United States District Court, S.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
Georgia Teacher 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
(“the Commissioner”) denying her claim for
Supplemental Security Income (“SSI”), based on
disability. 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. (Doc. 35
(“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, Teacher's brief, the
Commissioner's brief, and all other documents of record,
it is determined that the Commissioner's decision denying
benefits should be affirmed.
applied for SSI, based on disability, under Title XVI of the
Social Security Act (“the Act”), 42 U.S.C.
§§ 1381-1383d, on February 1, 2011. (Tr. 267). Her
application was denied on November 2, 2012. After exhausting
her administrative remedies (Tr. 67), Teacher sought judicial
review in this Court, pursuant to 42 U.S.C. §§
405(g) and 1383(c). (Doc. 1). Because the Commissioner was
unable to produce a transcript of Plaintiff's
administrative hearing, this Court remanded the case for
further administrative proceedings, pursuant to
“sentence six” of 42 U.S.C. § 405(g). (Docs.
11, 12). On remand, a new hearing was held before an
Administrative Law Judge (“ALJ”) (Tr. 1-33), and
by a decision dated June 20, 2015, the ALJ concluded that
Teacher was not disabled within the meaning of the Act. (Tr.
631-47). The ALJ's decision constitutes the
Commissioner's final decision for the purposes of
judicial review. See 20 C.F.R. § 416.1484(a).
February 26, 2016, the Court entered an order granting the
parties' consent motion to reopen the case. (Doc. 15).
The Commissioner filed an answer and the social security
transcript on May 25, 2016, and filed a supplemental social
security transcript on August 4, 2016. (Docs. 18, 19, 24). On
September 6, 2016, Teacher filed a brief in support of her
claim. (Doc. 28). The Commissioner filed her brief on
November 21, 2016. (Doc. 31). The parties waived oral
argument. (Docs. 34, 36). The case is now ripe for decision.
CLAIMS ON APPEAL
alleges that the ALJ's decision to deny her benefits is
in error for the following three reasons:
1. The ALJ's finding that Teacher's headache disorder
is a non-severe impairment is not supported by substantial
2. The ALJ failed to rebut the presumption regarding
Teacher's mental incapacity; and
3. The ALJ's mental residual functional capacity
assessment is not supported by the record as a whole, as he
erred in his evaluation of the opinion of an examining
(Doc. 28 at p. 2).
has alleged disability due to cystic fibrosis, chronic
asthma, lung disease, bipolar disorder, and depression. (Doc.
28 at p. 1). Before the ALJ, Teacher testified that she is
also disabled due to a headache problem. (Tr. 10). The ALJ
made the following relevant findings in his July 20, 2015
1. The claimant has not engaged in substantial
gainful activity since February 1, 2011, the application date
(20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments:
borderline intellectual functioning; asthma; and a mood
disorder, NOS (provisional) (20 CFR 416.920(c)).
Accordingly, the undersigned notes that a qualified physician
has either diagnosed or significantly documented the limiting
effects of the above-referenced impairments within the
medical evidence of record. Further, the undersigned finds
that the above impairments cause significant limitation in
the claimant's ability to perform basic work activities.
Thus, the claimant has impairments that are considered severe
pursuant to the regulations.
The claimant also has a number of non-severe impairments that
have been considered in concert with the severe impairments
to determine the claimant's residual functional capacity.
The claimant has history of alcohol abuse and a headache
disorder. At the previous hearing and decision, there was an
indication the claimant had cystic fibrosis, but at this
hearing Dr. Whatley, the medical expert, testified he had
reviewed the record and that it did not establish by
objective means that the claimant had cystic fibrosis, so he
did not assess it as an impairment. The indications of COPD
are here considered under Asthma, and the previous
indications of a major depressive disorder and an adjustment
disorder are here considered under the impairment of a mood
disorder, NOS, provisional, upon further consideration of the
* * *
In regards to her headache disorder, the evidence documents
several complaints of a headache; however, there is no actual
treatment for the disorder. In fact, most of her complaints
of a headache have resulted in a diagnosis of a sinus
infection. Her examinations have been unremarkable and there
is no evidence indicating she is on any pain narcotics or any
radiological and/or laboratory findings noting the severity
of the disorder. Therefore, the undersigned finds the
impairment has not significantly limited or is likely to
significantly limit the claimant's ability to do basic
work activities and is therefore non-severe.
