IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LUCRETIA PATTERSON PENTAKOTA, :

Plaintiff, :

vs. : CA 14-0190-C

CAROLYN W. COLVIN, :

Acting Commissioner of Social Security,

:

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking 

judicial review of a final decision of the Commissioner of Social Security denying her

claims for disability insurance benefits and supplemental security income. The parties 

have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 

U.S.C. § 636(c), for all proceedings in this Court. (Docs. 20 & 22 (“In accordance with the 

provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to 

have a United States Magistrate Judge conduct any and all proceedings in this case, . . . 

order the entry of a final judgment, and conduct all post-judgment proceedings.”).) 

Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s 

brief, and the arguments of counsel at the February 20, 2015 hearing before the Court, it 

is determined that the Commissioner’s decision denying benefits should be affirmed.

1

 1 Any appeal taken from this memorandum opinion and order and judgment shall 

be made to the Eleventh Circuit Court of Appeals. (See Docs. 20 & 22 (“An appeal from a 

judgment entered by a Magistrate Judge shall be taken directly to the United States Court of 

Appeals for this judicial circuit in the same manner as an appeal from any other judgment of 

this district court.”))

Case 1:14-cv-00190-C Document 23 Filed 03/06/15 Page 1 of 19
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Plaintiff alleges disability due to bipolar disorder, post traumatic stress disorder 

(“PTSD”), carpal tunnel syndrome, asthma, and chronic obstructive pulmonary disease 

(“COPD”). The Administrative Law Judge (ALJ) made the following relevant findings:

1. The claimant meets the insured status requirements of the Social 

Security Act through September 30, 2007.

2. The claimant has not engaged in substantial gainful activity since 

June 20, 2011, the amended alleged onset date (20 CFR 404.1571 et seq., 

and 416.971 et seq.).

3. The claimant has the following severe impairments: Carpal 

tunnel syndrome, left; Bipolar Disorder, Not Otherwise Specified 

(NOS); Anxiety; Post Traumatic Stress Disorder (PTSD); Substance 

abuse; Asthma; Chronic Obstructive Pulmonary Disease (COPD); and 

Obesity (20 CFR 404.1520(c) and 416.920(c)).

In evaluating this case, the claimant’s date last [i]nsured (DLI) is relevant. 

The DLI is the last day of the last calendar quarter in which the 

requirements for entitlement to a period of disability and disability 

insurance benefits are met. In the claimant’s case, this date is September 

30, 2007. If onset of disability cannot be established on or before the DLI, 

the claim for a period of disability and disability insurance benefits under 

Title II must be denied. If the claim is for Title II benefits only, then the 

period of adjudication ends with the DLI. With regard to Title II benefits, 

several exhibits contain evidence after the claimant’s date last insured. 

Nonetheless, the Administrative Law Judge has carefully read and 

considered all evidence regardless of whether it is specifically cited in the 

decision.

. . .

4. The claimant does not have an impairment or combination of 

impairments that meets or medically equals the severity of one of the 

listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 

404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

. . .

The severity of the claimant’s mental impairments, considered singly and 

in combination, do not meet or medically equal the criteria of listings 12.04 

and 12.09. In making this finding, the undersigned has considered 

whether the “paragraph B” criteria are satisfied. To satisfy the “paragraph 

B” criteria, the mental impairments must result in at least two of the 

following: marked restriction of activities of daily living; marked 

difficulties in maintaining social functioning; marked difficulties in 

maintaining concentration, persistence, or pace; or repeated episodes of 

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decompensation, each of extended duration. A marked limitation means 

more than moderate but less than extreme. Repeated episodes of 

decompensation, each of extended duration, means three episodes within 

1 year, or an average of once every 4 months, each lasting for at least 2 

weeks. 

In activities of daily living, the claimant has mild restriction. This finding 

is supported by the Psychiatric Review Technique assessment completed 

on September 8, 2011, by Harold Veits, M.D., a medical consultant with 

Disability Determination Services. The claimant is able to care for her own 

physical needs including bathing herself, dressing herself, taking 

medicine and cooking. She has no driving restrictions, is able and does 

drive. She was able to raise two children. According to testimony, on a 

typical day she takes care of her plants, reads, and cleans house. She 

cooks, but sometimes burns food because she forgets about it. She goes 

grocery shopping once a month. 

In social functioning, the claimant has moderate difficulties. The 

evaluation in Exhibit 14F supports this finding. The claimant testified that 

she goes to the grocery store when most people are working. In her adult 

function report, she indicated that socially, she sits and talks and she does 

not go places.

With regard to concentration, persistence or pace, the claimant has 

moderate difficulties. According to testimony, the claimant has problems 

concentrating. Despite the claimant’s allegations of mental limitations, the 

claimant’s cumulative high school record indicates she made A’s, B’s, C’s, 

and some D’s. Despite the claimant’s mental limitations, she testified she 

likes to read science fiction and caring for her plants.

As for episodes of decompensation, the claimant has experienced one to 

two episodes of decompensation, each of extended duration, according to 

the evaluation in Exhibit 14F.

