Suansilppongse. (Doc. 14, p. 14.) In
addition, Plaintiff alleges the ALJ’s failure to properly credit Drs. Eaton’s and Suansilppongse’s
opinion is clear error. (Id. at pp. 14–16.) Further, Plaintiff maintains ALJ Fishman failed to
even discuss the opinions of Dr. Jennifer Keyes and Dr. Joseph Garmon, both of whom evaluated
Plaintiff.
The Commissioner asserts substantial evidence supports the weight the ALJ gave the
medical source opinions. Specifically, the Commissioner asserts Dr. Shivers failed to include
any medical or clinical findings to support his “extreme” assessment, despite being asked to

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describe his clinical findings. (Doc. 18, p. 8.) The Commissioner also asserts ALJ Fishman
noted that Plaintiff saw Dr. Shivers on an infrequent basis prior to November 1, 2012, at which
time he completed a medical source statement.

The Commissioner contends Dr. Shivers

indicated his initial diagnosis was based on Plaintiff’s mental health status without benefit of a
comprehensive examination and Plaintiff’s self-reported history.

(Id. at p. 10.)

The

Commissioner states the ALJ reasonably discounted Dr. Shivers’ opinions and gave good
reasons for doing so. The Commissioner also contends substantial evidence supports the ALJ’s
decision to give little weight to Dr. Eaton’s opinion, as Dr. Eaton relied too heavily on Plaintiff’s
subjective complaints, and his opinions were inconsistent with the record as a whole. Further,
the Commissioner asserts that the ALJ implicitly gave the opinions of Drs. Suansilppongse,
Keyes, and Garmon little weight because their opinions relied too heavily on Dr. Shivers’ and
Dr. Eaton’s opinions. (Id. at p. 14.)
“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [the claimant’s]
impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the claimant’s] physical or mental restrictions.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178–79 (11th Cir. 2011) (alteration in
original) (quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)). “The law of this circuit is clear
that the testimony of a treating physician must be given substantial or considerable weight unless
‘good cause’ is shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)
(citations omitted).
“Good cause exists ‘when the: (1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was

6

conclusory or inconsistent with the doctor’s own medical records.’” Winschel, 631 F.3d at 1179
(quoting Phillips, 357 F.3d at 1241). “The ALJ has wide latitude to determine what weight to
assign to those opinions, so long as he operates within the regulatory and judicial frameworks.”
Zanders v. Colvin, No. CV412-182, 2013 WL 4077456, at *5 (S.D. Ga. Aug. 12, 2013). “For
instance, when discounting a medical opinion, he should consider several factors, including the
examining relationship, the treatment relationship, the doctor’s specialization, whether the
opinion is amply supported, and whether the opinion is consistent with the record.” Id. (citing 20
C.F.R. §§ 404.1527(c) & 416.927(c)). “[T]he ALJ must state with particularity the weight given
to different medical opinions and the reasons therefor.” Winschel, 631 F.3d at 1179 (citation
omitted). Failure to “clearly articulate the reasons for giving less weight to the opinion of a
treating physician” is “reversible error.” Lewis, 125 F.3d at 1440 (citation omitted).
ALJ Fishman found that Dr. Shivers’ opinions contained in the mental medical source
statement were not based on clinical or objective evidence “but largely on [Plaintiff’s] own
complaints and account of her symptoms and limitations[.]” (Doc. 12-2, p. 17.) ALJ Fishman
noted there was a lack of supporting evidence and that the format of Dr. Shivers’ statement was
“heavily weighted” by Plaintiff’s subjective complaints. (Id.) Thus, he gave Dr. Shivers’
opinion “relatively little weight.” (Id.) In addition, the ALJ observed Dr. Shivers had seen
Plaintiff on a very infrequent basis before he completed his assessment in November 2012. The
ALJ also observed Dr. Shivers did not record any abnormal findings or perform a mental status
evaluation prior to completing this assessment. Moreover, the ALJ noted Plaintiff’s Global
Assessment of Functioning (“GAF”) scores—55 prior to the completion of the assessment and
60 at the highest—indicate only moderate and nearly mild limitations and were inconsistent with
Dr. Shivers’ “extreme findings.” (Id.)

