The undersigned notes that Hughes previously filed applications for disability insurance 1

benefits and supplemental security income under Titles II and XVI of the Social Security Act;

those applications were denied initially. Tr. at 18. Hughes did not appeal those initial denial

determinations. Accordingly, those decisions are not subject to review in this action. The

undersigned further observes that a copy of those determinations does not appear in the record. 

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

RUBY HUGHES, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 1:06cv732-WC

)

MICHAEL J. ASTRUE, )

COMMISSIONER OF SOCIAL )

SECURITY, )

)

Defendant. )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Ruby Hughes (hereinafter Plaintiff or Hughes) applied for disability

insurance benefits and supplemental security income pursuant to Titles II and XVI of the

Social Security Act, 42 U.S.C. §§ 401, 1381 (2000), alleging that she was unable to work

because of a disability. Her applications were denied at the initial administrative level. 1

Hughes then requested and received a hearing before an Administrative Law Judge (ALJ). 

Following the hearing, the ALJ also denied the claims in part, awarding benefits for a

closed period of time and, subsequently, terminating her benefits. The Appeals Council

rejected a subsequent request for review. The ALJ’s decision consequently became the

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 1 of 14
 Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. 2

No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to

Social Security matters were transferred to the Commissioner of Social Security.

 A “physical or mental impairment” is one resulting from anatomical, physiological, or 3

psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques.

2

final decision of the Commissioner of Social Security (Commissioner). See Chester v. 2

Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the Court for review

under 42 U.S.C. §§ 405(g), 1631(c)(3). Pursuant to 28 U.S.C. § 636(c), both parties have

consented to the conduct of all proceedings and entry of a final judgment by the

undersigned United States Magistrate Judge. Pl.’s Consent to Jurisdiction ( Doc. #5);

Def.’s Consent to Jurisdiction (Doc. #6). Based on its review of the record and the briefs

of the parties, the Court reverses and remands the decision of the Commissioner.

II. STANDARD OF REVIEW

Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the

person is unable to

engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result

in death or which has lasted or can be expected to last for a continuous period

of not less than 12 months.

42 U.S.C. § 423(d)(1)(A).

To make this determination, the Commissioner employs a five step, sequential 3

evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2006).

(1) Is the person presently unemployed?

(2) Is the person’s impairment severe?

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 2 of 14
 McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case 4

(SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are

appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir.

1981) (Unit A).

3

(3) Does the person’s impairment meet or equal one of the specific

impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of

Impairments]

(4) Is the person unable to perform his or her former occupation?

(5) Is the person unable to perform any other work within the economy?

An affirmative answer to any of the above questions leads either to the next

question, or, on steps three and five, to a finding of disability. A negative

answer to any question, other than step three, leads to a determination of “not

disabled.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4

The Court’s review of the Commissioner’s decision is a limited one. This Court

must find the Commissioner’s decision conclusive if it is supported by substantial

evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). 

“Substantial evidence is more than a scintilla, but less than a preponderance. It is such

relevant evidence as a reasonable person would accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). A reviewing court may

not look only to those parts of the record which support the decision of the ALJ but

instead must view the record in its entirety and take account of evidence which detracts

from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir.

1986). 

[The court must] . . . scrutinize the record in its entirety to determine the

reasonableness of the [Commissioner’s] . . . factual findings . . . No similar

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 3 of 14
4

presumption of validity attaches to the [Commissioner’s] . . . legal

conclusions, including determination of the proper standards to be applied in

evaluating claims.

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). 

III. ISSUES

A. Introduction

Hughes was thirty-nine years old at the time of the hearing before the ALJ and had

completed eleven years of education as well as one year of business school. Tr. at 422. 

Hughes’s prior work experience includes work as a cashier, keyholder, waitress,

warehouse worker, manager, eye technician, telephone representative, and sales associate. 

