IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

VANESSA L. SULLIVAN, *

 *

 Plaintiff, * CIVIL ACTION NO. 14-00009-B

 *

vs. *

 *

CAROLYN W. COLVIN, *

Commissioner of Social Security,*

* 

Defendant. *

ORDER

Plaintiff Vanessa L. Sullivan (hereinafter “Plaintiff”)

brings this action seeking judicial review of a final decision 

of the Commissioner of Social Security denying her claim for a 

supplemental security income under Title XVI of the Social 

Security Act, 42 U.S.C. §§ 1381, et seq. On October 22, 2014, 

the parties waived oral argument and consented to have the 

undersigned conduct any and all proceedings in this case. 

(Docs. 17, 18). Thus, the action was referred to the 

undersigned to conduct all proceedings and order the entry of 

judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule 

of Civil Procedure 73. Upon careful consideration of the 

administrative record and the memoranda of the parties, it is 

hereby ORDERED that the decision of the Commissioner be 

AFFIRMED. 

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I. Procedural History

Plaintiff filed an application for supplemental security 

income on June 16, 2010.1 (Tr. 167). Plaintiff alleged that she 

has been disabled since May 20, 2001, due to “seizures and 

arthritis.” (Id. at 167, 172). Plaintiff’s application was

denied, and upon timely request, she was granted an 

administrative hearing before Administrative Law Judge Thomas M. 

Muth II (hereinafter “ALJ”) on November 17, 2011. (Id. at 51). 

Plaintiff attended the hearing with her counsel and her 

daughter, and Plaintiff and her daughter provided testimony

related to her claims. (Id. at 51, 55, 68). A vocational 

expert (“VE”) also appeared at the hearing and provided 

testimony. (Id. at 72). On February 10, 2012, the ALJ issued 

an unfavorable decision finding that Plaintiff is not disabled. 

(Id. at 46). The Appeals Council denied Plaintiff’s request for 

review on November 15, 2013. (Id. at 1). Thus, the ALJ’s 

decision dated February 10, 2012 became the final decision of 

the Commissioner. 

Having exhausted her administrative remedies, Plaintiff 

timely filed the present civil action. (Doc. 1). The parties 

agree that this case is now ripe for judicial review and is 

 1 Plaintiff filed a prior application on November 27, 2001, and 

was awarded disability benefits on July 25, 2002, as a result of 

the severe impairments of a seizure disorder and osteoarthritis. 

(Tr. 89-93).

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 2 of 37
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properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 

1383(c)(3).

II. Issues on Appeal

A. Whether the ALJ erred in evaluating the 

opinions of consultative examiners, Dr. 

Keith Varden, M.D., and Dr. Kenneth 

Starkey, Psy.D.?

B. Whether the ALJ erred in evaluating the 

testimony of Plaintiff’s daughter 

regarding the frequency of Plaintiff’s 

seizures?

III. Factual Background 

Plaintiff was born on December 31, 1958, and was fifty-two

years of age at the time of her administrative hearing on 

November 17, 2011. (Tr. 51, 167). Plaintiff testified that she

completed the twelfth grade in high school. (Id. at 55). The 

record also shows that Plaintiff attended Bishop State Community 

College from 1991 to 1992 and from 1994 to 1995 and earned her 

Early Childhood Education Certificate.2 (Tr. 223). 

Plaintiff’s Work History Report shows that she last worked 

in the day care industry from 1995 to 2002 as a teacher. (Id. 

at 55, 179). Plaintiff also served as a “Program Director” for 

a daycare from 1995 to 1997. (Id. at 179). Plaintiff testified 

that she stopped working in 2002 because she began having 

 2 In her Disability Report, Plaintiff stated that she had not 

completed any type of specialized job training, trade, or 

vocational school. (Tr. 173).

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seizures on the job. (Id. at 56). She stated that she has 

consistently had seizures at a rate of three or four a month

since 2002, which makes her unable to work. (Id. at 56-57).

Plaintiff testified that she lives in a house with her 

seventy-six year old mother and that her daughter and her sister 

come over and do the housework, cooking, and grocery shopping.

(Id. at 59). Plaintiff stated that she has a driver’s license,

but she does not drive. (Id. at 59-60). According to 

Plaintiff, she gets up in the morning, gets dressed, watches 

television, reads, goes outside for a few minutes to get fresh 

air, and visits with friends who come over. (Id. at 60). She 

attends church two Sundays out of the month. (Id. at 65). 

Plaintiff reported that she can only stand for ten to

fifteen minutes, but she can walk for twenty minutes. (Id. at 

57-58). She also reported that she can sit for about ten 

minutes, and is able to lift five pounds. (Id. at 58, 67).

Plaintiff testified that she had surgery on her right 

shoulder in 2008 and still has pain which she rated as an eight 

on a ten-point pain scale. (Id. at 60-61). She also began 

having arthritis pain in her left hand in October 2011, for 

which she received a cortisone injection, which greatly improved 

her condition. (Id. at 61-62). 

Plaintiff’s medications include Norvasc and 

Hydrochlorothiazide (for high blood pressure), Trileptal (for 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 4 of 37
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seizures), Celebrex (for arthritis), Nexium (for acid reflux), 

Darvocet (for pain) and Zoloft (for depression). (Id. at 57,

63-64, 175). Plaintiff reported that the side effects from her

medications include dizziness, drowsiness, nausea, headaches, 

confusion, double vision, and hostility. (Id. at 67, 197). 

IV. Analysis

A. Standard of Review 

In reviewing claims brought under the Act, this Court’s 

role is a limited one. The Court’s review is limited to 

determining 1) whether the decision of the Secretary is 

supported by substantial evidence and 2) whether the correct 

legal standards were applied. 3 Martin v. Sullivan, 894 F.2d 

1520, 1529 (11th Cir. 1990). A court may not decide the facts 

anew, reweigh the evidence, or substitute its judgment for that 

of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th 

Cir. 1986). The Commissioner’s findings of fact must be 

affirmed if they are based upon substantial evidence. Brown v. 

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. 

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding 

substantial evidence is defined as “more than a scintilla, but 

less than a preponderance” and consists of “such relevant 

evidence as a reasonable person would accept as adequate to 

 3 This Court’s review of the Commissioner’s application of legal 

principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th 

Cir. 1987).

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support a conclusion.”). In determining whether substantial 

evidence exists, a court must view the record as a whole, taking 

into account evidence favorable, as well as unfavorable, to the 

Commissioner’s decision. Chester v. Bowen, 792 F. 2d 129, 131 

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4 

(S.D. Ala. June 14, 1999). 

