Clark v. Colvin

Filing 14

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court AFFIRM the decision of the Commissioner re 1 Complaint filed by Amy Latrelle Clark. I also RECOMMEND that the Court 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 (Objections to R&R due by 4/7/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/24/2016. (ca)

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

AMY LATRELLE CLARK,
Plaintiff,

CIVIL ACTION NO.: 2:15-cv-38

v.
CAROLYN W. COLVIN, Acting
Commissioner,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff contests the decision of Administrative Law Judge G. William Davenport (“the
ALJ” or “ALJ Davenport”) denying her claim for period of disability, disability insurance
benefits, and 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.
affirmed.

Defendant asserts the Commissioner’s decision should be

For the reasons which follow, I RECOMMEND the Court AFFIRM the

Commissioner’s decision.
BACKGROUND
Plaintiff protectively filed an application for period of disability, disability insurance
benefits, and supplemental security income benefits on April 27, 2012, alleging that she became
disabled on December 15, 2009, due to depression, bipolar disorder, and intellectual disability.
(Doc. 9-3, p. 61; Doc. 11, p. 1.) After her claim was denied initially and upon reconsideration,
Plaintiff filed a timely request for a hearing. On July 24, 2013, ALJ Davenport conducted a
hearing at which Plaintiff, who was represented by a counsel, appeared and testified. Kim

Bennett, a vocational expert, also appeared at the hearing. ALJ Davenport found that Plaintiff
was not disabled within the meaning of the Act. (Doc. 9-3, p. 61.) 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. (Doc. 9-2, p. 2.)
Plaintiff, born on August 26, 1983, was thirty (30) years old when ALJ Davenport issued
his final decision. She has a high school education. 1 (Doc. 11, p. 2; Doc. 9-3, p. 71.) Plaintiff’s
past relevant work experience includes employment as a laborer, a stock clerk, a hospital cleaner,
and a hand packager. (Doc. 13, p. 2.)
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
1

The Court notes ALJ Davenport stated in his opinion that Plaintiff obtained her GED. (Doc. 9-3, p. 66.)
However, Plaintiff graduated from high school after placement in special education classes. (Doc. 11,
p. 2.)

2

the impairment meets or equals one of the listed impairments, the plaintiff is presumed disabled.
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
December 15, 2009, through the date of ALJ Davenport’s decision on September 25, 2013.
(Doc. 9-3, p. 63.) At Step Two, the ALJ determined that Plaintiff had depressive disorder and
borderline intellectual functioning, conditions considered “severe” under the Regulations.
However, the ALJ determined that Plaintiff’s medically determinable impairments did not meet
or medically equal a listed impairment. (Id. at p. 65.) The ALJ found that Plaintiff had the
residual functional capacity, through the date of his decision, to perform a full range of work at
all exertional levels, except with the non-exertional limitation of doing simple, relatively
repetitive work. (Id. at p. 67.) At the next step, ALJ Davenport noted Plaintiff was able to

3

perform her past relevant work as a hospital cleaner, hand packager, and laborer, as these jobs
were actually performed and how they are generally performed. (Id. at p. 70.)
II.

Issues Presented
Plaintiff contends the ALJ erred by failing to find Plaintiff meets or equals Listing 12.05.

(Doc. 11, pp. 11–17.) Plaintiff also contends the ALJ’s residual functional capacity finding is
not supported by substantial evidence. (Id. at pp. 17–20.) Plaintiff asserts the ALJ did not make
a proper credibility determination. (Id. at pp. 20–22.) Finally, Plaintiff alleges the ALJ erred in
finding that she could perform her past relevant work. (Id. at pp. 22–25.)
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.
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.

4

Failure to delineate and apply the appropriate standards mandates that the findings be vacated
and remanded for clarification. Cornelius, 936 F.2d at 1146.
IV.

Whether Substantial Evidence Supports the ALJ’s Determination That Plaintiff did
not Meet Listing 12.05
Plaintiff asserts the ALJ discounted her multiple IQ scores, which reveal that she falls

within Listing 12.05B or Listing 12.05C. Plaintiff also asserts the ALJ failed to consider her
additional work-related limitations, specifically her major depressive disorder. (Doc. 11, pp. 11,
17.) Plaintiff maintains the record contains no evidence she ever held a semi-skilled job, as she
performed it. (Id. at p. 12.)
Defendant states substantial evidence supports the ALJ’s determination that Plaintiff did
not meet Listing 12.05, despite Plaintiff’s IQ scores. (Doc. 13, p. 4.) Defendant asserts ALJ
Davenport determined Plaintiff’s IQ scores, as found by Dr. Marc Eaton, were inconsistent with
Plaintiff’s educational background, work history, and the medical evidence. (Id. at p. 6.)
“For a claimant to show that [her] 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).