7

As for Dr. Eaton’s conclusions, the ALJ discounted them because they also relied too
heavily on Plaintiff’s subjective complaints and were inconsistent with the record as a whole
because there was “no longitudinal history of mental health issues except for one brief period
prior to [Plaintiff’s] most recent, inconsistent treatment.” (Id.) The ALJ specifically noted the
record contained little, if any, support for “most” of Dr. Eaton’s diagnoses of anxiety disorder,
depression, amnestic disorder, intermittent explosive disorder, and personality disorder. (Id.)
The ALJ observed Plaintiff had never been fired due to an inability to get along with others, and
she had no reports of problems with authority or getting along with family, friends, or neighbors.
ALJ Fishman stated, “At most, [Dr. Eaton’s] impressions are based on a snapshot presentation.”
(Id.)
In addition, ALJ Fishman gave “[c]areful consideration” to the State Agency mental
health evaluators’ opinions, but he did not give these opinions much weight, if any. (Id.) ALJ
Fishman noted these opinions relied too heavily on Dr. Shivers’ and Dr. Eaton’s opinions, which
he “discounted previously.” (Id.)
ALJ Fishman clearly stated his reasons for giving the opinions of Drs. Shivers, Eaton,
Suansilppongse, Keyes, and Garmon little to no weight. Specifically, the ALJ stated Dr. Shivers
did not see Plaintiff frequently, and his assessment was largely based on Plaintiff’s subjective
reports. In addition, the ALJ determined the objective evidence of record did not support Dr.
Shivers’ findings. Thus, the ALJ had “good cause” to give little weight to the opinion of
Plaintiff’s treating physician.
Further, ALJ Fishman stated he did not find Dr. Eaton’s opinions and diagnoses to be
supported by objective evidence of record and that they relied too heavily on Plaintiff’s
subjective reports. ALJ Fishman discounted the opinions of Drs. Suansilppongse, Keyes, and

8

Garmon because their opinions relied on the opinions of Drs. Shivers and Eaton, and he had
already discounted those opinions. The ALJ met the requirements of 20 C.F.R. §§ 404.1527(c)
& 416.927(c) by stating his reasons for discounting these doctors’ opinions.
As ALJ Fishman met the legal requirements for weighing the opinions of Plaintiff’s
medical sources, his determination to give little to no weight to these opinions is supported by
substantial evidence. This enumeration of error is without merit.
IV.

Listing 12.04
Plaintiff maintains ALJ Fishman failed to cite any medical evidence regarding her mental

state which contradicted the findings of her physicians. Rather, Plaintiff avers, it appears the
ALJ did not credit these opinions “based on his own diagnostic impressions.” (Doc. 14, p. 18.)
Plaintiff asserts the ALJ failed to consider the clinical signs of her chronic mental disorders or
the medications she took for these disorders. Plaintiff contends a mental health professional’s
observations of a patient’s behavior and responses during a mental health status examination are
clinical signs of mental illness and thus, her physicians’ opinions in this regard are based on
clinical signs.
The Commissioner responds that, given that substantial evidence supports the ALJ’s
decision to give Plaintiff’s physicians’ opinions little weight, her argument that she meets Listing
12.04C necessarily fails. The Commissioner asserts the ALJ considered Listing 12.04 and
explained why Plaintiff did not meet this Listing’s “B” criteria, as he found Plaintiff had no
restriction in her activities of daily living, moderate difficulties in maintaining social functions
and in concentration, persistence, or pace, and no episodes of decompensation of an extended
duration. The Commissioner also asserts Plaintiff fails to present any argument regarding how
her impairments met or equaled the “A” criteria of Listing 12.04.