Because the claimant’s mental impairments do not cause at least two 

“marked” limitations or one “marked” limitations and “repeated” 

episodes of decompensation, each of extended duration, the “paragraph 

B” criteria are not satisfied.

The undersigned has also considered whether the “paragraph C” criteria 

are satisfied. In this case, the evidence fails to establish the presence of the 

“paragraph C” criteria according to the evaluation in Exhibit 14F.

The limitations identified in the “paragraph B” criteria are not a residual 

functional capacity assessment but are used to rate the severity of mental 

impairments at step 2 and 3 of the sequential evaluation process. The 

mental residual functional capacity assessment used at steps 4 and 5 of the 

sequential evaluation process requires a more detailed assessment by 

itemizing various functions contained in the broad categories found in 

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paragraph B of the adult mental disorders listings in 12.00 of the Listing of 

Impairments. Therefore, the following residual functional capacity 

assessment reflects the degree of limitation the undersigned has found in 

the “paragraph B” mental function analysis.

5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to perform

light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she 

can lift, carry, push and pull 20 pounds occasionally and 10 pounds 

frequently, sit, stand and walk for 6 hours in a work day, frequently use

foot controls bilaterally, only frequently handle, feel and finger with 

her non-dominant hand, could frequently climb ramps and stairs but 

never ladders and scaffolds, frequently balance and stoop but only 

occasionally kneel, crouch and crawl, could never be exposed to 

unprotected heights or dangerous machinery, dangerous tools or 

hazardous processes and could occasionally operate a motor vehicle, be 

exposed to humidity and wetness and atmospheric conditions; she 

could only remember short simple oral or written instructions and 

would be unable to deal with detailed or multi-step instructions and 

she could perform simple routine repetitive tasks but would be unable 

to perform detailed or complex tasks, she could have no more than 

occasional contact with the general public, but could have frequent 

contact with co-workers and supervisors and would be able to accept 

constructive, non-confrontational criticism, work in small group 

settings and be able to accept changes in the work place setting if 

introduced gradually and would be unable to perform assembly line 

work with production rate pace.

. . .

The claimant was 41 years of age on her alleged onset date. According to 

testimony, she completed nine months of college. The claimant’s 2009 

consultative examination provided the following information about her. 

She is able to care for her own physical needs including bathing herself,

dressing herself, taking medicine, driving, and cooking. She is able to 

drive. She stated [] that she was able to raise her two children. However, 

since the onset of more significant psychiatric problems[,] her 15-year-old 

child now lives with her aunt. With regard to educational functioning, she 

reportedly performed well in school and graduated. She received an 

Associate’s degree in the medical support staff field, but she has never 

worked in that field. She has worked primarily for herself or her mother 

as a seamstress. She last worked as a custom seamstress 11⁄2 year[s] prior 

to February 2009. With regard to substance abuse history, she smokes one 

pack of cigarettes per day. She denied current problems with alcohol 

although she has a reported and significant history of illicit drug use. The 

last time she used illicit drugs was four to five years prior to 2009. She has 

a history of methamphetamine use. 

. . .

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According to information provided to the Social Security Administration 

on July 22, 2011, the claimant has trouble remembering key dates 

(hospitalizations, doctor’s visits, etc.). It was also noted that the claimant 

seemed very anxious and distracted at times during the interview. At 

times, the interviewer noted that the claimant mumbled and made 

comments to herself and laughed. Several times, the interviewer asked the 

claimant to repeat the comments, and she responded “never mind.” The 

claimant told the interviewer that she sees things that are not there; 

however, she denied hearing voices. The claimant alleged worsening of 

her conditions going back to May 2007, and that she has had additional 

medical problems and hospitalizations during and after May 2007.

On August 3, 2011, the claimant provided the following information in an 

adult function report: . . . She has no problems taking care of her personal 

needs. She cooks complete meals and does laundry. To travel, she walks 

and drives a car. She is able to count change, but is unable to pay bills, 

handle a savings account, and checkbook/money orders. Her hobbies 

included watching television and reading. Socially, she sits and talks. She 

does not go places. She has problems . . . completing tasks, concentrating, 

understanding, following instructions, using hands, and problems with 

memory. . . . She is “all right” with understanding written instructions. 

Her comprehension on verbal instructions depends on how long they are 

and she forgets them after 30 minutes.

. . .

On September 9, 2011, the claimant was denied disability benefits. 

Subsequently, on September 24, 2011, the claimant completed a Disability 

Appeal Report and indicated that since February 2011 her mental illness 

had progressed and her medication[s] were not working as well as they 

did in the past.

The claimant alleges disability because of various mental conditions including 

problems with anxiety, insomnia, manic depression, bipolar disorder, having 

hallucinations, and being hospitalized for mental problems. According to 

testimony, she has problems concentrating. She was placed on 

medications that make her sleepy. She testified that her medications make 

her feel like a zombie and make her sleep. She testified that she sees a 

counselor once a month and a psychiatrist every three months. She stated 

that she was hospitalized in North Harbor, and she was not functioning 

well. She testified that she feels good when her psychiatric medications are right. 

With regard to the claimant’s mental health treatment, [i]n December 

2008, the claimant was admitted to the Emergency Department of W.O. 