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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).
To meet Listing 12.05 (“intellectual disability”) 2, “a claimant must at least (1) have
significantly subaverage general intellectual functioning; (2) have deficits in adaptive behavior;
and (3) have manifested deficits in adaptive behavior before age 22.” Crayton, 120 F.3d at 1219.
These requirements are referred to as the Listing’s “diagnostic criteria.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.00 (“Listing 12.05 contains an introductory paragraph with the diagnostic
description for [intellectual disability].”) In addition to satisfying the diagnostic criteria, a
claimant must meet one of the four severity requirements in paragraphs A through D of the
listing. See id. § 12.05. Under paragraph C, a claimant must show that she has both “[a] valid
verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment
imposing an additional and significant work-related limitation of function. A valid IQ score of
60 to 70 satisfies the first prong of paragraph C and creates a rebuttable presumption that the
2

Effective September 3, 2013, the Social Security Administration replaced the term mental retardation
with the term intellectual disability as a listed impairment. Change in Terminology: “Mental Retardation”
to “Intellectual Disability,” 78 Fed. Reg. 46499-01 (Aug. 1, 2013) (to be codified at 20 C.F.R. Pt. 404,
Subpt. P, App. 1). This change was made because “the term ‘mental retardation’ has negative
connotations,” and “has become offensive to many people.” Id. at 46499. This change “d[id] not affect
the actual medical definition of the disorder or available programs or services.” Id. at 49500. “So while
the ALJ, whose decision issued before the change took effect, and the parties use the old terminology, we
follow the agency’s new nomenclature.” Frame v. Comm’r, Soc. Sec. Admin., 596 F. App’x 908, 911
(11th Cir. 2015).

6

claimant satisfies the diagnostic criteria for intellectual disability.” Hodges v. Barnhart, 276 F.3d
1265, 1268–69 (11th Cir. 2001).

“At the same time, it is well established that such a

presumption does not arise where a qualifying IQ score is inconsistent with other record
evidence concerning her daily activities and behavior.” Lowery v. Sullivan, 979 F.2d 835, 837
(11th Cir. 1992) (citing Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)). “But once the
ALJ accepts an IQ score as valid and finds that the claimant’s impairments meet or medically
equal the other criteria of listing 12.05C, the disability determination cannot be based on the
claimant’s age, education, or work experience.” Id. “In sum, a claimant proves that she meets
listing 12.05C by establishing the diagnostic criteria for intellectual disability, including deficits
in adaptive functioning; showing onset before age 22; producing a valid, qualifying IQ score;
and exhibiting the requisite deficits in work-related functioning.” Frame, 596 F. App’x at 911.
ALJ Davenport determined the severity of Plaintiff’s mental impairments, considered
singly and in combination, do not meet or equal listing 12.05. 3

(Doc. 9-3, p. 65.)

ALJ

Davenport specifically noted he considered whether Plaintiff satisfied the “paragraph D” criteria
of Listing 12.05. To satisfy these criteria, a plaintiff must have two or more of the following:
marked restriction of 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. (Id.) The ALJ observed Plaintiff had
mild restriction in her activities of daily living, which he found to be supported by Plaintiff’s
reports of caring for her three young children, preparing meals, performing chores, caring for her
hygiene, and shopping and Plaintiff’s testimony that she is able to make change while shopping,
though it is difficult.

(Id.)

The ALJ determined Plaintiff had mild difficulties in social

3

ALJ Davenport also determined Plaintiff’s mental impairments did not meet or medically equal Listing
12.04. (Doc. 9-3, p. 65.) As Plaintiff does not assert the ALJ erred in failing to find she met Listing
12.04, the Court need not recount any determinations as to Listing 12.04.