Tr. at 89, 112, 422-23. Following the administrative hearing, the ALJ concluded that

Hughes had two severe impairments. Tr. at 35. He further found that from November

15, 2002, through September 26, 2003, Hughes was not disabled. Tr. at 37. But, he

awarded Hughes benefits for a closed period beginning September 27, 2003, through

November 8, 2004. Tr. at 37. In light of medical improvement in Hughes’ condition, the

ALJ terminated Hughes’ benefits beginning November 9, 2004, through April 26, 2005. 

Id.

B. Hughes’ Claims

Hughes presents two issues for review: (1) whether the ALJ’s finding of medical

improvement was supported by substantial evidence, and (2) whether the ALJ’s

credibility determination was supported by substantial evidence. Plf.’s Brief in Supp.

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 4 of 14
 Under the “Findings” section the ALJ notes “[t]here is no evidence that the claimant 5

engaged in substantial gainful activity since November 15, 2002, her alleged disability onset date.” 

Tr. at 35. He further notes that Hughes “engaged in an unsuccessful work attempt which ended

September 26, 2003.” Id.

5

Soc. Sec. Appeal (Doc. #14) at 10-15 (hereinafter Pl.’s Br.).

Employing the five step process, ALJ Murchison found that Hughes has not

engaged in substantial gainful activity since the alleged onset date (Step 1); has two 5

severe impairments, panic/anxiety disorder and chronic pain disorder (Step 2); the

impairments, considered individually and in combination, do not meet or equal in severity

any impairment set forth in the listings (Step 3); and Hughes cannot perform any past

relevant work because those jobs exceed her mental residual functional capacity (RFC)

(Step 4). Tr. at 35-36. Hughes had established her prima facie case. 

At Step Five, the ALJ states he evaluated Hughes’s mental and physical RFC and

also received testimony from a vocational expert regarding the availability in significant

numbers of other work Hughes could perform in the national economy. Upon

consideration of the record, including the vocational expert’s testimony, the ALJ

determined Hughes possessed the RFC to perform jobs that exist in significant numbers

in the national economy during the period November 15, 2002, through September 26,

2003. Tr. at 37. Consequently, the ALJ found Hughes was disabled during this period. 

Tr. at 37. Notwithstanding that determination, the ALJ found that during the period

beginning September 27, 2003, through November 8, 2004, Hughes could not perform

substantial gainful activity on a sustained basis. The ALJ accordingly found Hughes

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 5 of 14
6

entitled to disability benefits for this period. Tr. at 37. In light of improvement in

Hughes’ medical condition, and upon consideration of Hughes’ vocational background

and her RFC, beginning November 9, 2004, through April 26, 2005, the ALJ determined

Hughes possessed the RFC to perform jobs that exist in significant numbers in the

national economy and terminated her benefits. Id.

IV. DISCUSSION

A. Medical Improvement

The Court turns first to Hughes’ medical improvement argument. Hughes argues

that the ALJ’s decision her medical condition improved beginning November 9, 2004, is

unsupported by substantial evidence. Specifically, Hughes argues that the ALJ’s

conclusion is premised on her condition stabilizing, rather than improving or decreasing

in severity. Pl.’s Br. at 11. She also denies that increased supplies of medication and

longer intervals between doctor visits do not demonstrate improvement. Id. at 12. While

she concedes that her treating physician’s treatment “was limited to prescribing

medications,” Hughes further argues that she had always taken Xanax, a prescribed

medication for her anxiety, on as needed-basis, rather than on a prescribed schedule. Id.

at 12. Finally, Hughes argues that the ALJ failed to compare medical evidence of

Hughes’ condition from before November 9, 2004, to evidence from after that date. Id. at

10-11. She specifically maintains that the ALJ failed to compare Hughes’ condition on

November 9, 2004, to the opinions of a clinical psychologist from December 2003 and a

consultative psychiatrist from September 2004. Id. at 11. The Commissioner counter

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 6 of 14
“In a ‘closed period’ case, the decision maker determines that a new applicant for 6

disability benefits was disabled for a finite period of time which started and stopped prior to the

date of his decision.” Pickett v. Bowen, 833 F.2d 288, 289 n. 1 (11th Cir. 1987). 