Moss Regional Medical Center. She had taken a hand[]ful[] of pills and 

wanted to kill herself. She had been drinking. The claimant had a history 

of bipolar disorder and was admitted because of suicidal ideations. She 

had been drinking 750 ml (a fifth) of alcohol daily for the past 30 days. She 

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denied heavy drinking in the past and stated that she had been drinking 

because of being raped by three men three months prior. She was trying to 

forget the rape. She had nightmares, flashbacks, mood swings, decreased 

need for sleep, flight of ideas, and distractibility. She was recommended 

for continued hospitalization for stabilization or observation, 

psychopharmacology, and therapy. She was diagnosed with Alcohol 

Abuse, Post Traumatic Stress Disorder, and Bipolar Disorder, most recent 

episode mixed. The claimant reported that her medications from May 

2008 were stolen, but she got them back in July 2008, and was running out 

of them again. Upon admission, the claimant had a global assessment 

functioning (GAF) score of 50. According to the Diagnostic and Statistical 

Manual of Mental Disorders, Fourth Edition, (DSM-IV), a score of 41 to 50 

represents serious symptoms (e.g., suicidal ideation, severe obsessional 

rituals, frequent shoplifting) OR any serious impairment in social, 

occupational, or school functioning (e.g., no friends, unable to keep a job). 

Notably, the Commissioner has specifically declined to endorse the GAF 

scale for use in the disability programs, and has stated that the GAF scale 

“does not have a direct correlation to the severity requirements in our 

mental disorders listings.” While the GAF scores may be indicative of the 

claimant’s alleged level of functioning on the date of treatment, the scores 

are assigned little weight when considering the cumulative evidence of 

record regarding the claimant’s overall mental health condition. 

Furthermore, the undersigned has considered the cumulative evidence of 

record, including the claimant’s credibility, in determining the residual 

functional capacity assessment. The appropriate limitations derived from 

claimant’s impairments are reflected in the claimant’s residual functional 

capacity and in the hypothetical question presented to the vocational 

expert at the administrative hearing.

It is important to note that on December 22, 2008, upon discharge from W.O. 

Moss Regional Medical Center, the claimant’s GAF score improved to 70. 

According to the DSM-IV, a score of 70 represents some mild symptoms 

(e.g., depressed mood and mild insomnia) OR some difficulty in social[,] 

occupational or school functioning (e.g., occasional truancy, or theft 

within the household), but generally functioning pretty well, has some 

meaningful interpersonal relationships. Thus, with proper mental health 

treatment and medication therapy, the claimant’s mental health improves.

During her medical consultative examination on March 7, 2009, with 

Amanda Steen, M.D., the claimant was alert, oriented, with a pleasant 

mood, and appropriate range of affect. The medical examiner diagnosed 

bipolar disorder and asthma with chronic daily symptoms with mild 

hypoxia at rest. Notably, the examiner was not an acceptable medical source to 

diagnose mental impairments. However, an examiner may offer his/her 

observations regarding the claimant’s demeanor and overall presentation.

In 2009 and 2010, the claimant received mental health treatment at West 

Alabama Mental Health Center. During a mental health visit in July 2010, 

the claimant’s provider noted that she was pleasant and cooperative, and 

Case 1:14-cv-00190-C Document 23 Filed 03/06/15 Page 6 of 19
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planned to remain compliant with treatment and medication. The 

therapist further noted that the claimant was clean and sober. In June 

2011, the claimant had diagnoses of Bipolar Disorder, NOS, alcohol abuse, 

and a history of Methamphetamine abuse. She had a GAF score of 50. As 

the claimant’s admission at North Harbor shows, when she drinks she 

cannot control herself. She claimed that she did not drink alcohol while on 

medication. However, this statement is doubtful.

The medical record establishes that on June 18, 2011, the claimant was 

admitted [to the] DCH Health System. She had homicidal complaints, 

alcohol consumption, and was again off her medications. She had a 

history of anxiety, depression, psychosis, suicide attempt, suicide[al] 

ideation, substance abuse, alcohol intoxication, schizophrenia, and 

bipolar/mania. She was crying and laughing. She denied suicidal 

thoughts. She was treated with medication and discharged. . . . During the 

claimant’s inpatient visit in June 2011, she had been non-compliant with 

her medications for two months. She had been drinking and her alcohol 

level was 402 (c). The claimant reported that she quit her job as a Cashier 

because she could no[] longer get free medications. She reported to the 

Social Security Administration that her last day at work was June 17, 2011, 

the date prior to her admission to the hospital.

The claimant’s mental health improved in August 2011. During a mental health 

session in August 2011, at West Alabama Mental Health Center, the claimant 

reported she was doing well, and she reported a reduction in depression. She 

stated that she was doing extra things around her home. She denied suicidal and 

homicidal thoughts. She reported good socialization skills. She reported a fair 

appetite and sleeping patterns. The therapist indicated the claimant was doing 

moderately well, planned to remain compliant in all areas and to follow-up in one 

month with the therapist.

In March 2012, the claimant was hospitalized four days for mental health 

treatment at DCH Health System. She was seen in the Emergency Room. 