B. Discussion 

An individual who applies for Social Security disability 

benefits must prove his or her disability. 20 C.F.R. §§ 

404.1512, 416.912. Disability is defined as the “inability 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); see also 20 C.F.R. §§ 

404.1505(a), 416.905(a). The Social Security regulations 

provide a five-step sequential evaluation process for 

determining if a claimant has proven his disability.4 20 C.F.R. 

 4 The claimant must first prove that he or she has not engaged in 

substantial gainful activity. The second step requires the 

claimant to prove that he or she has a severe impairment or 

combination of impairments. If, at the third step, the claimant 

proves that the impairment or combination of impairments meets 

or equals a listed impairment, then the claimant is 

automatically found disabled regardless of age, education, or 

work experience. If the claimant cannot prevail at the third 

step, he or she must proceed to the fourth step where the 

claimant must prove an inability to perform their past relevant 

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§§ 404.1520, 416.920. 

In the case sub judice, the ALJ determined that Plaintiff 

has not engaged in substantial gainful activity since June 16, 

2010, the alleged onset date, and that she has the severe 

impairment of depressive disorder, mathematics learning 

disorder, seizure disorder, impingement of the right shoulder 

status post arthroscopic surgery, venous insufficiency, plantar 

fasciitis, obesity, and radial styloiditis. (Tr. 38). The ALJ 

further found that Plaintiff does not have an impairment or 

combination of impairments that meets or medically equals any of 

the listed impairments contained in 20 C.F.R. Part 404, Subpart 

P, Appendix 1. (Id.).

The ALJ concluded that Plaintiff retains the residual 

functional capacity (hereinafter “RFC”) to perform light work, 

 

work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In 

evaluating whether the claimant has met this burden, the 

examiner must consider the following four factors: (1) objective 

medical facts and clinical findings; (2) diagnoses of examining 

physicians; (3) evidence of pain; and (4) the claimant’s age, 

education and work history. Id. Once a claimant meets this 

burden, it becomes the Commissioner’s burden to prove at the 

fifth step that the claimant is capable of engaging in another 

kind of substantial gainful employment which exists in 

significant numbers in the national economy, given the 

claimant’s residual functional capacity, age, education, and 

work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 

1985). If the Commissioner can demonstrate that there are such 

jobs the claimant can perform, the claimant must prove inability 

to perform those jobs in order to be found disabled. Jones v. 

Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. 

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v. 

Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

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with the following exceptions: “The [Plaintiff] can lift and/or 

carry ten pounds occasionally and items of negligible weight 

frequently. She can stand and/or walk for six hours and sit for 

six hours. She can occasionally perform pushing and/or pulling 

with the right upper extremity, perform frequent pushing and/or 

pulling with the left upper extremity, and perform frequent 

pushing and/or pulling with the lower extremities bilaterally. 

The [Plaintiff] can perform frequent balancing, frequent 

stooping, occasional kneeling, occasional crouching, no 

crawling, and occasional climbing of ramps and stairs. The 

[Plaintiff] can perform no climbing of ladders, ropes and 

scaffolds. The [Plaintiff] can perform no overhead reaching

with the right arm. The [Plaintiff] can perform frequent 

reaching in other directions with the right arm. The 

[Plaintiff] has unlimited reaching with the left arm. The 

[Plaintiff] can perform frequent handling, bilaterally. The 

[Plaintiff] can perform frequent fingering with the left hand. 

The [Plaintiff] has unlimited fingering with the right hand.

The [Plaintiff] can frequent[ly] perform feeling, bilaterally. 

The [Plaintiff] can perform work that requires no more than 

occasional exposure to extreme heat and occasional exposure to 

extreme cold. She must avoid all exposures to unprotected 

heights and dangerous machinery. The [Plaintiff] cannot work in 

close proximity to unprotected bodies of water. The [Plaintiff] 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 8 of 37
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could perform no commercial driving. The [Plaintiff] would have 

one unplanned absence per month. The [Plaintiff] could perform 

[work] involving simple routine tasks and short, simple

instructions. The [Plaintiff] could perform work involving only 

simple work-related decision[s] with few work place changes. 

The [Plaintiff] would be able to perform work that involves no 

more than non-transactional and occasional interaction with the 

public. She can sustain concentration and attention for twohour periods with customary breaks.” (Id. at 40). The ALJ also 

determined that while Plaintiff’s medically determinable 

impairments could reasonably be expected to produce the alleged 

symptoms, her statements concerning the intensity, persistence 

and limiting effects of the alleged symptoms were not credible 

to the extent described. (Id. at 43).

Given Plaintiff’s RFC, the ALJ found that Plaintiff is 

unable to perform any past relevant work. (Id. at 44). 

However, utilizing the testimony of a VE, the ALJ concluded that 

considering Plaintiff’s residual functional capacity for a range 

of light work, as well as her age, education and work 

experience, there are also other jobs existing in the national 

economy that Plaintiff is able to perform, such as “food 

preparation worker” (light and unskilled), “storage facility 

clerk” (light and unskilled), and “order clerk” (sedentary and 

unskilled). (Id. at 45). Thus, the ALJ concluded that 

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Plaintiff is not disabled. (Id. at 46). 

In assessing the Plaintiff’s RFC, the ALJ also made the 

following relevant findings: 

In a Disability Report, the claimant states 

she is disabled from arthritis and seizures. 

The claimant indicates she stands five feet 

eight inches and weighs two-hundred twenty 

pounds. The claimant indicates she stopped 

working on May 1, 2001, because of other 

reasons. She kept having seizures on the 

job; therefore, she quit working on May 1, 

2001. She indicates that she completed the 

twelfth grade. The claimant states she has 

not completed any type of specialized job 

training, trade, or vocational school. The 

claimant state[s] she worked as a childcare 

worker at a day care from 1995 to 2001. The 

claimant indicates that she lifted and 

carried children that weigh between twentyfive pounds and fifty pounds (Exhibit B4E). 

On July 27, 2010, the claimant in a 

Questionnaire for Description of Seizures 

and treatment for seizures notes she has 

been having seizures since 2001. When asked 

to give the date of the last three seizures, 

the claimant named 2010. The claimant 

reports that she had twelve seizures or 

more. The claimant states that she blacks 

out; however, she does not experience 

unconsciousness. If a seizure is coming 

on, the claimant state[s] she gets quiet[,]

gets headaches, day [d]ream[s] and [makes] 

noise with [her] mouth. The claimant states 

she does not chew the tongue, but she has 

jerking motion of the arms and legs. The 

claimant notes she loses control of her 

bladder. After an attack, she notes that 

she goes to sleep. After an attack, the 

claimant states she feels tired for fortyfive to sixty minutes. The claimant states 

she takes Tegretol for seizures. The 

claimant states she has side effects of 

dizziness, drowsiness, nausea, headache, 

confusion, double vision, and hostility. 

