IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

JEANNETTE L. PARKER,

Plaintiff,

vs. CASE NO. 1:11-cv-55-MP-GRJ

MICHAEL J. ASTRUE,

Commissioner of Social Security

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff appeals to this Court from a final decision of the Commissioner of Social

Security (the “Commissioner”) denying her application for supplemental security income

benefits (“SSI”). (Doc. 1). The Commissioner has answered (Doc. 10), and both

parties have filed briefs outlining their respective positions. (Docs. 13 and 14.) For the

reasons discussed below, the Commissioner’s decision is due to be AFFIRMED.

I. PROCEDURAL HISTORY

On January 9, 2007, Plaintiff protectively filed an application for supplemental

security income, alleging a disability onset date of April 19, 2007. (R. 90-96.) Plaintiff’s

application was denied initially on April 20, 2007 and upon reconsideration on

December 20, 2007. (R. 57-59, 61-63.) Plaintiff requested a hearing before an

Administrative Law Judge (“ALJ”), and the ALJ conducted Plaintiff’s administrative

hearing on October 5, 2009. (R. 29-51.) The ALJ issued a decision unfavorable to

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Plaintiff on February 3, 2010. (R. 14-24.) Plaintiff’s request for review of the hearing

decision by the Appeals Council was denied on February 24, 2011. (R. 1-5.) Plaintiff

then appealed to this Court. (Doc. 1.) 

II. FINDINGS OF THE ALJ

The ALJ found that Plaintiff had not engaged in substantial gainful activity since

her application date of January 9, 2007. He found at Step 2 of the sequential

evaluation that Plaintiff had the following severe impairments: asymptomatic human

immunodeficiency virus (HIV); hepatitis C; and a seizure disorder. (R. 19.) The ALJ

concluded, however, that Plaintiff’s mental impairments (alleged depression, memory

loss, PTSD) were not severe because: (1) the medical evidence fails to show the

presence of severe mental impairments; (2) Plaintiff has never received any psychiatric

or psychological treatment; (3) Plaintiff’s mental impairments impose only mild

functional limitations and no episodes of decompensation. (R. 19-20.) The ALJ found

that Plaintiff’s severe impairments or combination of impairments did not meet or

medically equal the Commissioner’s Listings because the medical evidence did not

support listing-level severity and no acceptable medical source mentioned findings

equivalent in severity to the criteria of any listed impairment. (R. 20-21.) The ALJ

concluded that Plaintiff had the residual functional capacity to perform the full range of

light work. (R. 23.) The ALJ concluded that Plaintiff was capable of performing her

past relevant work as an office worker, veterinarian assistant, cleaner, and

telemarketer, and that this past relevant work did not require the performance of workrelated activities precluded by the Plaintiff’s residual functional capacity. (R. 23-24.) 

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Accordingly, the ALJ concluded that Plaintiff had not been under a disability from

January 9, 2007 through the date of the administrative hearing. (R. 24.)

III. ISSUE PRESENTED

The issue presented by Plaintiff is whether the ALJ erred at Step 2 by finding

that Plaintiff’s mental impairments were non-severe. 

IV. STANDARD OF REVIEW

The Commissioner's findings of fact are conclusive if supported by substantial

evidence. Substantial evidence is more than a scintilla, i.e., the evidence must do more 1

than merely create a suspicion of the existence of a fact, and must include such

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

conclusion.2

Where the Commissioner's decision is supported by substantial evidence, the

district court will affirm, even if the reviewer would have reached a contrary result as

finder of fact, and even if the reviewer finds that the evidence preponderates against

the Commissioner's decision. The district court must view the evidence as a whole,

3

taking into account evidence favorable as well as unfavorable to the decision.4

See 42 U.S.C. § 405(g) (2000).

1

Foote v. Chater, 67 F.3d 1553, 1560 (11 Cir. 1995) (citing W alden v. Schweiker, 672 F.2d 835,

2 th

838 (11 Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842

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(1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11 Cir. 1991).

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Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 Cir. 1991).

3 th

Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11 Cir. 1992) (holding

4 th

that the court must scrutinize the entire record to determine reasonableness of factual findings); Parker v.

Bowen, 793 F.2d 1177 (11 Cir. 1986) (finding that the court also must consider evidence detracting from

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evidence on which the Commissioner relied).