She was brought in by her family for increasingly erratic behavior, anger, 

and aggressive outbursts, and she requested adjustment of medications. 

After proper evaluation, she transferred to North Harbor. After treatment, 

the claimant show[ed] gradual improvement at the time of discharge. She 

was eating fairly well, and her sleep patterns and disease process resolved 

to a significant degree. She was placed on Trazadone. On March 5, 2012, 

the psychiatrist noted that she seemed to be doing better. In March 2012, a 

computer aided tomography (CT scan) of the claimant’s head showed no 

significant abnormalities.

In March 2012, claimant’s primary doctor indicated she was wellappearing, well-nourished, and in no distress. She was oriented X 3, with 

a normal mood except she was sitting in a wheelchair, and shaking all 

over. More than likely, the claimant was having an adverse reaction to 

drugs. She was treated for four days and released. She was able to sleep. 

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No other physical issues were noted throughout the hospital. She denied 

having hallucinations. 

In March 2012, the claimant presented for a follow-up visit related to 

ambulation because she reported having had three falls. She also reported 

memory loss over the past two to three months. The claimant indicated 

that she was on new medications from West Alabama Mental Health 

Center. The claimant’s doctor indicated she was well-appearing, wellnourished and in no distress. She was oriented X 3, with a normal mood 

except she was sitting in a wheelchair and shaking all over. She had no 

prominent rash or lesions. Her lungs were clear to auscultation and 

percussion. . . . Moreover, during a visit in May 2012 at West Alabama, the 

claimant reported reading a good book and helping her mother most days 

during the past week. She reported good physical health and no current 

problems. In May of 2012, the claimant agreed that she needed 

medication. The therapist indicated she had a good friend and great 

family support. The claimant was positive that she would stay compliant 

with her treatment.

In July 2012, David Hodo, M.D., a psychiatrist, evaluated the claimant. Dr. 

Hodo opined that the claimant’s activities were limited due to her illness. 

The doctor indicated the claimant does help and looks after her mother. . . 

. The claimant’s mood was depressed but was seen to be at times 

exaggerated. Her affect was appropriate and her speech was normal. Her 

thoughts at times were logical. She was not suicidal or homicidal. She was 

not then currently having any hallucinations. Her sensorium was intact 

and her cognitive function was appropriate to age. Her abstractions were 

adequate. She had trouble concentrating. The doctor diagnosed Manic 

Depressive Illness, bipolar type. Dr. Hodo also completed a Mental 

Medical Source Statement in the claimant. He opined that the claimant has 

marked or extreme limitations in all functional areas. Notably, Dr. Hodo 

himself expressed concerns that the claimant’s mood was exaggerated. The overall 

medical record does not support this evaluation. Moreover, the claimant’s 

previous behavior in March and May 2012 is inconsistent with Dr. Hodo’s 

evaluation.

On February 26, 2009, the claimant was referred, at the request of the 

Social Security Administration, to a mental consultative examination 

performed by G. Jon Haag, Psy.D., a clinical psychologist. The examiner 

diagnosed Post Traumatic Stress Disorder and Alcohol Dependence, Early 

Full Remission. The examiner noted that the claimant did not appear 

acutely manic but had a recent history of suicide attempt. The examiner 

indicated that the claimant’s mood appeared stable. The examiner 

indicated that evidence from the claimant’s mental status examination and 

clinical interview revealed that her memory was not impaired. Her 

concentration was noted to be unimpaired. The examiner opined that the 

claimant appeared to be able to understand and follow simple 

instructions. The examiner further opined that the claimant’s prognosis 

for improvement was estimated to be guarded.

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On September 8, 2011, DDS Medical Consultant Dr. Veits completed a 

Mental Residual Functional Capacity Assessment on the claimant. The 

consultant opined that the claimant had the following limitations: The 

claimant has the ability to understand and carry out many short simple 

instructions. She can attend and concentrate[] for two-hour periods. The 

claimant would benefit from work which does not require frequent 

interaction with the general public. Work-setting changes should be 

minimal, gradual, and full explained. He also opined that she might need 

help setting goals.

. . .

In evaluating the totality of evidence in this case, the claimant’s subjective 

allegations of record regarding her symptoms and limitations exceed the minimal 

objective findings of abnormality documented in the medical evidence. The 

claimant’s representative pointed out that in North Harbor in March 2012, 

the claimant had a GAF of 30. However, it should be noted that in March 

2012, the claimant presented for a follow-up visit related to ambulation 

and that she had had three falls. She also reported memory loss over the 

past two to three months. The claimant indicated that she was on new 

medications from West Alabama. The claimant’s doctor indicated she was 

well-appearing, well-nourished and in no distress. She was oriented X 3, 

with a normal mood except she was sitting in a wheelchair and shaking all 

over. She had no prominent rash or lesions. Her lungs were clear to 

auscultation and percussion. . . . Moreover, during a visit in May 2012 at 

West Alabama, the claimant reported reading a good book and helping 

her mother most days during the past week. She reported good physical 

health and no current problems. In May of 2012, the claimant agreed that 

she needed medication. The therapist indicated she had a good friend and 

great family support. The claimant was positive that she would stay 

compliant with her treatment.