7

functioning, as shown by Plaintiff’s reports of going shopping, attending church, and
maintaining relationships with family and friends. The ALJ also noted Plaintiff was pleasant at
the hearing, and consultative examiners found her to be cooperative at examinations. (Id.) In
finding Plaintiff had moderate difficulties in concentration, persistence, or pace, ALJ Davenport
noted Plaintiff reported that she could concentrate to complete chores and shopping trips and to
focus on following television programs. ALJ Davenport found further support with Plaintiff’s
abilities to pay attention, sustain goal-directed behaviors, and concentrate during the consultative
examinations. (Id.) The ALJ also noted Plaintiff’s testimony that she worked as a certified
nursing assistant and as a retail stocker, both of which were jobs showing she could pay attention
and keep track of multiple details. As to the fourth of these criteria, ALJ Davenport found
Plaintiff had experienced no episodes of mental decompensation. (Id.)
ALJ Davenport observed Plaintiff did not meet the “paragraph A” requirements because
Plaintiff could care for her and her children’s personal needs, follow directions, and had
previously worked semi-skilled jobs.4 (Id. at p. 66.) The ALJ determined Plaintiff did not meet
the “paragraph B” criteria, as she had no valid verbal, performance, or full scale IQ score of 59
or less. While ALJ Davenport noted Plaintiff’s full scale score of 53, verbal comprehension
score of 58, working memory score of 55, and processing speed score of 59 during testing in a
July 2010 consultative examination, he also noted such low scores would be impossible for
Plaintiff, who reported being engaged in semi-skilled work and obtaining her high school
diploma. (Id.) The ALJ recounted the vocational expert’s uncontradicted testimony that “no one

4

ALJ Davenport noted the paragraph D criteria of Listing 12.05 are used to determine the severity of
mental impairments at Steps 2 and 3, whereas a more detailed assessment of a claimant’s mental residual
functional capacity is required at Steps 4 and 5. (Doc. 9-3, p. 66.) ALJ Davenport’s assessments of
Plaintiff’s meeting the criteria of paragraphs A, B, and C speak to Plaintiff’s residual functional capacity.
The Court has grouped the ALJ’s findings as to Listing 12.05 under this Section, except as necessary to
discuss in Section V of this Report.

8

with a valid IQ score of 53 could work successfully at either the retail stocker work or the
[certified nursing assistant] job[.]” (Id. at p. 66.) Moreover, the ALJ noted a psychological
consultative examination in which the examiner rated Plaintiff as having a borderline intellect
after commenting Plaintiff did not present herself as a person with developmental disability.
(Id.) Finally, the ALJ determined Plaintiff did not meet the “paragraph C” criteria because she
did not have valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other
mental impairment resulting in an additional and significant work-related limitation.
ALJ Davenport’s determination that Plaintiff did not meet Listing 12.05 is supported by
substantial evidence. The ALJ looked at the areas of functioning for diagnostic criteria set forth
for Listing 12.05 and determined Plaintiff did not meet those criteria based on the evidence of
record. Of particular note is ALJ Davenport’s observation that Plaintiff’s work history involving
jobs at the semi-skilled level does not comport with a finding of an intellectual disability. (Doc.
9-3, p. 66.) In short, Plaintiff fails to meet her burden of presenting evidence of an intellectual
disability coupled with the limitations associated with Listing 12.05. This enumeration of error
is without merit.
V.

Whether Substantial Evidence Supports the ALJ’s Residual Functional Capacity
Plaintiff asserts the ALJ did not develop the record adequately in determining she has the

residual functional capacity to perform a full range of work at all exertional levels but limited to
simple, relatively repetitive work. Plaintiff avers ALJ Davenport gave great weight to Dr. David
Faulk’s opinion, yet the ALJ did not recognize that Dr. Faulk’s opinion “was grossly inconsistent
with his clinical findings[,] and [he] did not seek clarification from Dr. Faulk” as to those
inconsistencies. (Doc. 11, p. 18.) In addition, Plaintiff contends the ALJ gave great weight to
Dr. Roth’s opinion, yet Dr. Roth indicated that Plaintiff’s treating physician should substantiate

9

Plaintiff’s statements. (Id. at p. 19.) Plaintiff maintains that, had the ALJ sought clarifying
information from Dr. Faulk, a more restrictive functional capacity finding “could” have
occurred. (Id. at p. 20.)
Defendant responds the ALJ considered the medical evidence, as well as Plaintiff’s
testimony and subjective complaints of symptoms to determine Plaintiff’s residual functional
capacity. Defendant notes that, although an ALJ has a basic duty to develop a full and fair
record, this duty elevates to a special duty only when a claimant has not waived the right to
counsel and is unfamiliar with hearing procedures. Defendant contends this was not the case
here, as Plaintiff was represented during the hearing. (Doc. 13, p. 12.) Defendant avers the ALJ
would be under no duty to re-contact Plaintiff’s treating physician if this case were to be
remanded, as such a decision lies within the ALJ’s discretion.
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,
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).
In finding that Plaintiff had the residual functional capacity to perform a full range of
work at all exertional levels, but limited to simple, relatively repetitive work, the ALJ stated he
considered all symptoms and the extent those symptoms could reasonably be accepted as
consistent with the objective medical evidence and other evidence of record. (Doc. 9-3, p. 67.)
ALJ Davenport found the medical evidence revealed Plaintiff’s history of depression and