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She gets her medicine refilled every three 

months. She sees Dr. Salter for seizures 

and last saw him in May 2010. She reports 

she underwent magnetic resonance imaging and 

CT in 2009. The claimant reports she does 

not drink beer, whiskey or alcohol in any 

form (Exhibit B7E).

The medical evidence of record for the 

period at issue, June 16, 2010, the date of 

the application for supplemental security 

income, discloses:

With regard to the alleged right shoulder 

problems and arthritis, the medical evidence 

shows that in July 2008, the claimant 

underwent arthroscopy of her right shoulder, 

arthroscopic acromioplasty, and distal 

clavicle excision. J. Michael Cockrell, 

M.D., performed the arthroscopic 

procedures. On July 18, 2008, Dr. Cockrell 

notes the claimant still has trouble with 

her right shoulder. The magnetic resonance 

imaging reveals AC impingement and 

tendinitis. At that point, the claimant 

opted for arthroscopic decompression 

(Exhibit Bl2F, p. 3-4). X-rays showed some 

degenerative changes of osteoarthritis but 

no significant focal arthritic problem such 

as thumb CMC arthritis. Both of these areas 

were injected with Celestone-1-ml (Id., p. 

1). On October 11, 2011, Dr. Ben Freeman 

diagnosed the claimant with radial 

styloiditis vs. Dequervain’s tenosynovitis 

(Id., p. 1).

With regards to the alleged seizures, the 

medical evidence shows that on September 15, 

2010, Keith Varden, M.D., reports that the 

claimant is a fifty-one year-old female who 

presents with complaint seizures. Dr. 

Varden indicates she has osteoarthritis of 

her legs and all over and she has been off 

work from teaching since 2001. The claimant 

told Dr. Varden that her last seizure was 

two weeks ago. Dr. Varden notes the 

claimant moves all extremities and has 

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muscle strength of 5/5, equal bilaterally. 

Dr. Varden notes the claimant squats to 

about fifteen degrees. Her gait is slow, 

but it is within normal range. Vision is 

20/25. Dr. Varden diagnosed the claimant 

with seizure disorder. He noted that these 

are not well controlled despite being on 

anti-epileptics, having had seizures within 

the last two or three weeks. He reports the 

seizure disorder would put her at increased 

risk for work-related activities currently. 

Dr. Varden opines that until these can be 

better controlled, he would consider her 

disabled from normal work-related 

activities, sitting, standing, walking,

carrying objects, traveling, and driving, 

which would most likely impair her abilities 

or put her at risk for most work-related 

activities (Exhibit B7F).

With regards to venous insufficiency, I find 

that Victor[y] Health Center records show 

that on September 10, 2010, the claimant was 

examined for right leg swelling of one year 

with pain in the right heel. Dr. Lightfoot 

diagnosed the claimant with hypertension, 

venous insufficiency, and plantar fasciitis 

(Exhibit B6F, p. 2). On December 20, 2010, 

the claimant was examined for earaches. 

Notes disclose the claimant has swelling of 

the feet - venous insufficiency better when 

she wears hose (Exhibit 8F, pp. 3-5). On 

January 21,2011, the claimant received a 

well check (Id., p. 1). Records from 

Victory Health Center, on April 28, 2011, 

show claimant was seen for medication 

refills. [She] ran out of Norvasc-10-mg for 

hypertension along with Zoloft. Notes 

disclose a co-morbid disease of seizure 

disorder with no seizure activity while on 

Trileptal. The claimant was diagnosed with 

hypertension, not at goal, seizure disorder 

controlled, and obesity. Lab records show 

total cholesterol was high at 294 on May 5, 

2011 (Id., p. 3). On September 27, 2011, 

notes disclosed the claimant was seen with 

pain in her left shoulder and wrist. Dr. 

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Lightfoot diagnosed the claimant with C4-

hand and wrist tenosynovitis, hypertension 

under poor control and compliance, 

depression, and seizures. 

There is (sic) treatment evidence does not 

support an inference that the claimant would 

have more than one seizure per month that 

would interfere with work (Exhibits B6F, 

Exhibit B8F, Exhibit B10F and Exhibit B13F). 

The residual functional capacity includes 

seizure precautions.

With regards to a depressive disorder and 

mathematics learning disorder, the medical 

evidence shows that on September 1, 2010, 

Kenneth R. Starkey, Psy.D, examined the 

claimant. Dr. Starkey notes that symptoms 

of depression appeared in partial remission, 

at the time of the meeting. Treatment for 

her reported problems with seizures and 

depression has been limited to 

pharmacotherapy. She has never received 

outpatient counseling for problems with 

depression. With regards to work-related 

activities, Dr. Starkey notes the claimant 

reports prevailing seizures make it 

difficult to perform work duties. Dr. 

Starkey notes that her mother raised the 

claimant and her father died when she was 

eleven years old. Dr. Starkey indicates the 

claimant completed the twelfth grade in 

school. Dr. Starkey reports the claimant is 

presently unemployed, and she last worked 

full time as a teacher for the Open Door Day 

Care for six months until 2001. Dr. Starkey 

notes her husband and grandchildren 

accompanied the claimant. She was able to 

focus and sustain attention, but with mild 

and intermittent distraction from extraneous 

stimuli. She struggled to complete the 

serial three’s task without error, but 

accurately spelled WORLD backwards. She 

states three plus four equal seven, but she 

was unable to compute $1.00 minus >.17 

(seemingly due to computation 

difficulties). Dr. Starkey reports there 

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was evidence of flight of ideas, tangential 

thinking, or loosening of associations. 

Intellectual function was estimated to be in 

the low average to borderline range. Dr. 

Starkey opines that her ability to focus and 

sustain attention and for immediate memory 

appear limited. She reports both trials of 

only four digits verbally presented in 

random fashion, and both trials of only 

three digits randomly presented in reverse 

order. She accurately recalled only three 

of three objects verbally presented 

following a ten-minute delay. With regards 

to remote memory, the claimant reports

employment and school dates with mild 

difficulty. Her fund of knowledge appears 

somewhat limited. She incorrectly reports 

the number of weeks in a year to be twohundred and sixty-five. Dr. Starkey opined 

that her insight and judgment appeared 

limited. Dr. Starkey diagnosed the claimant 

with Depressive Disorder-partial remission, 

mathematics disorder, and a current global 

assessment of sixty-five. Dr. Starkey 

opines that the claimant’s progress appears 

guarded to fair (from psychological 

perspective). Some additional improvement 

of existing mild depressive symptoms might 

occur over the next six months with more 

formal psychiatric care and the addition of 

weekly counseling. Dr. Starkey opined that 

the claimant’s ability to understand, 

remember, and carry out simple and concrete 

instructions appear adequate. Her ability 

to work independently (vs. with Close 

Supervision) also appear adequate now. Her 

ability to work with supervisors, co-workers 

and public appears adequate. Her ability to 

work with pressures common to most every day 

work settings is marginal (Exhibit B3F). On 

September 2, 2010, Ellen N. Eno, Ph.D., in a

Psychiatric Review Technique, opined that 

the claimant reports difficulty with sleep; 

she is able to take care of her personal 

needs with few modifications for mild 

restriction of activities of daily living. 