Treating Psychiatrist Dr. Hodo’s opinion is not supported by the medical 

evidence. Notably, Dr. Hodo himself expressed concerns that the claimant’s 

mood was exaggerated. The overall medical record does not support this 

evaluation. Moreover, the claimant’s previous behavior in March and May 2012 

is inconsistent with Dr. Hodo’s evaluation. Moreover, the medical record 

establishes [that] with proper mental health treatment and medication therapy, 

the claimant’s mental health improves.

. . .

The claimant’s activities of daily living during the period in which she 

alleges total disability are not suggestive of disabling incapacity. The 

claimant is able to care for her own physical needs including bathing 

herself, dressing herself, taking medicine, driving, and cooking. She has 

no driving restrictions. She is able to drive. She was able to raise two 

children. According to testimony, on a typical day she takes care of her 

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plants, reads, and cleans house. She cooks, but sometime[s] burn[s] food 

because she forgets about it. She goes grocery shopping once a month. 

Socially, she sits and talks, [but] she does not go places. Moreover, as 

recently as July 2012, the claimant reported that she helps look after her 

mother. Therefore, the claimant is a caregiver. The role of caregiver is 

tremendous, and can be overwhelming. The responsibilities and role of a 

caregiver includes shopping, cooking, cleaning, and running errands. In 

many ways, the caregiver is the extra hand in providing the daily needs of 

an individual, such as transportation, bathing, toileting, dressing and 

feeding. Caregivers also supervise and dispense medication. If required, 

they arrange for healthcare professional[s] to evaluate the informed 

person. On a more abstract level, caregivers listen, talk, and provid[e] 

emotional support whenever possible. Therefore, the claimant’s role as 

caregiver demonstrates she performed functions inconsistent with 

disability.

Finally, no treating or examining medical source has provided sufficient 

evidence to support a recommendation that restricts the claimant’s 

activities or reported limitations regarding the capacity for work-related 

tasks in a manner inconsistent with the assessment of residual functional 

capacity in this decision.

. . .

As for the opinion evidence, the undersigned Administrative Law Judge 

gives partial weight to the consultative examiners at Exhibits 4F and 5F, as 

their opinions are consistent with the claimant’s activities of daily living 

and treatment record. If these opinions were more recent, they would be 

given more weight as they are consistent with current medical records. 

The undersigned Administrative Law Judge[] gives some weight to the 

DDS medical consultants contain[ed] [here]in, as they are generally 

consistent with the medical record. However, the undersigned 

Administrative Law Judge gives substantial weight to the opinion at 

Exhibit 11F, as it points out that with regard to Title II benefits, most of the 

claimant’s treatment occurred after her date last insured.

The undersigned Administrative Law Judge gives little weight to the 

opinion of Treating Psychiatrist Dr. Hodo. He opined that the claimant 

has marked or extreme limitations in all functional areas. Notably, Dr. 

Hodo himself expressed concerns that the claimant’s mood was 

exaggerated. The overall medical record does not support this evaluation

with relevant evidence. Moreover, the claimant’s previous behavior in 

March and May 2012 is inconsistent with Dr. Hodo’s evaluation. 

Moreover, the claimant learned the drapery business and worked with her 

mother in this business for 13 years. In addition, the claimant testified she 

was a Cashier at a Gas Station/Convenience Store. She was responsible 

for the gas pump machine, credit card machine, identification checks, and 

the cash register could not be more than $2.00 in error. Thus, Dr. Hodo’s 

Case 1:14-cv-00190-C Document 23 Filed 03/06/15 Page 10 of 19
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evaluation placing the claimant in marked and extreme categories does 

not match the medical record and the observations at the hearing.

6. The claimant is unable to perform any past relevant work (20 

CFR 404.1565 and 416.965).

The claimant has past relevant work as a Drapery Sewer, light, semiskilled 

and Cashier, light, unskilled. Accordingly, the claimant is unable to 

perform past relevant work.

7. The claimant was born on February 11, 1970 and was 41 years old, 

which is defined as a younger individual age 18-49, on the alleged 

disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to 

communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination 

of disability because using the Medical-Vocational Rules as a 

framework supports a finding that the claimant is not disabled, whether 

or not the claimant has transferable job skills (See SSR 82-41 and 20 

CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience, and 

residual functional capacity, there are jobs that exist in significant 

numbers in the national economy that the claimant can perform (20 CFR 

404.1569, 404.1569(a), 416.969, and 416.969(a)).

. . .

If the claimant had the residual functional capacity to perform the full 

range of light work, a finding of not disabled would be directed by 

Medical-Vocational Rule 202.21. However, the claimant’s ability to 

perform all or substantially all of the requirements of this level of work 

has been impeded by additional limitations. To determine the extent to 

which these limitations erode the unskilled light occupational base, the 

Administrative Law Judge asked the vocational expert whether jobs exist 

in the national economy for an individual with the claimant’s age, 

education, work experience, and residual functional capacity. The 

vocational expert testified that given all of these factors the individual 

would be able to perform the requirements of representative occupations 

such as the following: Garment Folder, DOT 369.687-018, light, unskilled 

(13,000 jobs in Alabama and 500,000 jobs nationally); Garment Sorter, DOT 

789.687-058, light, unskilled (10,000 jobs in Alabama and 200,000 jobs 

nationally); and Tagger, DOT 794.687-058, light, unskilled (4,000 jobs in 

Alabama and 300,000 jobs nationally).