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However, the district court will reverse the Commissioner's decision on plenary review if

the decision applies incorrect law, or if the decision fails to provide the district court with

sufficient reasoning to determine that the Commissioner properly applied the law.5

The law defines disability as the inability to do any substantial gainful activity by

reason of any medically determinable physical or mental impairment that can be

expected to result in death, or has lasted or can be expected to last for a continuous

period of not less than twelve months. The impairment must be severe, making 6

Plaintiff unable to do her previous work, or any other substantial gainful activity which

exists in the national economy.

7

The ALJ must follow five steps in evaluating a claim of disability. First, if a 8

claimant is working at a substantial gainful activity, he is not disabled. Second, if a 9

claimant does not have any impairment or combination of impairments which

significantly limit his physical or mental ability to do basic work activities, then he does

not have a severe impairment and is not disabled. Third, if a claimant's impairments

10

meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is

Keeton v. Dep’t Health and Human Servs., 21 F.3d 1064, 1066 (11 Cir. 1994).

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42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505 (2005) (All further references to 20 C.F.R.

6

will be to the 2005 version unless otherwise specified.).

42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

7

20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proving the existence of a

8

disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 Cir. 1991).

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20 C.F.R. § 404.1520(b).

9

20 C.F.R. § 404.1520(c).

10

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disabled. Fourth, if a claimant's impairments do not prevent him from doing past 11

relevant work, he is not disabled. Fifth, if a claimant's impairments (considering his 12

residual functional capacity (“RFC”), age, education, and past work) prevent him from

doing other work that exists in the national economy, then he is disabled.13

The burden of proof regarding the plaintiff’s inability to perform past relevant

work initially lies with the plaintiff. The burden then temporarily shifts to the 14

Commissioner to demonstrate that “other work” which the claimant can perform

currently exists in the national economy. The Commissioner may satisfy this burden

15

by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive

determination that a claimant is disabled or not disabled. 

16

However, the ALJ should not exclusively rely on the Grids when “the claimant

has a non-exertional impairment which significantly limits his or her basic work skills or

20 C.F.R. § 404.1520(d).

11

20 C.F.R. § 404.1520(e).

12

20 C.F.R. § 404.1520(f).

13

Walker v. Bowen, 826 F.2d 996, 1002 (11 Cir. 1987); see also Doughty v. Apfel, 245 F.

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3d 1274, 1278 (11 Cir. 2001).

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Doughty, 245 F.3d at 1278 n.2. In Doughty the court explained this burden shifting as follows:

15

In practice, the burden temporarily shifts at step five to the Commissioner. The

Commissioner must produce evidence that there is other work available in significant

numbers in the national economy that the claimant has the capacity to perform. In order

to be considered disabled, the claimant must then prove that he is unable to perform the

jobs that the Commissioner lists. The temporary shifting of the burden to the Commissioner

was initiated by the courts, and is not specifically provided for in the statutes or

regulations.) (Internal citations omitted).

Walker, 826 F.2d at 1002 (“[T]he grids may come into play once the burden has shifted to the

16

Commissioner to show that the claimant can perform other work.”).

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when the claimant cannot perform a full range of employment at the appropriate level of

exertion.” In a situation where both exertional and non-exertional impairments are 17

found, the ALJ is obligated to make specific findings as to whether they preclude a wide

range of employment.18

The ALJ may use the Grids as a framework to evaluate vocational factors so

long as he introduces independent evidence of the existence of jobs in the national

economy that the claimant can perform. Such independent evidence may be 19

introduced by a Vocational Expert’s (“VE”) testimony, but this is not the exclusive

means of introducing such evidence. Only after the Commissioner meets this burden

20

does the burden shift back to the claimant to show that he or she is not capable of

performing the “other work” as set forth by the Commissioner.

V. SUMMARY OF THE RECORD

A. Personal Background

Plaintiff was 33 years old at the time of the administrative hearing and decision.

(R. 33.) She completed her GED and some technical training for her veterinarian

assistant work. (R. 34.) She has worked as an office worker, veterinarian assistant,

cleaner, and telemarketer. (R. 23-24, 34.) She alleges disability due to Hepatitis C,

Wolfe v. Chater, 86 F.3d 1072, 1077 ( 11 Cir. 1996). See Jones v. Apfel, 190 F.3d 1224, 1229

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(11 Cir. 1999); W alker, 826 F.2d at 1003 (“The grids may be used only when each variable on the

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appropriate grid accurately describes the claimant’s situation.”).