Dr. Eno notes that claimant often visits 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 14 of 37
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others by phone and in person for a mild 

functional limitation in difficulties 

maintaining social interaction. Dr. Eno 

notes the claimant occasionally forgets to 

take prescribed medications and shops for 

two-hour intervals, and is able to drive 

when allowed due to her seizures. Dr. Eno 

notes that her attention span varies and she 

does not usually complete tasks that she 

starts, which are the source of a moderate 

difficulties in maintaining concentration, 

persistence, or pace. Dr. Eno notes that 

the claimant does not handle stress well, 

but she is able to accept changes and she 

reports depression and cries a lot (Exhibit 

B4F, p. 11). By moderate, Dr. Eno means 

that the claimant has the ability to 

understand, remember, and carry out very 

short and simple instructions, as she could 

attend for two-hour intervals (Exhibit B5F, 

p. 3).

...

Dr. Varden diagnosed the claimant with 

seizure disorder, not well controlled 

despite being on medication, having had 

seizures with[in] the last two or three 

weeks. He also stated these seizures would 

put the claimant at increased risk for workrelated activities currently. Dr. Varden 

opines that until these are better 

controlled, he would consider her disabled 

from normal work-related activities. This 

opinion concerning the claimant’s capacity 

to work is not consistent with other medical 

evidence of record regarding the lack of a 

psychologically medically determinable 

impairment and is inconsistent with the 

other medical evidence of record.

As for the opinion evidence, the residual 

functional capacity in Exhibit B5F and PRTF 

in Exhibit B4F [both completed by Dr. Eno] 

are generally consistent with the other 

credible medical evidence of record and 

thus, merits significant weight. The 

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opinions in Exhibit B3F [completed by Dr. 

Starkey] are consistent with the other 

credible medical evidence and, thus, merit 

significant weight. The opinion in Exhibit 

7F [completed by Dr. Varden] consultative 

examination opinion concerning the 

claimant’s capacity to work is not 

consistent with other medical evidence of 

record and thus, merits substantial but not 

significant weight. The Consultative 

examination report is not consistent with 

the other medical evidence of record 

regarding the lack of a psychological 

medically determinable impairment. Thus, 

it merits no substantial weight.

In sum, the above residual functional 

capacity assessment is supported by Dr. 

Ellen Eno in Exhibit B4F and B5F, as they 

are consistent with the other credible 

medical evidence, and, thus, merit 

significant weight. The opinion in Exhibit 

B7F by K. Keith Varden, M.D., consultative 

examination opinion concerning the 

claimant’s capacity to work is not 

consistent with the other medical evidence 

of record and, thus, merits substantial but 

not significant weight. The consultative 

examination report is not consistent with 

the other medical evidence of record 

regarding the lack of a psychological 

medically determinable impairment. Thus, 

it merits no substantial weight.

(Id. at 41-44). The Court now considers the foregoing in light 

of the record in this case and the issue on appeal. 

1. Issue

A. Whether the ALJ erred in evaluating 

the opinions of consultative examiners, 

Dr. Keith Varden, M.D., and Dr. Kenneth 

Starkey, Psy.D.? 

Plaintiff argues that the ALJ erred in rejecting the 

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opinions of consultative examiners, Dr. Keith Varden, M.D., and 

Dr. Kenneth Starkey, Psy.D, regarding the severity of her 

seizure disorder, and adopting the opinion of State Agency 

reviewing psychologist, Dr. Ellen Eno, Ph.D. (Doc. 14 at 2). 

The Commissioner counters that the ALJ properly weighed all of 

the medical opinions at issue, considering their consistency, or 

lack thereof, with the medical evidence of record, and that the

ALJ’s RFC determination is supported by substantial medical 

evidence in the record. (Doc. 15 at 2-6). Having reviewed the 

record at length, the Court agrees that Plaintiff’s claims are 

without merit.

Residual functional capacity is a measure of what Plaintiff 

can do despite his or her credible limitations. See 20 C.F.R. § 

404.1545. Determinations of a claimant’s residual functional 

capacity are reserved for the ALJ, and the assessment is to be 

based upon all the relevant evidence of a claimant’s remaining 

ability to work despite his or her impairments, and must be 

supported by substantial evidence. See Beech v. Apfel, 100 F. 

Supp. 2d 1323, 1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 

404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 

1997)); Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10, 

2012 WL 997222, *4 (M.D. Ala. March 23, 2012). Once the ALJ has 

determined the Plaintiff’s residual functional capacity, the 

claimant bears the burden of demonstrating that the ALJ’s 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 17 of 37
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decision is not supported by substantial evidence. See Flynn v. 

Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985). Plaintiff has 

failed to meet her burden in this case.

As previously stated, the ALJ concluded that, although

Plaintiff has the severe impairments of seizure disorder, 

depressive disorder, mathematics learning disorder, impingement 

of the right shoulder status post arthroscopic surgery, venous 

insufficiency, plantar fasciitis, obesity, and radial 

styloiditis, she is not disabled. (Tr. 38). In making this 

determination, the ALJ relied upon Plaintiff’s medical records

from her treating physicians, the report of consultative 

psychological examiner Dr. Kenneth Starkey, Psy.D., the report 

of State Agency reviewing psychologist Dr. Ellen Eno, Ph.D., and 

the Plaintiff’s testimony. (Id. at 41-44). As the ALJ found, 

this evidence confirms that Plaintiff’s medical conditions, 

while significant, are not disabling in nature.5 

To support her claim on appeal that her seizure disorder 

and depression are disabling, Plaintiff argues that the ALJ 

erred in giving greater weight to the opinions of State Agency 

reviewer, Dr. Ellen Eno, Ph.D., 6 than those of consultative 

 5 On appeal, Plaintiff focuses only on her seizure disorder and 

depression. (Doc. 14 at 4). 

6 On September 2, 2010, Dr. Eno completed a Psychiatric Review 

Technique finding that Plaintiff suffered from depressive 

disorder resulting in no more than “mild” limitations in 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 18 of 37
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physical examiner Dr. Keith Varden, M.D., and consultative 

psychological examiner Dr. Kenneth Starkey, Psy.D. However, the 

record shows that the ALJ actually afforded the same weight, 

i.e., “significant weight,” to the opinions of Dr. Starkey and 

Dr. Eno, and he afforded “substantial” weight to Dr. Varden’s 

opinions. (Id. at 43-44). 