7

argues that the ALJ’s decision is supported by substantial evidence. Def.’s Br. at 4-7. 

As indicated above, the ALJ’s disability determination involves three distinct time

periods. The first time period runs from November 15, 2002, through September 26,

2003. Hughes does not dispute the ALJ’s determination that she was not disabled during

this period. The second time period spans September 27, 2003, through November 8,

2004. Hughes, naturally, does not dispute the ALJ’s conclusion that she was disabled

during this period (emphasis added). The third time period runs from November 9, 2004,

to April 26, 2005, the date in which the ALJ rendered his decision. Tr. at 37. Hughes’

medical improvement argument disputes the ALJ’s decision to terminate benefits during

this third time period. 

The ALJ awarded benefits for the second time period only, a “closed period” of

disability. He subsequently decided to terminate those benefits, because he found that 6

Hughes’ panic/anxiety disorder had experienced a medical improvement. Tr. at 32-33. 

The ALJ found Hughes experienced a medical improvement sufficient to warrant the

denial of further disability benefits, because, in comparing the treatment notes of Kevin

Hornsby, M.D. (Dr. Hornsby), Hughes’ treating physician, from July 12, 2004, and

November 9, 2004, Hughes’ panic/anxiety disorder was “stable” on medication; Hughes

did not specifically complain about adverse medication side effects or panic attacks;

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 7 of 14
 The remainder of the analysis, though not relevant to the issue presented here, is as 7

follows: If medical improvement is shown through objective medical evidence, the Commissioner

next must compare the claimant’s current residual functional capacity to his residual functional

capacity at the time the claimant most recently was found to be disabled to determine whether the

medical improvement is related to the claimant’s ability to do work. 20 C.F.R. §§

416.994(b)(2)(ii-iii), (b)(5)(iv). If the claimant has experienced medical improvement related to

8

Hughes’ monthly maintenance appointments were changed to a quarterly basis; Hughes’

prescribed medications were increased in supply; Hughes complied with the schedule for

prescribed medications; and additional treatment notes following November 9, 2004,

through March 2005 do not indicate Hughes’ panic/anxiety syndrome “deteriorated or

returned to the previous level of severity.” Tr. at 30-33.

The Commissioner defines “medical improvement” as

any decrease in the medical severity of [the claimant’s] impairment(s)

which was present at the time of the most recent favorable medical decision

that [the claimant was] disabled or continued to be disabled. A

determination that there has been a decrease in medical severity must be

based on changes (improvement) in the symptoms, signs and/or laboratory

findings associated with [the claimant’s] impairment(s). 

20 C.F.R. § 404.1594(b)(1). In essence, the Commissioner’s regulations require (1) that

there be improvement in a claimant’s medical condition and (2) that the improvement

relate to the claimant’s ability to work. Id. 

In assessing whether there is medical improvement, the Commissioner must

compare the severity of the claimant’s current impairments to the severity of the

impairments when the claimant most recently was found to be disabled. 20 C.F.R. §

416.994(b)(1)(vii), (b)(2)(i). If there has been no decrease in medical severity, there has

been no medical improvement. 20 C.F.R. §§ 416.994(b)(5)(iii). The Court observes that 7

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 8 of 14
his ability to do work, the Commissioner then must determine whether the claimant’s current

impairments are severe. 20 C.F.R. § 416.994(b)(5)(vi). If the claimant’s current impairments are

not severe, the claimant is no longer disabled. Id. If the claimant’s current impairments are

severe, the Commissioner must then determine whether the claimant, based on his current residual

functional capacity, can perform his past relevant work. 20 C.F.R. § 416.994(b)(5)(vii). If so,

the claimant is no longer disabled. Id. If the claimant, based on his current residual functional

capacity, cannot perform his past relevant work, then the Commissioner must determine whether

the claimant, based on his age, education, work experience and current residual functional

capacity, is capable of performing other work. 20 C.F.R. § 416.994(b)(5)(viii). If so, the

claimant is no longer disabled; if not, the claimant’s disability will continue. Id.