W alker, 826 F.2d at 1003.

18

W olfe, 86 F.3d at 1077-78.

19

See id.

20

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HIV, epilepsy, memory problems, fatigue, body aches, rash, and recurrent urinary tract

infections. (R. 108, 145, 179.)

B. Mental Impairments

Medical records from the period of time prior to Plaintiff’s alleged onset date of

April 19, 2007 were reviewed by the ALJ. An initial psychological screening was

conducted on August 20, 2002 by the Department of Corrections. Plaintiff reported no

history of psychiatric hospitalization or psychotropic medications. She reported trouble

sleeping, nightmares, and crying daily “for hours.” She reported a history of daily crack

cocaine use from age 14 until her most recent arrest; she also reported that her mother

had recently been murdered. Referral for psychiatric evaluation was recommended. 

(R. 265-267.) A September 11, 2002 DOC service plan indicated diagnoses of

posttraumatic stress disorder, cocaine dependence, HIV positive, and adjustment to

incarceration. She reported a depressed mood manifested by crying spells, isolation,

nightmares, excessive sleepiness, apathy, and poor appetite. (R. 249-250.) On

October 11, 2003, Plaintiff reported improved appetite and reduction in nightmares,

isolation, crying spells, and apathy. (R. 248.) On January 17, 2003, Plaintiff reported

reduction in nightmares, isolation, and PTSD symptoms. She experienced crying spells

once a week. (R. 247.) On August 20, 2003, Plaintiff reported that her anxiety

symptoms were reduced. (R. 246.)

William E. Benet, Ph.D., Psy.D., performed a psychological evaluation and

consultative examination of Plaintiff on March 28, 2007. Plaintiff reported that she was

diagnosed with HIV at age 15 following a rape the year before, and that she continues

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to have nightmares about the assault. She reported feeling depressed “off and on” with

frequent crying spells and passive suicidal thoughts; she also reported feeling tired and

having memory problems. Plaintiff said she was treated for depression in prison in

2001-2003 with no mental health care since then. She reported a long history of crack

cocaine use resulting in imprisonment from 2001-2003 for cocaine possession as well

as several months in the Alachua County Jail during 2006 for cocaine possession. 

Plaintiff said that she has not worked since 2000 and now lives with her mother

and step-father in Old Town. She reported that she spends most of her time sleeping

but enjoys listening to music. She prepares meals, does chores, and attends to her

personal care needs. Dr. Benet’s mental status exam indicated that Plaintiff was alert,

oriented, and healthy looking and she was appropriately dressed and groomed with

good eye contact and normal gait and motor activity. Plaintiff was friendly and

cooperative but appeared sad and depressed. She was “very articulate” with organized

and goal-directed thinking, appropriate affect, and adequate attention and

concentration. Her short-term memory and verbal reasoning were average;

intermediate memory was fair. She had a poor fund of knowledge and her general

intellectual ability was estimated to be low-average to average. Her judgment and

insight were adequate. No psychological tests were administered.

Dr. Benet concluded that Plaintiff’s “clinical presentation and history suggest

chronic depression, cocaine dependence, reportedly in remission, and posttraumatic

stress disorder due to sexual abuse.” Her cognitive functioning was intact, with no

impairment in reasoning or memory. Dr. Benet opined that Plaintiff ‘should be able to

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perform work-related mental tasks involving understanding and memory, but is likely to

be moderately to severely limited in her ability to perform tasks involving sustained

concentration and persistence, social interaction, and adaptation due to chronic

depression and HIV-related symptoms.” He suggested diagnoses of depressive

disorder, PTSD, cocaine dependence (reportedly in sustained remission), and

personality disorder. He recommended psychiatric/medical treatment for depression

and PTSD. (R. 339-344.) 

Nancy Dinwoodie, M.D., completed a psychiatric review technique on April 10,

2007. She opined that Plaintiff’s mental impairments were not severe. Dr. Dinwoodie

indicated Plaintiff had mild limitations in activities of daily living, social functioning, and

maintaining concentration, persistence, or pace, with no episodes of decompensation. 

(R. 345-358.) 

Steven Wise, Psy.D., completed a psychiatric review technique on October 22,

2007. He opined that Plaintiff’s mental impairments were not severe. Dr. Wise

indicated Plaintiff had mild limitations in activities of daily living, social functioning, and

maintaining concentration, persistence, or pace, with no episodes of decompensation. 