Weighing the opinions and findings of treating, examining, 

and non-examining physicians is an important part of steps four 

and five of the disability determination process. In reaching a 

decision, the ALJ must specify the weight given to different 

medical opinions and the reasons for doing so. See Winschel v. 

Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). 

The failure to do so is reversible error. See Williams v. 

Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1

(M.D. Fla. 2009).

When weighing the opinion of a treating physician, the 

ALJ must give the opinions “substantial weight,” unless good 

cause exists for not doing so. Costigan v. Commissioner, Soc. 

 

activities of daily living and social functioning, “moderate” 

limitations in maintaining concentration, persistence, or pace, 

and no episodes of decompensation. (Tr. 262, 269). Dr. Eno 

also completed a Mental RFC assessment, finding “moderate” 

limitations in three functional categories, and no significant 

limitations in the remaining seventeen functional categories. 

(Id. at 273). Dr. Eno opined that Plaintiff has the ability to 

understand, remember, and carry out very short and simple 

instructions and that she can attend for two hour intervals. 

(Id. at 275).

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 19 of 37
20

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4 

(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of 

Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v. 

Heckler, 776 F.2d 960, 962 (11th Cir. 1985)). The opinion of “a 

one-time examining physician — or psychologist,” on the other 

hand, is not entitled to the same deference as a treating 

physician, Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50, 

2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford, 

363 F.3d at 1160), and an ALJ must have good cause to credit an 

examining consulting physician’s opinion over that of a treating 

physician. See Adamo v. Commissioner of Soc. Sec., 365 F. Appx.

209, 213 (11th Cir. 2010). Furthermore, absent good cause, the 

opinion of a non-examining physician is entitled to little

weight if it is contrary to either the treating or examining 

physician’s findings. See Lamb v. Bowen, 847 F.2d 698, 703 

(11th Cir. 1988); Broughton v. Heckler, 776 F.2d at 962. 

The foregoing notwithstanding, good cause exists to 

discredit the testimony of any medical source when it is 

contrary to or unsupported by the evidence of record. Phillips 

v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). “Good cause 

may also exist where a doctor’s opinions are merely conclusory, 

inconsistent with the doctor’s medical records, or unsupported 

by objective medical evidence.” Hogan v. Astrue, 2012 U.S. 

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012). 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 20 of 37
21

The ALJ is “free to reject the opinion of any physician 

[treating, examining, or non-examining] when the evidence 

supports a contrary conclusion.” Sryock v. Heckler, 764 F.2d 

834, 835 (11th Cir. 1985) (per curiam) (citation omitted); 

Adamo, 365 Fed. Appx. at 212 (The ALJ may reject any medical 

opinion if the evidence supports a contrary finding.).

Turning now to the opinions of Dr. Kenneth Starkey, Psy.D., 

who performed a mental examination and evaluation of Plaintiff 

at the request of the Agency on September 1, 2010, his report 

shows that Plaintiff reported “having problems with seizures 

‘off and on for about 12 years,’” her last seizure having 

occurred “last month,” which would have been in August 2010. 7

(Id. at 255-56). Plaintiff also reported that she had a twoyear history of problems with depression; however, she 

acknowledged that she was able to feed, bathe, groom, and dress 

herself without assistance, prepare meals, manage money, shop 

for groceries, and drive without assistance. 8 (Id. at 256). 

 7 Notably, the record reflects that on September 10, 2010, only 

nine days after Plaintiff’s consultative examination by Dr. 

Starkey, she was treated by her regular treating physician, Dr. 

Robert Lightfoot, M.D., and his treatment notes do not reflect 

that Plaintiff reported any recent seizure activity. (Tr. 277). 

8 Plaintiff reported that, other than seizures and depression, 

she had no other physical or psychological condition that would 

prevent her from working. (Tr. 256). She further stated that 

her treatment for both conditions had been limited to 

medication. (Id.). 

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22

Dr. Starkey diagnosed Plaintiff with “depressive disorder” in 

“partial remission,” and “mathematics disorder,” finding that 

her mental abilities were largely “adequate” and her limitations 

were largely “mild.” (Id. at 257-58). Dr. Starkey also noted 

that Plaintiff’s insight and judgment were “limited,” and that 

her focus, immediate memory, and fund of knowledge were 

“somewhat limited.” (Id.). He concluded that Plaintiff’s 

prognosis was “guarded to fair,” that her ability to understand, 

remember, and carry out simple/concrete instructions was 

“adequate,” and that her ability to work independently, with 

supervisors, with co-workers, and with the public was 

“adequate.” (Id. at 258). He also assigned her a GAF score of 

65. 9 Notwithstanding these findings, Dr. Starkey also opined

that Plaintiff’s ability to work with the pressures common to 

most every day work settings “appears marginal.” (Id.). 

Plaintiff argues that the phrase, “appears marginal,”

reflects Dr. Starkey’s opinion that her limitations are so 

severe that they prevent her from working. It is clear that 

 9 According to the Diagnostic and Statistical Manual of Mental 

Disorders (DSM–IV), Fourth Edition, the GAF scale is used to 

report an individual’s overall level of functioning. A rating 

of 61–70 on the GAF scale indicates some mild symptoms or some 

difficulty in social, occupational, or school functioning, but 

generally functioning pretty well, with some meaningful 

interpersonal relationships. See generally Jackson v. Astrue, 

2011 U.S. Dist. LEXIS 148347, *8, 2011 WL 6780744, *3 (S.D. Ala. 

Dec. 27, 2011). 

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23

while the ALJ assigned significant weight to opinions expressed 

by Dr. Starkey in his written evaluation, the ALJ implicitly 

rejected Dr. Starkey’s lone statement regarding Plaintiff’s 

ability to deal with work place pressures because it stands in 

stark contrast to Dr. Starkey’s examination findings (as 

detailed above), including his opinion that Plaintiff’s ability 

to work independently, with supervisors, with co-workers, and 

with the public was “adequate.” The statement regarding work 

pressure also conflicts with the fact that Dr. Starkey assigned 

Plaintiff a GAF score of 65, denoting only “mild” symptoms, as 

well as with the other substantial evidence in the record. 

Accordingly, the ALJ had good cause for disregarding this 

isolated and inconsistent statement contained in Dr. Starkey’s 

written evaluation, and Plaintiff’s argument that the ALJ erred 

in rejecting the opinion is without merit.

Next, with respect to the opinions of Dr. Keith Varden,

M.D., who performed a consultative physical examination of 

Plaintiff at the request of the Agency on September 15, 2010, 

his report shows that Plaintiff reported having recently had 

seizures “within the last two or three weeks.”10 (Id. at 280). 