9

this medical improvement standard applies to cases, such as here, involving a closed

period of disability. Pickett, 833 F.2d at 291-93; Waters v. Barnhart, 276 F.3d 716, 719

(5th Cir. 2002) (citing Shepherd v. Apfel, 184 F.3d 1196, 1200 (10th Cir. 1999); Jones v.

Shalala, 10 F.3d 522, 524 (7th Cir. 1993); Chrupcala v. Heckler, 829 F.2d 1269, 1274 (3d

Cir.1987) (“Fairness would certainly seem to require an adequate showing of medical

improvement whenever an ALJ determines that disability should be limited to a specified

period.”)). 

The ALJ heavily relied on a comparison of Dr. Hornsby’s treatment notes from

July 12, 2004, with those from November 9, 2004, to reach his medical improvement

conclusion. The July treatment notes provide that Hughes complained of increased

anxiety and episodes of heart racing and palpitations. Hughes’ panic/anxiety disorder

was assessed as “worsening” and “uncontrolled,” resulting in an increased dosage of

Zoloft. Tr. at 369. While the November treatment notes indicate that Hughes’

panic/anxiety disorder was assessed as stable on an increased dosage of Zoloft and

Hughes had “no complaints,” the note also explicitly indicates that “there has been no

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 9 of 14
The Court points out that four treatment notes do not list Xanax as a prescribed 8

medication. Tr. at 376, 379-81.

10

significant change from [her] last visit.” Tr. at 382. The record unequivocally indicates

that at Hughes’ last visit, her panic/anxiety disorder was “worsening” and “uncontrolled.” 

Dr. Hornby’s statement directly contradicts the ALJ’s conclusion that Hughes’ condition

decreased in severity. The ALJ cannot simply ignore this statement in his assessment of

the severity of Hughes’ panic/anxiety disorder on November 9, 2004. 

The ALJ also misstates the record. He provides that during the July visit, “it was

noted that increased symptomatology motivated the claimant to begin compliance with

her adjusted medication regimen.” Tr. at 32. He also states that Hughes “was taking

Xanax as prescribed, rather than on an as needed basis, as she had previously taken it.” 

Id. at 31. There is no evidence that Hughes did not comply with the prescribed schedule

for taking Xanax. Each treatment note from Dr. Hornsby which lists Xanax as a

prescribed medication instructs Hughes to take 0.5 milligrams every eight hours as

needed for nervousness. See generally Tr. at 350-53, 369, 377-78, 382. Although not 8

relied on by the ALJ, Hughes testified both that she takes Xanax when she needs it and

that she takes it every 8 hours. Tr. at 434, 437. This testimony is consistent with the July

treatment notes which indicate that Hughes was taking Xanax daily. Tr. at 369. 

Additionally, no adjustment was made to Hughes’ medication regimen for Xanax at the

November visit. Cf. Tr. at 382, with id. at 369.

Moreover, in examining Dr. Hornsby’s treatment notes from the closed period to

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 10 of 14
11

those after November 9, 2004, there is no consistent pattern to Hughes’ maintenance

appointments that suddenly changed on November 9, 2004. Cf. Tr. at 350 (providing no

set time frame in which Hughes should return), 351 (instructing Hughes to return to clinic

in one month), 369 (instructing Hughes to return to clinic in one month), with Tr. at 376,

378, 380 -81 (instructing Hughes to return to clinic in two weeks), 377 (instructing

Hughes to return to clinic in one month), 379, 382 (instructing Hughes to return to clinic

in three months). 