9

“For a claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Arrington v. Soc. Sec. Admin., 358 F. App’x 89, 93 (11th Cir.
2009) (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). To prevail at step three, the
claimant must provide specific evidence—such as medical signs, symptoms, or laboratory-test
results—showing that her impairment meets or medically equals a listed impairment. Sullivan,
493 U.S. at 530. A claimant whose severe impairment satisfies or medically equals a listed
impairment is “conclusively presumed to be disabled based on his or her medical condition.”
Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). If a claimant cannot prove that she
is disabled at step three, she may do so at steps four and five. See Phillips v. Barnhart, 357 F.3d
1232, 1238–40 (11th Cir. 2004).
The ALJ’s finding as to whether a claimant does or does not meet a listed impairment
need not be explicit and may be implied from the record. Hutchison v. Bowen, 787 F.2d 1461,
1463 (11th Cir. 1986) (holding that the ALJ implicitly found that the claimant did not meet a
Listing because it was clear from the record that the ALJ had considered the relevant law and
evidence). Furthermore, although the ALJ must consider the Listings in making his disability
determination, he is not required to recite mechanically the evidence leading to his ultimate
determination. Bellew v. Acting Comm’r of Soc. Sec., 605 F. App’x 917, 920 (11th Cir. 2015)
(internal citation omitted).
Listing 12.04 addresses affective disorders and provides that such a disorder is
“[c]haracterized by a disturbance of mood, accompanied by a full or partial manic or depressive
syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally
involves either depression or elation.” 20 C.F.R. 404, Subpart P, Appendix 1, § 12.04. To meet

10

Listing 12.04, a claimant must have “[m]edically documented persistence, either continuous or
intermittent, of” depressive syndrome, manic syndrome, or bipolar syndrome and this condition
results in at least two of the following: marked restrictions in activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended duration. 3 Id. at
§§ 12.04A, B. In the alternative to the “B” criteria, a claimant may, in addition to the “A”
criteria, show a: “[m]edically documented history of a chronic affective disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or psychosocial support,
and one of the following:” repeated episodes of decompensation, each of extended duration; or a
residual disease process that has resulted in such marginal adjustment that even a minimal
increase in mental demands or change in the environment would be predicted to cause the
individual to decompensate; or a current history of one or more years’ inability to function
outside a highly supportive living arrangement, with an indication of continued need for such an
arrangement. Id. at § 12.04C.
ALJ Fishman determined the severity of Plaintiff’s mental impairment did not meet or
medically equal the criteria of Listing 12.04. (Doc. 12-2, p. 14.) Specifically, the ALJ noted
Plaintiff had no restriction in her activities of daily living, as there was no objective evidence that
Plaintiff had any limitations due to a mental impairment. ALJ Fishman also noted Plaintiff had
moderate difficulties in social functioning based on a function report which indicated she had
never been fired from a job because she had problems getting along with others, and she had no
3

“The term ‘marked’ means more than moderate but less than extreme and covers a limitation that
interferes ‘seriously with [the claimant’s] ability to function independently, appropriately, effectively, and
on a sustained basis.’” Simms v. Colvin, No. CV 114-212, 2015 WL 6509128, at *4 (S.D. Ga. Oct. 28,
2015) (internal citation omitted), report and recommendation adopted (S.D. Ga. Nov. 19, 2015).

11

problems with authority or getting along with family, friends, or neighbors. The ALJ likewise
observed there was no indication of the record, other than her own subjective complaints, that
Plaintiff experienced more than moderate difficulties in this domain.

As for the area of

concentration, persistence, or pace, the ALJ determined Plaintiff had moderate difficulties, as the
record lacked any objective indication that Plaintiff was more limited in this area. Finally, ALJ
Fishman noted there was no objective evidence that Plaintiff had any episodes of
decompensation of an extended duration. (Id.)
Because the ALJ determined Plaintiff’s mental impairment did not cause at least two
marked limitations (or one marked limitation with repeated episodes of decompensation of
extended duration), the “paragraph B” criteria were not met. ALJ Fishman also found the
“paragraph C” criteria were not met. In so doing, the ALJ stated Plaintiff did not have a
medically documented history of chronic affective disorder of at least two years’ duration which
caused more than a minimal limitation on her ability to perform basic work. (Id.) ALJ Fishman
also determined Plaintiff’s “symptoms or signs [were] currently attenuated by medication or
psychosocial support[.]” (Id.) 4
ALJ Fishman specifically examined whether Plaintiff met Listing 12.04 by considering
both the “B” and “C” paragraphs. Substantial evidence supports ALJ Fishman’s determination
that Plaintiff met neither of these sets of criteria.

