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Keith v. Colvin

United States District Court, S.D. Alabama, Southern Division

January 20, 2017

JOHN A. KEITH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          WILLIAM E. CASSADY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security denying his claims for disability insurance benefits and supplemental security income. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Docs. 20 & 21 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge conduct any and all proceedings in this case, . . . order the entry of a final judgment, and conduct all post-judgment proceedings.”).) Upon consideration of the administrative record, plaintiff's brief, the Commissioner's brief, and the arguments of counsel at the December 5, 2016 hearing before the Court, it is determined that the Commissioner's decision denying benefits should be affirmed.[1]

         Plaintiff alleges disability due to cervical degenerative disc disease by history, low back pain, and anxiety. The Administrative Law Judge (ALJ) made the following relevant findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2014.
2. The claimant has not engaged in substantial gainful activity since September 20, 2012 (20 CFR 404.1571 et seq., and 416.971 et seq.).
. . .
3. The claimant has the following severe impairments: history of cervical degenerative disc disease and low back pain (20 CFR 404.1520(c) and 416.920 (c)).
. . .
The claimant's medically determinable mental impairments of anxiety and history of drug dependence do not cause more than minimal limitation in his ability to perform basic mental work activities and are therefore nonsevere impairments.
Dr. Harrison, the claimant's primary care physician, diagnosed the claimant with anxiety. He has been prescribing the claimant Xanax for several years. He has not referred the claimant for mental health treatment and the claimant has not been seen by a psychiatrist, psychologist, counselor or other mental health specialist. The claimant has also not required inpatient psychiatric treatment. Dr. Harrison did not identify any functional limitations related to the claimant's anxiety.
Lucile T. Williams, Psy.D., a psychologist, evaluated the claimant on a consultative basis in February 2013. The claimant told Dr. Williams that he had been having anxiety attacks for ten years but that he thought he was bipolar. The attacks occurred every few hours and lasted two to three hours. During an attack, he wanted to hurt stuff and he would cuss and take things out on other people. Although Dr. Williams questioned the claimant “extensively” about his alleged anxiety attacks and bipolar disorder, he did not actually endorse any symptoms of anxiety or bipolar disorder. He described his mood as generally happy and only occasionally mad, which is inconsistent with having anxiety attacks every few hours. On exam, the claimant's affect was normal and he did not appear anxious. His mood seemed euthymic. His concentration, attention, and memory were all generally intact. He was able to subtract serial 3's, count backward from 20 to 1, work problems in change making/simple arithmetic, spell “world” backward, recall 5 digits forward and 4 digits backward, and recall 3 of 3 words immediately and 2 of 3 words after five minutes. The claimant's thought processes were also grossly intact. There were no loose associations, tangential or circumstantial thinking, he did not appear confused, conversation was normal, and there was no evidence of hallucinations, delusions, phobias, or compulsions. His insight and judgment were poor, however. Dr. Williams estimated the claimant's intelligence to be in the low average range. Dr. Williams diagnosed the claimant with Lortab and Xanax dependence. She did not identify any functional limitations related to the claimant's drug dependence or alleged anxiety or bipolar disorder but instead believed that the claimant would likely have a favorable response to treatment within the next six to twelve months. She also found that, while the claimant was cooperative, his statements appeared “questionable” and were a “naïve attempt to be seen in a worse light.” The undersigned gives significant weight to the examination findings and opinion of Dr. Williams, as they are well supported and consistent with the record as a whole, including Dr. Harrison's treatment records and the absence of any formal mental health treatment.
In making this finding that the claimant does not have a severe mental impairment, the undersigned has considered the four broad functional areas set out in the disability regulations for evaluating mental disorders and in section 12.00C of the Listing of Impairments. These four broad functional areas are known as the “paragraph B” criteria.
The first functional area is activities of daily living. In this area, the claimant has mild limitation. The claimant lives with and cares for his spouse, who is disabled and on dialysis. At the hearing, the claimant testified that he lives with his spouse and stepdaughter. He spends most of the day watching television but he is able to prepare simple meals, shop, and manage his finances. He is also able to care for his personal needs, as he presented to two separate consultative evaluations appropriately dressed and groomed. The claimant testified that he was in special education classes and that he cannot read or write very well . . . but there is no evidence in the record that he has a learning or intellectual disability. Dr. Williams estimated the claimant's intelligence to be in the low average range and he previously worked in semi-skilled and skilled occupations. He told Dr. Williams that he stopped working because of his alleged physical problems, not because of any intellectual limitations. Although the claimant reported some difficulties with activities of daily living, he attributed these difficulties to his alleged physical impairments, not anxiety or any other mental impairment. Dr. Veits found that the claimant has mild limitation in activities of daily living.
The next functional area is social functioning. In this area, the claimant has mild limitation. Although Dr. Veits, who did not treat or examine the claimant, found that the claimant has moderate limitations in social functioning due to his anxiety, this is not supported by the record. The claimant did not endorse any symptoms of anxiety or bipolar disorder during the consultative evaluation with Dr. Williams. Rather, he described his mood as generally happy and he did not appear anxious. She found that, while the claimant was cooperative, his statements appeared “questionable” and were a “naïve attempt to be seen in a worse light.” Dr. Williams did not identify any functional limitations in terms of the claimant's ability to interact appropriately with others. Dr. Sherman, who also evaluated the claimant on a consultative basis, diagnosed the claimant with anxiety based on his past history, but the claimant was calm during the evaluation and he maintained good eye contact and good subject focus. There is no evidence in the record that he had any difficulties interacting appropriately with Dr. Sherman or any other provider. Moreover, which the claimant reported being more comfortable at home and generally staying to himself, he denied having any problems getting along with family, friends, or neighbors and he is able to shop in stores and go to church. He indicated at one time that he had been fired or laid off from a job because of problems getting along with others but he also reported that he had not been laid off or fired from a job because of problems getting along with others.
The third functional area is concentration, persistence or pace. In this area, the claimant has mild limitation. Dr. Veits found the claimant has moderate limitations in concentration, persistence and pace but this is also not supported by the record. The claimant reported having difficulties paying attention, following instructions, handling stress, handling changes in routine, and needing reminders to take his medication; however, there is no evidence of any cognitive deficits or deficits in concentration or attention documented in Dr. Harrison's treatment records, who has been managing the claimant's anxiety for several years. The claimant exhibited good concentration, attention and memory during the consultative evaluation with Dr. Williams. He was also able to maintain good subject focus during the consultative evaluation with Dr. Sherman. Additionally, while the claimant testified that he was in special education and cannot read or write very well, there is no evidence in the record that he has a learning or intellectual disability that would affect his ability to maintain adequate concentration and attention. Dr. Williams, for example, estimated the claimant's intelligence to be in the low average range and he was able to work in semiskilled and skilled occupations. He reportedly stopped working because of his alleged physical impairments, not because of any intellectual or cognitive limitations or deficits in maintaining concentration or attention.
The fourth functional area is episodes of decompensation. In this area, the claimant has experienced no episodes of decompensation which have been of extended duration.
Because the claimant's medically determinable mental impairment causes no more than “mild” limitation in any of the first three functional areas and “no” episodes of decompensation which have been of extended duration in the fourth area, it is nonsevere.
The undersigned has nonetheless limited the claimant to unskilled work to allow for some, albeit mild, symptoms of anxiety, history of drug dependence, and fatigue (as diagnosed by Dr. Harrison).
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 the full range of medium, unskilled work as ...

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