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Pursuant to SSR 00-4p, the undersigned has determined that the 

vocational expert’s testimony is consistent with the information contained 

in the Dictionary of Occupational Titles.

Based on the testimony of the vocational expert, the undersigned

concludes that, considering the claimant’s age, education, work 

experience, and residual functional capacity, the claimant is capable of 

making a successful adjustment to other work that exists in significant 

numbers in the national economy. A finding of not disabled is therefore 

appropriate under the framework of the above-cited rule.

11. The claimant has not been under a disability, as defined in the 

Social Security Act, from June 20, 2011, through the date of this decision 

(20 CFR 404.1520(g) and 416.920(g)). 

 

(Tr. 14-15, 15, 15-17, 17-18, 18, 19-22, 23-24, 24-25, 26 & 27 (internal citations and some

quotation marks omitted; emphasis in original).) The Appeals Council affirmed the 

ALJ’s decision (Tr. 1-3) and, thus, the hearing decision became the final decision of the 

Commissioner of Social Security.

DISCUSSION

In all Social Security cases, the claimant bears the burden of proving that she is 

unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (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. at 1005. Once the claimant meets this burden, as here, it becomes the 

Commissioner’s burden to prove that the claimant is capable, given her age, education 

and work history, of engaging in another kind of substantial gainful employment, 

which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 

1985).

The task for the Magistrate Judge is to determine whether the Commissioner’s 

decision to deny claimant benefits, on the basis that she can perform those light jobs 

Case 1:14-cv-00190-C Document 23 Filed 03/06/15 Page 12 of 19
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identified by the vocational expert, is supported by substantial evidence. Substantial 

evidence is defined as more than a scintilla and means such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion. Richardson v. 

Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether 

substantial evidence exists, we 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).2 Courts are precluded, however, from 

“deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed. 

Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam)3 (citing Dyer v. Barnhart, 395 F.3d 

1206, 1210 (11th Cir. 2005)). And, “’[e]ven if the evidence preponderates against the 

Commissioner’s findings, [a court] must affirm if the decision reached is supported by 

substantial evidence.’” Id. (quoting Crawford v. Commissioner of Social Security, 363 F.3d 

1155, 1158-1159 (11th Cir. 2004)).

On appeal to this Court, plaintiff raises the sole issue that the ALJ erred in 

finding she does not meet Listing 12.04. (Doc. 16, at 1; see also id. at 1-8.) In this circuit, 

Pentakota bears the burden of proving that she has an impairment which meets or is 

medically equivalent to a listed impairment. Frame v. Commissioner, Social Security 

Administration, 2015 WL 150733, *2 (11th Cir. Jan. 13, 2015) (“To prevail at step three, the 

claimant must provide specific evidence—such as medical signs, symptoms, or 

laboratory-test results—showing that her impairment meets or medically equals a listed 

impairment. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 891 (1990). ‘For a claimant 

 2 This Court’s review of the Commissioner’s application of legal principles, 

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

3 “Unpublished opinions are not considered binding precedent, but they may be 

cited as persuasive authority.” 11th Cir.R. 36-2.

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to show that h[er] impairment matches a listing, it must meet all of the specified medical 

criteria. An impairment that manifests only some of those criteria, no matter how 

severely, does not qualify.’”); see also Himes v. Commissioner of Social Security, 585 

Fed.Appx. 758, 762 (11th Cir. Sept. 26, 2014) (“To meet a Listing, the claimant must meet 

all of the specified medical criteria, and an impairment that fails to do so does not 

qualify no matter how severely it meets some of the criteria. The claimant bears the 

burden of proving [s]he meets a Listing. A claimant must have a diagnosis included in 

the Listings and provide medical reports showing that [her] conditions meet the specific 

criteria of the Listings and the duration requirement. However, an impairment cannot 

meet the criteria of a Listing based only on a diagnosis.” (internal citations omitted)); 

Barclay v. Commissioner of Social Security Administration, 274 Fed.Appx. 738, 741 (11th Cir. 

Mar. 12, 2008) (“The claimant has the burden of proving an impairment meets or equals 

a listed impairment. To meet a Listing, a claimant must have a diagnosis included in the 

Listings and must provide medical reports4 documenting that the conditions meet the 

specific criteria of the Listings and the duration requirement.” (quotation marks and 

citations omitted; footnote added)). Once an impairment is shown to meet or medically 

equal a listed impairment, a claimant is “conclusively presumed to be disabled based on 

. . . her medical condition.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).

To establish presumptive disability under Listing §12.04, the listing for affective 

disorders, a claimant “must meet the requirements in both paragraphs A and B, or meet 

the requirements in paragraph C.” Himes, supra, 585 Fed.Appx. at 762 (citation omitted).