3. The claimant does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and
The claimant's asthma does not meet or medically equal
the criteria of listing 3.03 because the evidence does not
indicate any chronic asthmatic bronchitis or attacks in spite
of prescribed treatment and requiring physician intervention,
occurring at least once every two months or at least six
times a year.
The severity of the claimant's mental impairments,
considered singly and in combination, do not meet or
medically equal the criteria of listings 12.02 and 12.04. In
making this finding, the undersigned has considered whether
the "paragraph B" criteria are satisfied. To
satisfy the "paragraph B" criteria, the mental
impairments must result in at least two 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. A marked limitation means more than
moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three
episodes within 1 year, or an average of once every 4 months,
each lasting for at least 2 weeks.
In activities of daily living, the claimant has mild
restriction. In a Function Report - Adult, the claimant
reported she can attend to her personal needs independently.
She reported she can prepare her own meals, shops in stores
for groceries, and clean her room sometimes. (Exhibit C5E).
This supports the claimant has no more than mild limitations
in this area.
In social functioning, the claimant has moderate
difficulties. In the aforementioned report, the claimant
reported she has a problem getting along with family,
friends, neighbors, and others; however, she reported she
spends time with others. She also reported she enjoys reading
and watching television and she goes to her kid's school
and the grocery store on a regular basis (Exhibit C5E). This
supports the claimant has no more than moderate limitations
in this area.
With regard to concentration, persistence or pace, the
claimant has moderate difficulties. In the aforementioned
report, the claimant reported she has problems completing
tasks, memorizing, concentrating, understanding, following
instructions, and getting along with others. However, she can
sustain the focused attention and concentration necessary to
permit the timely and appropriate completion of tasks
commonly found in simple routine and repetitive work
settings, but cannot do so in detailed or complex, work
settings (Exhibit C5E). This supports the claimant has no
more than moderate limitations in this area.
As for episodes of decompensation, the claimant has
experienced no episodes of decompensation, which have been of
Because the claimant's mental impairments do not cause at
least two "marked" limitations or one
"marked" limitation and "repeated"
episodes of decompensation, each of extended duration, the
"paragraph B" criteria are not satisfied.
The undersigned has also considered whether the
"paragraph C" criteria are satisfied. In this case,
the evidence fails to establish the presence of the
"paragraph C" criteria. … The claimant has
not had repeated episodes of decompensation, she has not had
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 her to
decompensate, and she does not have 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.
* * *
4. After careful consideration of the entire record,
the undersigned finds that this now 25-26 year old claimant
with a high school education has the residual functional
capacity to perform Light to Medium work as defined in 20 CFR
416.967(c), except that she can sit for a total of 6 hours,
without interruption for 1-2 hours, she can stand, and/or
walk for a total of six hours in an eight-hour workday, and
for 30 minutes to 1 hour without interruption. She can lift
and carry frequently 15 pounds and occasionally up to 30
pounds. She has no postural or manipulative limitations. She
should not be exposed to the [sic] concentrated or excessive
exposure to pulmonary irritants, such as dusts, odors, fumes,
humidity, and extremes of temperatures and the like. The
claimant is assessed with no more than mild to moderate pain,
which does not cause abandonment of task or of the work
station, and here mild and moderate are terms specifically
defined as not preventing the satisfactory completion of
work. However, in an abundance of caution due to her pain
complaints (headache history, etc.) and her mental issues, as
it may affect her concentration, persistence and pace, and
for social concerns, I find that she is limited to
semi-skilled and lesser work, to include unskilled, simple,
repetitive, and routine work, in jobs with no responsible or
regular general contact with the public, and any that occurs
must be brief and superficial. She should work in jobs where
she can work primarily alone, in jobs that would require
little independent judgment, and in jobs that have only
routine changes, with no multiple or rapid
changes. The claimant is borderline intellectual
functioning. See, Exhibit C 10 F, P. 3.
In making this finding, the undersigned has considered all
symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the
requirements of 20 CFR 416.929 and SSRs 96-4p and 96-7p. The
undersigned has also considered opinion evidence in