Last, the evidence of record during the closed period includes a psychological

evaluation conducted by David C. Ghostley, Psy. D., (Dr. Ghostley) and a psychiatric

evaluation conducted by Shakir R. Meghani, M.D., (Dr. Meghani). Dr. Ghostley opined

in December 2003 that Hughes’s prognosis was “excellent, provided she gets treatment in

the form of psychotherapy;” however, “[w]ithout adjunct psychotherapy, her mental

impairment is considered to be severe and highly limiting.” Tr. at 329. Dr. Meghani

opined that Hughes had “prominent” anxiety symptoms and diagnosed her with major

depressive disorder with anxiety symptoms. Tr. at 358-59. Dr. Meghani’s opinion was

issued in late September 2004, approximately two months prior to the ALJ’s determined

improvement point and two months after Dr. Hornsby indicated that her panic/anxiety

was worsening. Neither of these evaluations were included in the ALJ’s analysis of the

severity of Hughes’ panic/anxiety disorder during the closed period; the ALJ simply used

one treatment note from Dr. Hornsby in July 2004. In determining whether medical

improvement occurred, he was required to compare Hughes’ panic/anxiety disorder

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 11 of 14
12

during the closed period to that disorder after November 9, 2004. The ALJ cannot ignore

this evidence in his comparison. While the undersigned recognizes that the ALJ is not

required to specifically discuss every piece of evidence in the record, Dr. Ghostlely’s and

Dr. Meghani’s evaluations are particularly relevant to the determination whether a

medical improvement occurred, as they directly observed Hughes’ panic/anxiety disorder

during a time in which she was deemed disabled. Moreover, although Hughes chose to

seek medical care from Dr. Hornsby for her panic/anxiety disorder, her testimony

indicates that she could not afford to seek psychological or psychiatric treatment. Tr. at

434. And, Hughes conceded in her brief that Dr. Hornsby’s “treatment of her mental

impairments was limited to prescribing medication.” Cf. Newsome ex rel. Bell v.

Barnhart, 444 F. Supp. 2d 1195, 1198 n. 2 (M. D. Ala. 2006) (citing Ogranaja v.

Commissioner of Social Security, 2006 WL 1526062, at *3 (11th Cir. 2006)

(unpublished) (“We do not require the ALJ to ‘specifically refer to every piece of

evidence in his decision,’ so long as the decision is sufficient to allow us to conclude that

the ALJ considered the claimant’s medical condition as a whole.”); McCray v. Massanari,

175 F. Supp. 2d 1329, 1336 (M. D. Ala. 2001) (finding that the ALJ must consider all

medical evidence that is credible, supported by clinical findings, and relevant to the

question at hand, but is not required to discuss every piece of evidence submitted. 

Further, an ALJ’s failure to cite specific evidence does not indicate that such evidence

was not considered.)). Thus, the Court finds the ALJ’s reasons discussed above do not

support his medical improvement conclusion. 

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 12 of 14
In light of the above finding, the Court need not reach Plaintiff’s credibility issue at this 9

time. 

13

The ALJ provided three additional reasons in support of his medical improvement

decision: the November treatment notes indicate that Hughes did not complain about

adverse medication effects; the November notes also indicate that Hughes received an

increased supply of medication; and no subsequent treatment note indicated a

deterioration of her panic/anxiety condition. The Court finds, in light of the record as a

whole and, particularly, the discrepancies discussed above, this evidence does not

adequately support the ALJ’s conclusion that Hughes’ condition improved. Burress v.

Apfel, 141 F.3d 875, 880 (8th Cir. 1998) (concluding that the objective medical evidence

in the record failed to reveal any discrete improvement in claimant’s condition); Udero v.

Apfel, 1998 WL 487024 at *2 (10th Cir. Aug. 10, 1998) (unpublished) (indicating that

“the ALJ must identify specific medical evidence . . . which leads him to conclude the

claimant can perform substantial gainful activity” and citing Burress). Consequently, that

determination is not supported by substantial evidence. The Court accordingly remands

the ALJ’s medical improvement determination for further proceedings consistent with this

opinion. 

9

V. CONCLUSION

The Court has carefully and independently reviewed the record and concludes that

the decision of the Commissioner is unsupported by substantial evidence and is due to be

reversed and remanded for further proceedings consistent with this opinion. A separate

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 13 of 14
14

order will issue. 

DONE this 6th day of August, 2007.

/s/ Wallace Capel, Jr.

WALLACE CAPEL, JR.

UNITED STATES MAGISTRATE JUDGE

Case 1:06-cv-00732-WC Document 19 Filed 08/06/07 Page 14 of 14