4

Plaintiff failed to meet her burden of

ALJ Fishman’s entire statement in this regard is as follows: “In addition, with symptoms or signs
currently attenuated by medication or psychosocial support, and either: (1) repeated episodes or
decompensation, each of extended duration; (2) a residual disease process that has resulted in such
marginal adjustment that even a minimal increase in mental demands or change in the environment would
be predicted to cause the individual to decompensate; or (3) a current history of 1 or more years’ inability
to function outside a highly supportive living arrangement, with an indication of continued need for such
an arrangement.” (Doc. 12-2, p. 14.) Given the ALJ’s finding that Plaintiff did not meet the “C” criteria,
the Court presumes the ALJ meant to state Plaintiff’s alleged debilitating condition was weakened due to
her medication and/or support, and that she did not exhibit any of the three criteria.

12

establishing she met all of the criteria of Listing 12.04, and her contention to the contrary is
without merit.
V.

Hypothetical Posed to Vocational Expert
Plaintiff alleges it is “far from apparent” that the ALJ’s residual functional capacity

assessment and hypothetical posed to the vocational expert account for the “acknowledged”
limitations in the areas of functioning and of concentration, persistence, or pace. (Doc. 14, p.
20.) According to Plaintiff, these deficiencies “deprive the ALJ’s decision of substantial support
even when viewed in the context of the ALJ’s own findings.” (Id. at p. 21.)
The Commissioner states that, contrary to Plaintiff’s contention, the ALJ’s residual
functional capacity and the hypothetical posed to the vocational expert adequately accounted for
Plaintiff’s moderate limitation in concentration by restricting her to repetitive, short cycle work
with a Specific Vocational Preparation code between 1 and 3, which corresponds with the
definition of unskilled work and at the low end of semi-skilled work. The Commissioner states
the medical records and other evidence support the ALJ’s residual functional capacity finding,
which implicitly accounts for his psychiatric review technique ratings of moderate difficulties in
concentration and moderate difficulties in maintaining social functioning.

Thus, the

Commissioner asserts, the vocational expert’s testimony provided substantial evidence to support
the ALJ’s conclusion that Plaintiff could perform other work existing in the national economy.
A residual functioning capacity assessment must always consider and address medical
source opinions. If the residual functioning capacity assessment conflicts with an opinion from a
medical source, the adjudicator must explain why the opinion was not adopted. Social Security
Ruling 96-8p. “An ALJ is not entitled to pick and choose through a medical opinion, taking only
the parts that are favorable to a finding of nondisability.” Kerwin v. Astrue, 244 F. App’x 880,

13

885 (10th Cir. 2007). The final determination of a plaintiff’s residual functioning capacity is
reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d) & (e)(2).
Under the Act, a plaintiff bears the burden of proving that she cannot perform her past
relevant work. Barnes v. Sullivan, 932 F.2d 1356, 1359 (11th Cir. 1991). If a plaintiff cannot
perform her past relevant work, the burden shifts to the ALJ to prove that other work exists in the
national economy which the plaintiff can perform. Jackson v. Bowen, 801 F.2d 1291, 1293
(11th Cir. 1986). Through the use of vocational expert testimony, the ALJ must articulate
specific jobs which the plaintiff is able to perform. Cowart v. Schweiker, 662 F.2d 731, 736
(11th Cir. 1981). The hypothetical questions which the ALJ poses to the vocational expert must
comprehensively describe the claimant’s impairments. Jones v. Apfel, 190 F.3d 1224, 1229
(11th Cir. 1999). However, the hypothetical need only include the impairments which the ALJ
accepts as true. McKay v. Apfel, No. 97-C-1548-N, 1999 WL 1335578, at *7 (M.D. Ala. Dec. 9,
1999) (citing Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir. 1994)).
Here, in addition to the findings as to the Plaintiff’s medical source opinions set forth
above, the ALJ found Plaintiff’s statements concerning the intensity, persistence, and limiting
effects of her symptoms not to be credible. The ALJ noted Plaintiff testified she was fired from
her job of two and a half years at Walmart because she missed too much time due to sickness, yet
she told a consultative examiner she was fired because she was accused of allowing a customer
to steal something. (Doc. 12-2, pp. 15–16, 33; Doc. 12-7, p. 103.) ALJ Fishman observed a
reasonable inference from these inconsistent statements is that Plaintiff’s alleged impairments
did not prevent the performance of her job, since that job was being “performed adequately at the
time of the layoff despite a similar medical condition.” (Doc. 12-2, p. 16.) ALJ Fishman also