Dr. Varden’s examination findings revealed that Plaintiff was in 

 10 As noted in the discussion of Dr. Starkey’s evaluation, Dr. 

Lightfoot’s notes from Plaintiff’s September 10, 2010 visit do 

not reflect that she mentioned any recent seizure activity 

during that visit. (Tr. 277). 

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“no acute distress;” she was alert, oriented, without focal 

deficits; her reflexes were symmetrical; her fine dexterity 

motor skills were intact; and, in essentially every respect, her 

physical examination was completely normal. (Id.). 

Notwithstanding these findings, Dr. Varden opined, based solely

on Plaintiff’s reports of recent seizure activity, that: 

“[a]pparently [Plaintiff’s seizures] are not well controlled 

despite being on antiepileptics, having had seizures within the 

last two or three weeks.” (Id. at 280). “[Her seizure 

disorder] [w]ould put her at increased risk for work-related 

activities currently.” (Id.). “Until these can be better 

controlled, I would consider [her] disabled from normal workrelated activities, [such as] sitting, standing, walking,

carrying objects, traveling, driving, etc., which would most 

likely impair her abilities or put her at risk for most workrelated activities.” (Id.). 

As the ALJ found, Dr. Varden’s opinions are not only 

inconsistent with the medical evidence in this case, they are 

inconsistent with his own examination findings, which were 

completely “normal.” 11 (Id. at 280). Indeed, after examining 

Plaintiff on one occasion and finding essentially no physical 

 11 As stated, the ALJ gave the bulk of Dr. Varden’s findings 

“substantial” weight; however, the ALJ discounted the opinions 

that were inconsistent with the medical evidence and Dr. 

Varden’s own examination findings. (Tr. 43-44, 280). 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 24 of 37
25

problems whatsoever, Dr. Varden opined that her seizures 

“apparently” were not well controlled, despite being on 

medication, and thus, until they could be better controlled, he 

would consider her disabled. Notably, as previously stated, 

Plaintiff saw her treating physician, Dr. Lightfoot, on 

September 10, 2010, five days before her consultative 

examination by Dr. Varden, and yet Dr. Lightfoot’s treatment 

notes do not reflect that Plaintiff mentioned any recent seizure 

activity. (Id. at 277, 280). Given the inconsistencies between 

Dr. Varden’s opinions and Plaintiff’s contemporaneous treatment 

records, as well as the inconsistences with Dr. Varden’s own 

findings, the ALJ had good cause to discredit this opinion. 

In addition to the foregoing evidence, the record shows, as 

the ALJ found, that Plaintiff claims that she began having 

seizures in 2001 and has had them unceasingly at a rate of three 

or four a month from 2002 to 2011. (Id. at 56-57, 196).

Plaintiff’s medical records show that her treating physician 

from 2004 to 2008 was Dr. David Harding, M.D., who treated her 

for various ailments, including back strain, vomiting, chest 

pain, ulcers, migraines, sinus infections, depression, stress, 

and anxiety. (Id. at 228-41). Contrary to Plaintiff’s claims, 

however, Dr. Harding’s treatment records are devoid of any 

mention of Plaintiff ever having a seizure during that four-year 

period. (Id. at 56-57, 228-41). Similarly, with respect to 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 25 of 37
26

Plaintiff’s depression, Dr. Harding’s treatment notes in August 

2004 reflect that Plaintiff’s depression was “much better” after 

starting on Lexapro. (Id. at 239). This evidence belies

Plaintiff’s claims that her seizure disorder and depression were 

disabling in nature. 

In addition, the record contains the report of consultative 

psychological examiner, Dr. Linda Lindman, Ph.D., who performed 

a psychological examination and evaluation of Plaintiff on July 

3, 2008, at the request of the Agency. (Id. at 301). Plaintiff 

reported to Dr. Lindman that she had a history of seizures and 

that she had been prescribed Tegretol. (Id. at 302). However, 

Plaintiff told Dr. Lindman that she “quit taking the medication 

about one year ago and no longer has seizures.” (Id.). 

Similarly, with regard to Plaintiff’s depression, Dr. Lindman’s 

examination findings were essentially “normal,” with the 

exception that Plaintiff’s “fund of information” was poor. (Id.

at 303). Dr. Lindman found that Plaintiff’s mood and affect 

were “good” and “appropriate.” (Id.). Plaintiff further 

acknowledged that, while she was worried about her husband’s 

health, she was “not overwhelmed by depression and anxiety;” she 

was sleeping well; and her appetite was good. (Id. at 302-03). 

This evidence further undermines Plaintiff’s claims of 

debilitating seizure and depression disorders. 

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27

The record also shows that, from August 2009 to September

2011, Plaintiff sought regular treatment from Dr. Lightfoot at 

Victory Health Center for a variety of ailments, including 

seizures.12 On August 31, 2009, Plaintiff reported having had a 

seizure. (Id. at 247). However, when she returned on October 

9, 2009, her examination findings were normal, and it was noted 

that she was “improved” and “doing well.” (Id. at 248). For 

more than a year, from December 2009 to January 2011, 

Plaintiff’s examination findings were essentially normal, and, 

while her seizure diagnosis was noted, the notes do not reflect 

that she reported any more seizure activity. (Id. at 249-54, 

277-78, 282-85). To the contrary, when Plaintiff returned for 

medication refills on April 28, 2011, she reported that she was 

having “no seizure activity on Trileptal.” (Id. at 297). Her 

treatment records on that date reflect “seizure disorder –

controlled.” (Id. at 298). Months later, on September 27, 

2011, when Plaintiff presented with complaints of pain in her 

left wrist, Dr. Lightfoot noted that Plaintiff reported having 

had a seizure “one mo[nth] ago.” (Id. at 309). In response, 

Dr. Lightfoot increased Plaintiff’s seizure medication, referred 

her to an orthopedist for her wrist, and instructed her to 

 12 Plaintiff also saw Dr. F.D. Salter, M.D., at Victory Health 

Center. (Tr. 251-54, 283).

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 27 of 37
28

return in six weeks. (Id. at 310). This is Dr. Lightfoot’s 

final treatment note in the record. 

Dr. Lightfoot’s treatment records (and all of Plaintiff’s 

treatment records at Victory Health Center) reflect that, from 

August 2009 to September 2011, Plaintiff appears to have 

reported only two seizures, for which Dr. Lightfoot adopted a 

conservative treatment plan with medication. Even assuming that 

Plaintiff underreported her seizures, she acknowledged in April 

2011 that she had experienced “no seizure activity” whatsoever 

while taking Trileptal. (Id. at 297). Plaintiff further 

acknowledged at her hearing that at no time did Dr. Lightfoot, 

or any other health care provider, ever recommend that she see a 

specialist for her seizure disorder, despite the fact that Dr. 