10

borderline intellectual functioning. (Id. at p. 63.) However, the ALJ determined Plaintiff’s
allegations as to the intensity, persistence, and limiting effects of her symptoms were not in
agreement with the evidence of record. (Id. at p. 68.)
The ALJ looked to Dr. John Malbourg’s treatment notes, which stated that Plaintiff was
diagnosed with depression following the birth of her child in 2008 and that her symptoms had
improved with Zoloft. (Id. at p. 64.) The ALJ noted that there was nothing of record in terms of
further treatment for depression until July 2010 when Plaintiff attended a consultative
examination with Dr. Marc Eaton and alleged she had mood swings, anger, irritability, and
depression. (Id.) Plaintiff was fully oriented with a depressed mood. Plaintiff had a full scale
IQ score of 53 upon testing, which placed her in the “extremely low range of intellectual
functioning.”

(Id.)

ALJ Davenport discounted this score, as it was inconsistent with her

education and her vocational history.
ALJ Davenport noted Plaintiff had another consultative examination in November 2011
with Dr. Kristiansson Roth, at which time Plaintiff reported suffering from crying spells, bipolar
disorder, and anger. Dr. Roth noted Plaintiff’s report of having graduated from high school
while in special education classes and her self-diagnosis of bipolar disorder based on her
symptoms. (Id.) ALJ Davenport posited that making such a diagnosis would be “clearly
impossible for anyone who truly is mentally retarded”, and he noted Dr. Roth’s statement that
Plaintiff did not present herself as a person with a developmental disorder. (Id.) Dr. Roth found
Plaintiff to be well-oriented, exhibited adequate concentration, and able to sustain attention and
focus to carry out goal-directed behaviors during examination. Dr. Roth diagnosed Plaintiff with
borderline intellectual functioning as a provisional diagnosis. (Id.; Doc. 9-7, p. 38.)

11

The ALJ noted Dr. David Faulk’s treatment of Plaintiff beginning in March 2012, at
which time Plaintiff reported depression symptoms with mood swings and racing thoughts,
having had a baby recently, and to being fearful of her aunt and uncle taking her baby. Upon
examination, Plaintiff was found to be fully oriented, with a severely depressed mood and
constricted affect. Plaintiff had normal thought processes and reported suicidal ideations and
anger. Plaintiff had limited insight and judgment but a normal memory. Dr. Faulk diagnosed
Plaintiff with major depressive disorder and prescribed Depakote, Fluoxetine, and Zyprexa. ALJ
Davenport observed the sparsity of follow up notes, but what few notes were in the record
revealed that Plaintiff had a good response to these medications. (Id.; Doc. 9-9, p. 21.)
ALJ Davenport stated his residual functional capacity assessment was supported by
Plaintiff’s longitudinal treatment record, the effectiveness of the treatment and medication
regimens, and the opinions of Dr. Faulk (her treating physician) and Dr. Roth (a consultative
examiner). (Doc. 9-3, p. 69.) The ALJ observed that no medical source opined Plaintiff was
unable to work, and he further observed that the State Agency physicians found Plaintiff’s
impairments were non-severe. However, the ALJ recognized that the credible medical sources
(Drs. Faulk and Roth) provided that Plaintiff had limitations in her ability to concentrate, which
is why he reduced her capacity to perform work. (Id.) Additionally, ALJ Davenport credited the
statements of Plaintiff’s stepfather, to the extent his statements revealed Plaintiff was capable of
personal hygiene demands, making simple meals, performing household chores, shopping with
assistance, and following television programs. (Id.)
The ALJ’s determination that Plaintiff maintained the residual functional capacity to
perform a full range of work at all levels is supported by substantial evidence. ALJ Davenport
looked at the objective medical and other evidence of record, as well as Plaintiff’s subjective

12

allegations. As the Commissioner noted, the ALJ did all that was required of him regarding
Plaintiff’s treating sources. (Doc. 13, p. 12.) This enumeration of error is without merit.
VI.