 4 “Medical opinions are ‘statements from physicians and psychologists or other 

acceptable medical sources that reflect judgments about the nature and severity of [a claimant’s] 

impairment[s].’” Himes, supra, 585 Fed.Appx. at 762, quoting 20 C.F.R. §§ 404.1527(a)(2) & 

416.927(a)(2).

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Paragraph A requires medically documented persistence, either 

continuous or intermittent, of a qualifying depressive syndrome, manic 

syndrome, or bipolar syndrome. Paragraph B requires that the medically 

documented persistent syndrome result in at least two of the following: 

(1) marked restriction of activities of daily living; (2) marked difficulties in 

maintaining social functioning; (3) marked difficulties in maintaining 

concentration, persistence, or pace; or (4) repeated episodes of 

decompensation, each of extended duration. Marked means more than 

moderate but less than extreme, and occurs when the degree of limitation 

seriously interferes with a claimant’s ability to function independently, 

appropriately, effectively, and on a sustained basis. Episodes of 

decompensation are exacerbations or temporary increases in symptoms or 

signs accompanied by a loss of adaptive functioning, as manifested by 

difficulties in performing activities of daily living, maintaining social 

relationships, or maintaining concentration, persistence, or pace. To have 

a repeated episode of extended duration, a claimant must have three 

episodes within one year, or an average of once every four months, each 

lasting at least two weeks.

Paragraph C requires a medically documented history of a chronic 

affective disorder of at least 2 years’ duration that has caused more than a 

minimal limitation of ability to do basic work activities, with symptoms or 

signs currently attenuated by medication or psychosocial support, in 

addition to one of the following: (1) repeated episodes of decompensation, 

each of extended duration; (2) a residual disease process resulting in such 

marginal adjustment that it is predicted that even a minimal increase in 

mental demands or change in the environment would cause 

decompensation; or (3) a current history of at least one years’ inability to 

function outside a highly supportive living arrangement, and an 

indication that this arrangement needs to be continued.

Id. at 763 (internal citations, quotation marks, and brackets omitted).

In this case, plaintiff makes no attempt to establish that her impairments meet the 

requirements in paragraph C (see Doc. 16); therefore, the sole focus herein will be 

whether Pentakota has established that she meets the requirements in both paragraphs 

A and B. See Himes, supra, 585 Fed.Appx. at 762. As for paragraphs A and B, plaintiff 

specifically contends in her brief that “[s]he exhibits bipolar syndrome with marked 

restriction of activities of daily living, marked difficulties in maintaining social 

functioning and marked difficulties in maintaining concentration, persistence or pace.” 

(Doc. 16, at 7.) Because Pentakota makes no argument that the ALJ erred in finding she 

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has not experienced repeated episodes of decompensation, each of extended duration 

(see id.), and the record fails to demonstrate three episodes of decompensation during a 

single year (see, e.g., Tr. 439 & 602 (June 2011 hospitalization for two or three days due to 

plaintiff being off her medications and alcohol abuse); Tr. 57 & 702-722 & 766 (March 

2012 hospitalization for five days caused by one of her medications, specifically 

Risperdal)), the Court’s task becomes one of determining whether the plaintiff has 

shown that she has “at least two of the following: (1) marked restriction of daily living; 

(2) marked difficulties in maintaining social functioning; [and] (3) marked difficulties in 

maintaining concentration, persistence, or pace[.]” Lee v. Commissioner, Social Security 

Administration, 551 Fed.Appx. 539, 542 (11th Cir. Jan. 8, 2014) (citation omitted).

This Court simply cannot agree with Pentakota’s argument that “[t]he ALJ has 

failed to identify any substantial evidence to support his decision that [she] does not 

meet Listing 12.04.” (Doc. 16, at 7.) Indeed, substantial evidence supports the ALJ’s 

decision that Pentakota did not satisfy Paragraph B, which is the proper framing of the 

issue. See Lee, supra. The medical evidence does not reveal that Pentakota had marked 

limitations in activities of daily living, maintaining social functioning, or maintaining

concentration, persistence or pace. For instance, although Dr. David W. Hodo noted 

during his one-time examination of plaintiff on July 17, 2012 that Pentakota “did have 

trouble concentrating[]” (Tr. 773), another one-time examiner indicated that her 

concentration was not impaired (Tr. 339-340) and the record contains other indications 

that her concentration was not impaired or otherwise was okay when on appropriate 

medication (see, e.g., Tr. 334 & 336). Moreover, there are numerous indications in the 

medical record that plaintiff had a circle of friends and never exhibited any severe 

problems with social functioning. (Compare, e.g., Tr. 338 (“Mrs. P[entakota] does not 

appear to have any impairments in social functioning. This was evidence by display of 

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appropriate social skills. She reports [] that she has multiple friends an[d] has no 

problems initiating or sustaining friendships.” (emphasis supplied)) with Tr. 474 

(Pentakota reported good socialization skills), Tr. 475 (reference to Paul Smith, a friend), 

Tr. 722 & 784 (reference to a boyfriend); Tr. 484 & 773 (she goes to church as often as she 

can and attends the Baptist church); Tr. 779 (reference made to a “good friend”).) 

Finally, the medical evidence indicates that plaintiff’s grooming was appropriate (Tr. 