Lightfoot referred her to other specialists (a podiatrist and an 

orthopedist) for other ailments. (Id. at 62-63, 243-54, 293, 

310). This evidence further belies Plaintiff’s testimony, and 

the testimony of her daughter, 13 regarding the frequency and 

severity of her seizure disorder. 

As the ALJ found, Plaintiff’s treatment records fail to 

support her claim that her seizure disorder and/or depression 

 13 For the reasons discussed herein in relation to Issue Two, the 

Court rejects Plaintiff’s argument that the ALJ erred in failing 

to credit the testimony of her daughter, Laisha Knight, 

regarding the frequency of Plaintiff’s seizures. (Doc. 14 at 

5).

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 28 of 37
29

prevent her from performing a range of light work. To the 

contrary, none of Plaintiff’s treating physicians has ever 

indicated that either of these conditions is disabling in 

nature. Rather, the treatment records reflect regular, 

conservative treatment of these medical conditions with 

medication, and none of her physicians has ever recommended that 

she see a specialist for either disorder. 

Last, as the ALJ articulated, Plaintiff’s activities of 

daily living belie her claim that her seizure disorder and/or 

her depression is disabling. As the ALJ indicated, Plaintiff

can feed, bathe, groom, dress herself, prepare meals, manage 

money, shop for groceries, use a phone, and drive. (Id. at 

256). In her Disability Report, Plaintiff further stated that 

she cooks for up to five hours at a time, that she cleans daily 

for up to three hours, that she does laundry once a week, and 

that she drives and grocery shops for up to two hours at a 

time.14 (Tr. 189-90). 

Having reviewed the record at length, the Court finds that 

the ALJ properly weighed the opinion evidence in this case and 

that the substantial medical evidence supports the ALJ’s finding 

 14 Plaintiff’s testimony at her hearing was very different. She 

testified that she lives in a house with her seventy-six-yearold mother and that her daughter and her sister come over and do 

all of the housework, cooking, and grocery shopping. (Tr. 59). 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 29 of 37
30

that Plaintiff can perform a range of light work. Therefore, 

Plaintiff’s claim is without merit.

B. Whether the ALJ erred in evaluating the 

testimony of Plaintiff’s daughter 

regarding the frequency of Plaintiff’s 

seizures?

Plaintiff argues that the ALJ erred in failing to properly 

evaluate the credibility of her daughter’s testimony at the 

administrative hearing on November 17, 2011, regarding the 

frequency of Plaintiff’s seizure activity. The record shows 

that Plaintiff’s daughter, Laisha Knight, testified at the 

hearing that Plaintiff suffers from seizures “a lot,” which she

described as “sometimes two or three times a week.” (Tr. 68-

69). Ms. Knight further testified that she personally witnessed 

Plaintiff having seizures at that rate within the two weeks

preceding the hearing. (Doc. 14 at 5; Tr. 68-69). 

When evaluating a claim based on disabling subjective 

symptoms, the ALJ considers medical findings, a claimant’s 

statements, statements by the treating physician or other 

persons, and evidence of how the pain (or other subjective 

symptoms) affects the claimant’s daily activities and ability to 

work. 20 C.F.R. § 416.929(a). In a case where a claimant 

attempts to establish disability through his or her own 

testimony concerning pain or other subjective symptoms, a threepart standard applies. That standard requires: “(1) evidence of 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 30 of 37
31

an underlying medical condition and either (2) objective medical 

evidence that confirms the severity of the alleged pain [or 

other subjective symptoms] arising from that condition or (3) 

that the objectively determined medical condition is of such a 

severity that it can be reasonably expected to give rise to the 

alleged pain [or other subjective symptoms].” Hubbard v. 

Commissioner of Soc. Sec., 348 Fed. Appx. 551, 554 (11th Cir. 

2009) (unpublished) (quoting Holt v. Sullivan, 921 F.2d 1221, 

1223 (11th Cir. 1991)). The Social Security regulations further 

provide:

[S]tatements about your pain or other 

symptoms will not alone establish that you 

are disabled; there must be medical signs 

and laboratory findings which show that you 

have a medical impairment(s) which could 

reasonably be expected to produce the pain 

or other symptoms alleged and which, when 

considered with all of the other evidence 

(including statements about the intensity 

and persistence of your pain or other 

symptoms which may reasonably be accepted as 

consistent with the medical signs and 

laboratory findings), would lead to a 

conclusion that you are disabled.

20 C.F.R. 404.1529(a) (2013). 

“A claimant’s subjective testimony supported by medical 

evidence that satisfies the pain standard is itself sufficient 

to support a finding of disability.” Foote v. Chater, 67 F.3d 

1553, 1561 (11th Cir. 1995). Stated differently, “if a claimant 

testifies to disabling pain [or other subjective symptoms] and 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 31 of 37
32

satisfies the three part pain standard, he must be found 

disabled unless that testimony is properly discredited.” 

Reliford v. Barnhart, 444 F. Supp. 2d 1182, 1186 (N.D. Ala. 

2006). Therefore, once the determination has been made that a 

claimant has satisfied the three-part standard, the ALJ must 

then turn to the question of the credibility of the claimant’s 

subjective complaints. See id., 444 F. Supp. 2d at 1189 n.1 

(the three-part standard “is designed to be a threshold 

determination made prior to considering the plaintiff’s 

credibility.”). If a claimant does not meet the standard, no 

credibility determination is required. Id. 

In assessing a claimant’s credibility, the ALJ must 

consider all of the claimant’s statements about his symptoms and 

determine the extent to which the symptoms can reasonably be 

accepted as consistent with the objective medical evidence. See

20 C.F.R. § 404.1528. Such credibility determinations are 

within the province of the ALJ. Moore v. Barnhart, 405 F.3d 

1208, 1212 (11th Cir. 2005). However, if an ALJ decides not to 

credit a claimant’s testimony about his or her subjective 

symptoms, “the ALJ must articulate explicit and adequate reasons 

for doing so or the record must be obvious as to the credibility 

finding.” Strickland v. Commissioner of Soc. Sec., 516 Fed.

Appx. 829, 832 (11th Cir. 2013) (unpublished) (citing Foote, 67 

F.3d at 1562); see also Tieniber v. Heckler, 720 F.2d 1251, 1255 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 32 of 37
33

(11th Cir. 1983) (although no explicit finding as to credibility 

is required, the implication must be obvious to the reviewing

court). Failure to articulate the reasons for discrediting 

testimony related to pain or other subjective symptoms requires, 

as a matter of law, that the testimony be accepted as true. 