(R. 389-402.) 

Eftim Adhami, M.D., conducted a consultative examination of Plaintiff on

December 12, 2009. He observed that Plaintiff’s mental status was normal in mood,

judgment, and expression. She understood questions and answers appropriately. (R.

473-474.)

Plaintiff completed three function reports demonstrating activities of daily living

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such as preparing meals, cleaning, laundry, caring for pets, attending for her personal

care needs, shopping, listening to music, playing cards, and going outside for brief

periods of time. She needs reminders from her mother about medications and finishing

things and her mother sometimes helps her with getting out of the tub and caring for her

hair. (R. 129-136, 150-157, 163-170.)

C. Hearing Testimony

Plaintiff was 33 years old at the time of the administrative hearing on October 5,

2009. Plaintiff testified that her name is Jeannette Leanne Dufortin and she lives in Old

Town, Florida. (R. 33.) She has her GED and did some technical training as a

veterinary assistant, although she cannot do that anymore. Plaintiff testified that

doctors told her she cannot work as a veterinary assistant because she is susceptible to

catching illnesses that animals carry. She testified that while in prison she did some

computer training. Plaintiff got out of prison in 2003. She was subsequently

incarcerated for less than a year at the Hillsborough County Jail and was released in

2006. (R. 34.) Plaintiff testified that she completed a drug program in jail and has not

used drugs since. Plaintiff was raped when she was 14 years old and about three

months later learned that she had contracted the HIV virus. (R. 35.) Plaintiff testified

that she has body aches, night sweats, and insomnia. Plaintiff testified that she gets

sick easily and also has headaches, diarrhea, nausea, and vomiting. Her headaches

occur every two days, lasting for 1-4 hours. She takes a Tylenol or tramadol and lays

down until the headache subsides. The tramadol was prescribed for her headaches

and body aches. (R. 36.) Plaintiff testified that her specialist told her she needed to cut

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back on the tramadol because it might induce seizures and she has a history of

seizures. Her seizures began after a 2001 car accident and she takes medication for

her seizure disorder. (R. 37.)

Plaintiff complained of daily fatigue and nausea almost every day. (R. 38.) She

testified that she has a lot of nightmares related to her rape as a teenager. (R. 39.) 

She does not spend time alone because she gets dizzy and worries that she might

have a seizure. Plaintiff testified that her fear of being alone also relates to her

depression. She also reported mood swings. (R. 40.) Plaintiff reported pain in lower

back and legs that can last most of a morning. 

Plaintiff lost her driver’s license after developing her seizure disorder but recently

had it restored. (R. 41.) She drives about once a week, a 20-minute roundtrip drive to

the store with her mother or uncle accompanying her. Plaintiff testified that a typical

day consisted of waking up, going to the bathroom, and taking her medicine. 

Sometimes she eats breakfast and then she watches television and when she starts to

experience pain she will lay down around lunchtime. After eating lunch that her mother

prepares, Plaintiff will do things around the house, such as laundry. (R. 42.) She naps

in the afternoon, wakes up for dinner, bathes, takes her medications, and goes to bed

again. 

Plaintiff testified that she was diagnosed in 2006 or 2007 that she had hepatitis

C. She gets liver ultrasounds every six months. Plaintiff complained of rashes as a

result of her night sweats as well as three incidents of shingles. (R. 43.) Plaintiff takes

Atripla for her HIV and Keppra for her seizure disorder. (R. 45.) She did take tramadol

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but has been told to stop taking it and might find an alternative at her next appointment. 

(R. 45.)

VI. Discussion

Plaintiff argues that the ALJ erred at Step 2 of the sequential evaluation by not

finding that Plaintiff’s depression and PTSD were severe impairments. At Step 2 in the

sequential evaluation, the ALJ found that Plaintiff’s HIV, hepatitis C, and seizure

disorder were severe impairments but that Plaintiff’s depression and memory problems

were not severe. (R. 19.) The ALJ’s conclusion that Plaintiff’s mental impairments

were not severe is supported by the substantial evidence of record.