Whether Substantial Evidence Supports the ALJ’s Credibility Determination
Plaintiff asserts the ALJ failed to properly analyze her activities of daily living and “the

precipitating and aggravating factors of [her] symptoms.” (Doc. 11, p. 20.) Plaintiff alleges the
ALJ focuses on unsubstantiated statements she made which were the result of the ALJ’s leading
questions at the hearing. In addition, Plaintiff states the ALJ failed to consider Plaintiff’s use of
a walker and her testimony that she cannot stand on her feet for a long duration of time because
of her back pain.
Defendant avers ALJ Davenport explained his reasons for finding Plaintiff less than fully
credible, such as her subjective complaints being inconsistent with the medical record, her
extensive daily activities, her work history, and Plaintiff’s statements as to why she was not
working.

Further, Defendant notes the ALJ determined treatment had improved Plaintiff’s

symptoms. (Doc. 13, p. 15.)
In order to establish disability based on testimony of pain and other symptoms, a social
security disability benefits claimant must show: (1) evidence of underlying medical condition;
and (2) either (a) objective medical evidence confirming severity of alleged pain, or (b) that
objectively determined medical condition could reasonably be expected to give rise to claimed
pain. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). If a plaintiff “testifies as to
[her] subjective complaints of disabling pain and other symptoms, . . . the ALJ must clearly
‘articulate explicit and adequate reasons’ for discrediting the claimant’s allegations of
completely disabling symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(quoting Foote v. Chater, 67 F.3d 1553, 1561–62 (11th Cir. 1995)). “Although this circuit does

13

not require an explicit finding as to credibility, the implication must be obvious to the reviewing
court.”

Id. (internal citation omitted).

An ALJ’s credibility determination need not “cite

‘particular phrases or formulations’[,] but it cannot merely be a broad rejection which is ‘not
enough to enable [a reviewing court] to conclude that [the ALJ] considered [a plaintiff’s]
medical condition as a whole.’” Id. at 1210–11 (quoting Foote, 67 F.3d at 1561).
ALJ Davenport found Plaintiff’s testimony was not fully credible concerning the severity
of her symptoms and the extent of her limitations, as her symptoms and claimed limitations were
not supported by the record. Specifically, the ALJ noted Plaintiff alleged she had debilitating
depression and difficulties with learning that prevented her from working. However, the medical
evidence of record revealed that Plaintiff’s treatment for depression had been “relatively sparse”
and consisted of “primarily conservative medication management with no recommendations for
dedicated treatment, counseling, psychiatric hospitalizations, or other more aggressive treatment
options that would be expected for symptoms to the degree alleged.” (Doc. 9-3, p. 68.) ALJ
Davenport also noted Plaintiff’s claims of being unable to handle being around people was
“belied by her current abilities to shop, attend church every week, and also by her previous work
history in numerous jobs which involved significant interpersonal contacts[,]” despite no changes
in her medical records. (Id.) The ALJ noted Plaintiff’s claims that she is severely limited in her
intellectual abilities and unable to count to be contradicted by her previous work as a stock clerk
and certified nurse’s assistant, as well as her educational level. In addition, ALJ Davenport
observed that the vocational expert opined that an individual with an IQ of 53 could not perform
the jobs Plaintiff had without accommodation and that Dr. Roth observed that Plaintiff did not
present upon examination as a person with a developmental disorder. (Id.) Further, the ALJ
noted Plaintiff testified that she could not work due to lack of childcare, not due to her alleged

14

impairments. Moreover, ALJ Davenport stated Plaintiff’s extensive activities of daily living,
including caring for her three young children, cooking, performing household chores, and
attending church belie her claims of total disability. (Id.)
It is evident ALJ Davenport did not find Plaintiff’s allegations regarding disabling
conditions to be credible, as he found Plaintiff’s allegations to be contradicted by the record.
ALJ Davenport made specific credibility findings, and he considered Plaintiff’s medical history
as a whole. ALJ Davenport met the legal requirements as to his credibility findings, and Plaintiff
offers no valid reason why this Court should reject those findings. This enumeration of error is
without merit.
VII.