Holt, 921 F.2d at 1223. 

The Eleventh Circuit has held that the determination of 

whether objective medical impairments could reasonably be 

expected to produce the pain or other subjective symptoms is a 

factual question to be made by the Secretary and, therefore, 

“subject only to limited review in the courts to ensure that the 

finding is supported by substantial evidence.” Hand v. Heckler, 

761 F.2d 1545, 1549 (11th Cir. 1985), vacated on other grounds 

and reinstated sub nom., Hand v. Bowen, 793 F.2d 275 (11th Cir. 

1986). A reviewing court will not disturb a clearly articulated 

credibility finding with substantial supporting evidence in the 

record. See Nye v. Commissioner of Social Sec., 524 Fed. Appx.

538, 543 (11th Cir. 2013) (unpublished). 

In the present case, Plaintiff argues that the ALJ erred by

failing to comply with Social Security Ruling 96-7p, which 

required him to consider and evaluate Plaintiff’s daughter’s 

testimony regarding the frequency of Plaintiff’s seizure 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 33 of 37
34

activity.15 While Plaintiff is correct that the ALJ did not made 

a specific credibility determination with respect to her 

daughter’s testimony, an ALJ is not required to make a specific 

credibility finding as to a lay witness’s testimony if the ALJ’s 

 15 SSR 96-7p provides, in pertinent part:

4. In determining the credibility of the 

individual’s statements, the adjudicator 

must consider the entire case record, 

including the objective medical evidence, 

the individual’s own statements about 

symptoms, statements and other information 

provided by treating or examining physicians 

or psychologists and other persons about the 

symptoms and how they affect the individual, 

and any other relevant evidence in the case 

record. An individual’s statements about 

the intensity and persistence of pain or 

other symptoms or about the effect the 

symptoms have on his or her ability to work 

may not be disregarded solely because they 

are not substantiated by objective medical 

evidence.

5. It is not sufficient for the adjudicator 

to make a single, conclusory statement that 

“the individual’s allegations have been 

considered” or that “the allegations are (or 

are not) credible.” It is also not enough 

for the adjudicator simply to recite the 

factors that are described in the 

regulations for evaluating symptoms. The 

determination or decision must contain 

specific reasons for the finding on 

credibility, supported by the evidence in 

the case record, and must be sufficiently 

specific to make clear to the individual and 

to any subsequent reviewers the weight the 

adjudicator gave to the individual’s 

statements and the reasons for that weight.

SSR 96-7p, 1996 SSR LEXIS 4, *3-4, 1996 WL 374186, *1-2.

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35

credibility finding as to the claimant sufficiently implies a 

rejection of that testimony as well. See Osborn v. Barnhart, 

194 Fed. Appx. 654, 666 (11th Cir. 2006) (per curiam) 

(unpublished) (“[I]f the ALJ fails to make an explicit 

credibility determination as to a family member’s testimony or 

statements, . . . we will not find error if the credibility 

determination was implicit in the rejection of the claimant’s 

testimony.”) (citations omitted). 

In this case, the ALJ found that Plaintiff’s testimony 

regarding the frequency of her seizure activity was “not fully 

credible” based on the inconsistency between her testimony and 

the other record evidence. 16 (Id. at 41, 43, 196). 

Specifically, the ALJ pointed to the lack of medical evidence to

support the alleged severity of Plaintiff’s seizure disorder and 

the fact that the treatment for Plaintiff’s seizure disorder had 

been limited to medication only. (Id. at 41-43). In addition, 

the ALJ noted the inconsistency between Plaintiff’s reported 

seizure activity and the evidence of her activities of daily 

living (i.e., she can feed, bathe, groom and dress herself 

without assistance, manage money, prepare meals, shop for 

 16 At her hearing, Plaintiff told the ALJ that she has had 

seizures at a rate of three or four a month since 2002 and that 

there have been no periods of time when she has had fewer 

seizures. (Tr. 57). In her disability/seizure report produced 

to the Agency on July 27, 2010, Plaintiff stated that she had 

experienced “twelve or more” seizures in 2010. (Id. at 196).

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 35 of 37
36

groceries, use a phone, drive an automobile, attend church, and 

visit with others). “When evaluating a claimant’s credibility, 

an ALJ . . . may consider any inconsistencies between a 

claimant’s alleged limitations and his daily activities.” 

Lambeth v. Astrue, 2011 U.S. Dist. LEXIS 75150, *27, 2011 WL 

2784560, *9 (S.D. Ala. July 12, 2011) (citing Macia v. Bowen, 

829 F.2d 1009, 1012 (11th Cir. 1987)). As in Lambeth, 

Plaintiff’s varied daily activities in this case are 

inconsistent with her claim that her medical impairment (in this 

case a seizure disorder) renders her completely unable to work.

Thus, the ALJ’s reasons for finding Plaintiff’s allegations 

regarding the severity of her seizure disorder to be less than 

fully credible are supported by the record.

Turning now to Ms. Knight’s testimony, the ALJ’s finding

that Plaintiff’s allegations regarding the severity of her 

seizure disorder were less than fully credible, in turn, implies 

that the ALJ found that Ms. Knight’s cumulative evidence on this 

subject is likewise less than fully credible. Indeed, Ms. 

Knight’s testimony that Plaintiff suffers seizures approximately 

two or three times a week (id. at 69) is even inconsistent with 

Plaintiff’s own testimony that she suffers seizures 

approximately three or four times a month. (Id. at 57). 

In sum, both Plaintiff’s testimony and the testimony of her 

daughter on the issue of the frequency of Plaintiff’s seizures 

Case 1:14-cv-00009-B Document 21 Filed 03/31/15 Page 36 of 37
37

lack any support from the objective medical evidence in the 

record and, to the contrary, are inconsistent with the medical 

evidence in this case and with each other. Thus, this testimony 

was properly discounted by the ALJ. As the court observed in 

Osborn, “[w]hile the findings in this case could be improved 

upon,” the ALJ properly rejected Plaintiff’s subjective 

testimony regarding the disabling nature of her seizure 

disorder, and while the ALJ could have mentioned Ms. Knight’s 

testimony, the Court concludes that the ALJ’s specific 

credibility determination as to Plaintiff’s testimony 

sufficiently implies a rejection of her daughter’s testimony as 

well. Cf. Osborn, 194 Fed. Appx. at 666. Thus, Plaintiff’s 

claim is without merit. 

V. Conclusion 

For the reasons set forth herein, and upon careful 

consideration of the administrative record and memoranda of the 

parties, it is hereby ORDERED that the decision of the 

Commissioner of Social Security denying Plaintiff’s claim for 

supplemental security income be AFFIRMED.

DONE this 31st day of March, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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