14

observed that Plaintiff testified that, after she was terminated from Walmart, she looked for
another job but could not find one, indicating that Plaintiff felt she was able to work.
In addition, ALJ Fishman stated Plaintiff began going to Gateway for treatment in June
2011, which was after she filed for benefits. The ALJ stated Plaintiff’s only mental health
records prior to June 2011 were from approximately five years prior, after the deaths of her sister
and boyfriend. The ALJ noted Plaintiff used medication for a brief period, which did not suggest
the presence of a mental impairment more limiting than what he determined. (Doc. 12-7, p. 96.)
Moreover, ALJ Fishman opined Plaintiff’s infrequent trips to the doctor for her mental health
symptoms “suggest that the symptoms were not quite as severe as” alleged. (Doc. No. 12-2,
p. 16.) Further, ALJ Fishman observed “the fact that [Plaintiff] only went back to seek mental
health treatment after filing for benefits suggests there may have been ulterior motives for
seeking treatment.” (Id.) Additionally, ALJ Fishman stated Plaintiff only attended mental health
treatment sporadically after June 2011 and returned after a nine month hiatus in November 2012
to have a medical assessment completed. The ALJ also stated Plaintiff told Dr. Shivers at that
time her condition had worsened, “despite rather minimal complaints during her most recent
appointments.” (Id.)
ALJ Fishman noted Plaintiff denied any use of drugs at the hearing, (doc. 12-2, p. 32),
yet she previously indicated she had used cocaine in the past and had her son taken away from
her as a result. (Doc. 12-7, p. 96.) ALJ Fishman noted Plaintiff never mentioned any mental
health complaints during her emergency room visits for breathing treatments.

(See, e.g.,

Doc. 12-9, pp. 5, 10.) In fact, ALJ Fishman noted Plaintiff’s mental health status was evaluated

15

on one of these occasions, and Plaintiff did not indicate she was experiencing depression and
presented as calm and cooperative. (Doc. 12-2, p. 16; Doc. 12-9, p. 49.) 5
At the hearing, ALJ Fishman asked the vocational expert to assume that an individual
with past relevant work experience at the sedentary to light, semi-skilled level who was fifty
years old with an eleventh grade education, who could lift at least twenty pounds occasionally
and ten pounds frequently; sit, stand, and walk for eight hours a day; avoid climbing ladders,
ropes, and scaffolding but could occasionally climb stairs and crawl; frequently stoop, crouch,
and kneel; and would have to avoid frequent concentrated exposure to dust, fumes, other
airborne particulates, and temperature extremes. The ALJ also asked the vocational expert to
consider that the individual would be able to perform repetitive short cycle work, usually at the
Specific Vocational Preparation codes of 1 and 2. (Doc. 12-2, pp. 65–66.) The vocational expert
stated the hypothetical individual could work as a bench assembler, cleaner/housekeeper, and
officer helper. All of these jobs were at the light, unskilled level with a Specific Vocational
Preparation code of 2. (Id. at p. 66.)
The ALJ included all of the impairments he accepted as true in the hypothetical posed to
the vocational expert. As that was all that was required of him, this enumeration of error is
without merit. 6

5

Though Plaintiff did not challenge the ALJ’s credibility determination, the Court includes discussion of
this determination as a possible explanation of why Plaintiff’s subjective reports were not included in ALJ
Fishman’s residual functioning capacity finding and thus, his hypotheticals posed to the vocational expert.

6

While ALJ Fishman’s decision is not as lengthy as most of the administrative decisions this Court
reviews, this does not mean his decision is not supported by substantial evidence, as indicated in the body
of this Report.

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CONCLUSION
Based on the foregoing, it is my RECOMMENDATION that the Court AFFIRM the
decision of the Commissioner and CLOSE this case.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. The
Clerk of Court is DIRECTED to serve a copy of this Report and Recommendation upon the
parties.
SO ORDERED and REPORTED and RECOMMENDED, this 14th day of January,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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