Whether Substantial Evidence Supports the ALJ’s Determination That Plaintiff
Could Return to her Past Relevant Work
Plaintiff maintains ALJ Davenport erred in failing to make specific and substantial

inquiry into the relevant physical and mental demands associated with her part relevant work.
(Doc. 11, p. 22.) Plaintiff contends this error “is striking” considering her significant mental
limitations and very low IQ and the ALJ’s reliance on vocational expert testimony based on a
mischaracterization of Plaintiff’s testimony. Plaintiff contends the hypothetical posed to the
vocational expert was incomplete, as it did not account for the ALJ’s determination that Plaintiff
had moderate limitations in concentration, persistence, and pace. (Id. at p. 24.)
Defendant responds that Plaintiff failed to carry her burden of proving she could not
perform her past relevant work.

Defendant avers the ALJ presented a comprehensive

hypothetical to the vocational expert, which was consistent with his residual functional capacity
findings, and the ALJ properly relied on the vocational expert’s testimony that Plaintiff could
perform her past relevant work. (Doc. 13, p. 19.) Defendant states that the ALJ’s determination
that Plaintiff had moderate limitations in concentration, persistence, and pace goes to her mental

15

impairments and is not an assessment of her residual functional capacity. (Id. at p. 20.) In
addition, Defendant states the ALJ acknowledged Plaintiff’s limitations in this area by reducing
her residual functional capacity to work with restrictions regarding simple, repetitive work. (Id.
at p. 21.)
To support a finding that the claimant is able to return to her past relevant work, the ALJ
must: (1) consider all the duties of that work and (2) evaluate the claimant’s ability to perform
them in spite of her impairments. Klawinski v. Comm’r of Soc. Sec., 391 F. App’x 772, 775
(11th Cir. 2010) (citing Lucas v. Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990)). A
claimant seeking disability benefits bears the burden of proving that she cannot perform her past
relevant work either as she performed it or as it is generally performed in the national economy.
20 C.F.R. §§ 404.1520(f), 404.1560(b)(3). “If the ALJ finds that the claimant cannot perform
the functional demands and duties of her past job as she actually performed it, he will consider
whether the claimant can perform the functional demands and duties of the occupation as
generally required by employers throughout the national economy.” Scharber v. Comm’r of Soc.
Sec., 411 F. App’x 281, 282 (11th Cir. 2011) (citing SSR 82–61, 1982 WL 31387 (1982)). The
ALJ may consider the testimony of a vocational expert in determining whether the claimant still
possesses the ability to perform her past relevant work. 20 C.F.R. § 404.1560(b)(2). “A
vocational expert is an expert on the kinds of jobs an individual can perform based on his or her
capacity and impairments.” Waldrop v. Comm’r of Soc. Sec., 379 F. App’x 948, 952 (11th Cir.
2010) (citing Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004)).
Here, the ALJ noted the vocational expert testified that Plaintiff’s job as a cleaner,
hospital was medium, unskilled work with a specific vocational preparation of 2, per the
Dictionary of Occupational Titles (“DOT”), and was performed as light work. (Doc. 9-3, p. 70.)

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Plaintiff’s work as a hand packager was medium, unskilled work with a specific vocational
performance of 2 under the DOT and performed as light work. Plaintiff’s job as a laborer was
heavy, unskilled work with a specific vocational preparation of 2 under the DOT and was
performed as light work. ALJ Davenport found that, assuming Plaintiff’s residual functional
capacity as he determined it, the vocational expert testified Plaintiff could perform the demands
of these jobs, whether as performed or as classified under the DOT. However, the vocational
expert testified that Plaintiff could not preform her past relevant work as a stock clerk, which
was heavy, semi-skilled work with a specific vocational preparation of 4, and performed as light
work. The ALJ stated that he compared Plaintiff’s residual functional capacity with the physical
and metal demands of the work as a cleaner, hospital; hand packager; and laborer, and found
Plaintiff was able to perform these jobs as actually and generally performed, as the vocational
expert testified. (Id.)
The ALJ’s determination that Plaintiff could return to her past relevant work as a cleaner,
hospital; hand packager; and laborer, as she actually performed these jobs, is supported by
substantial evidence. In reaching this determination, ALJ Davenport relied on the relevant
medical records, the testimony of the vocational expert and of Plaintiff, and other evidence of
record. This enumeration of error is without merit.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court AFFIRM the decision of the
Commissioner. I also RECOMMEND that the Court 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

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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. A party may not appeal a Magistrate Judge’s report and recommendation
directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made
only from a final judgment entered by or at the direction of 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 24th day of March,
2016.

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

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