 An impairment or combination of impairments is severe at Step 2 of the

sequential evaluation if it significantly limits one’s physical or mental ability to do basic

work activities. To be considered “severe” a medical condition must constitute more 21

than a “deviation from purely medical standards of bodily perfection or normality.”22

Thus, a diagnosis of “depression” does not necessarily compel the conclusion that the

condition is disabling. Although the threshold for meeting the definition of a “severe 23

impairment” at Step 2 is low, the burden is, nonetheless, on the Plaintiff to provide

evidence demonstrating the disabling impact of the mental impairments. The ALJ is 24

20 C.F.R. § 404.1520(c).

21

McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

22

20 C.F.R. §§ 404.1520(c), 416.920(c); see also Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir.

23

1986) (“[t]here must be a showing of related functional loss” for a psychological disorder to be considered

disabling).

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).

24

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required to evaluate Plaintiff’s mental impairments in four functional areas: activities of

daily living; social functioning; concentration, persistence, or pace; and episodes of

decompensation. If the degree of limitation in the first three functional areas is rated

25

as “none” or “mild” and “none” in the fourth area, the ALJ generally concludes the

mental impairment is not severe. 

26

The ALJ concluded that based on the totality of the evidence, Plaintiff had mild

restrictions in activities of daily living; social functioning; and concentration, persistence,

or pace. The ALJ found no episodes of decompensation. (R. 20.) Substantial

evidence supports the ALJ’s finding that Plaintiff’s mental impairments are not severe.

Other than evaluations while incarcerated in the Florida Department of

Corrections, the record reflects no psychiatric or psychological treatment. Plaintiff has

never received treatment for her alleged mental impairments with psychotropic drugs. 

During her March 28, 2007 evaluation by Dr. Benet, he found that: Plaintiff had good

eye contact; normal gait and motor activity; she was clear, coherent, and demonstrated

relevant speech that was “very articulate;” she was organized and goal-directed thinking

with accurate perceptions; she had adequate attention and concentration; she had

average short-term memory and fair intermediate memory; she had average verbal

reasoning; and she demonstrated adequate judgment and insight. Dr. Benet did note a

sad and depressed mood. (R. 341.) The ALJ concluded that Dr. Benet’s assessments

20 C.F.R. § 404.1520a(c)(3).

25

20 C.F.R. § 404.1520a(d)(1). See also Cuthbert v. Astrue, 303 F. App’x 697, 699 (11 Cir. 2008)

26 th

(per curiam).

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of depressive disorder, PTSD, personality disorder, and cocaine dependence in

remission were made absent any sustained mental health treatment or long-term

benefit of psychotropic medications. (R. 20.) Furthermore, Dr. Benet’s report was

made without conducting any psychological testing. (R. 339-344.) The ALJ concluded

that Dr. Benet’s suggested moderate to severe limitations with sustained concentration

and persistence and social interaction were inconsistent with the rest of the evidence of

record. (R. 19-20.)

The ALJ’s conclusion that Plaintiff had only mild restrictions in the first three

functional areas with no episodes of decompensation is supported by the findings of

state agency psychological experts. Dr. Dinwoodie and Dr. Wise each opined that

Plaintiff’s mental impairments were not severe and that she had only mild restrictions in

the first three functional areas with no episodes of decompensation. (R. 345-358, 389-

402.) During Plaintiff’s December 12, 2009 exam with Dr. Adhami, her mental status

examination revealed that she had normal mood, judgment, and expression. Further, it

was noted that Plaintiff understood questions and answered appropriately. (R. 473-

474.)

The evidence also discloses that Plaintiff carried out many daily living activities,

such as preparing food, shopping, caring for herself, caring for pets, shopping,

cleaning, and laundry. Plaintiff also reported enjoying listening to music, watching

television, playing cards, and going outside. She generally got along with authority

figures and maintained social contact with others. The restrictions reported by Plaintiff

in her function reports were generally related to physical pain, tiredness, and desire to

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avoid exposure to illness rather than mental impairments. (R. 129-136, 150-157, 163-

170.) 

The Court, therefore, concludes that the ALJ did not err in his determination that

Plaintiff’s mental impairments (depression, PTSD, memory loss) were not severe at

Step 2 and that the ALJ’s finding was supported by substantial evidence. As

substantial evidence supports the ALJ’s conclusion at Step 2, it is unnecessary to

address Plaintiff’s argument that the ALJ erred by not determining Plaintiff’s mental

RFC at Step 4.

VII. RECOMMENDATION

In view of the foregoing, it is respectfully RECOMMENDED that the decision of

the Commissioner be AFFIRMED. 

IN CHAMBERS in Gainesville, Florida this 13 day of February 2012.

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s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

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