293, 296, 299, 302, 334, 336; see also, e.g., Tr. 353, 357, 407, 409 & 765 (“Well appearing, 

well nourished in no distress.”)), she is able to independently care for her grooming and 

hygiene (Tr. 338; see also Tr. 346 (“She is clean, well-groomed, well-dressed . . . .”)), and, 

as well, is able to engage in numerous other activities of daily living (Tr. 338 (she can 

drive and cook); Tr. 344 (she drives, shops, cooks, and performs household chores, 

including sweeping, mopping, vacuuming, washing dishing); Tr. 474 (Pentakota 

referenced doing extra things around her home); Tr. 773 (“She does some housework, 

and she cuts the grass sometimes.”); Tr. 779 (“She relaxes with her dog.”); Tr. 780 

(“Enjoying reading a good book. Client helps her mother most days.”) & Tr. 784 

(“Planted a garden for her mother. She and her boyfriend will keep up the garden for 

her mother.”).) This evidence is consistent with the Psychiatric Review Technique form 

completed by non-examiner, Dr. Harold Veits, on September 8, 2011 (Tr. 509-522 

(reflecting mild restriction of activities of daily living, moderate difficulties in 

maintaining social functioning and difficulties in maintaining concentration, persistence 

or pace, and one or two episodes of decompensation)), as well as the clear evidence of 

record that plaintiff’s mental condition is manageable when she takes her medications 

and the proper medications have been supplied for her use (compare Tr. 51 (plaintiff’s 

testimony that when her psychiatric medications are right and she is not using any 

alcohol or a controlled substance, her psychiatric condition significantly improves) with, 

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e.g, Tr. 439 & 602 (June 2011 hospitalization for two or three days due to plaintiff being 

off her medications and alcohol abuse); and Tr. 57 & 702-722 & 766 (March 2012 

hospitalization for five days caused by one of her medications, specifically Risperdal)), 

and supplies substantial support for the ALJ’s decision that Pentakota had mild 

restrictions in activities of daily living and moderate difficulties in social functioning 

and maintaining concentration, persistence or pace.5

To the extent Pentakota relies upon the Mental Medical Source Statement 

completed by one-time examiner Dr. David Hodo6 on July 24, 2012 (Tr. 774-775) as 

contradictory of the ALJ’s findings, such reliance need fail7 inasmuch as the ALJ 

identified specific and adequate reasons for rejecting the findings of Dr. Hodo (see, e.g., 

Tr. 26 (identification of reasons for rejecting Dr. Hodo’s “marked or extreme limitations 

in all functional areas”)), cf. Gilabert v. Commissioner of Soc. Sec., 396 Fed.Appx. 652, 655 

(11th Cir. Sept. 21, 2010) (per curiam) (“Where the ALJ articulated specific reasons for 

failing to give the opinion of a treating physician controlling weight, and those reasons 

are supported by substantial evidence, there is no reversible error.”), and plaintiff did 

 5 However, even assuming, that the ALJ erred in finding plaintiff had only 

moderate limitations in maintaining concentration, persistence, or pace, as opposed to marked 

limitations, “any error was harmless” because Pentakota had to meet two of the four criteria in 

Paragraph B, and she makes no argument (or showing) that she had the requisite episodes of 

decompensation that were of extended duration. See Himes, supra, 585 Fed.Appx. at 764.

6 The ALJ twice mistakenly identifies Dr. Hodo as plaintiff’s treating psychiatrist 

(see Tr. 24 & 26); he is not plaintiff’s treating psychiatrist, as he saw her on only one occasion, on 

July 17, 2012 (Tr. 772-773), and then some seven days later completed a mental medical source 

statement (Tr. 774-775).

7 In addition, to the extent plaintiff seems to suggest that the ALJ was prohibited 

from relying upon evidence of record existing prior to her amended onset date of June 20, 2011 

(Tr. 38), the undersigned cannot agree both because plaintiff has never “withdrawn” her claim 

for disability insurance benefits (compare Doc. 1, at 1 with Doc. 16, at 1), despite her date last 

insured of September 30, 2007 (Tr. 14), and because plaintiff cites to medical evidence of record 

existing prior to June 20, 2011, in support of her claims for relief (see Doc. 16, at 1-2 & 3-4).

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not identify in her brief as a specific assignment of error the ALJ’s rejection of Dr. 

Hodo’s functional limitations (see Doc. 16). 

Because Pentakota has not shown that the ALJ erred at step three, the only error

raised in her brief (see Doc. 16), and because substantial evidence supports the 

Commissioner’s decision as a whole,8 the decision denying benefits must be affirmed.

CONCLUSION

It is ORDERED that the decision of the Commissioner of Social Security denying 

plaintiff benefits be affirmed.

DONE and ORDERED this the 6th day of March, 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

 8 In other words, based upon the contents of the record as a whole (see, e.g., Tr. 43, 

51-56, 199-206, 293-308, 334-340, 343-347, 351-358, 381-395, 407-410, 439, 455-457, 472-522, 537-

539, 551-563, 602-623, 638, 675-690, 702-711, 721-722, 762-767 & 777-793), the Court cannot agree 

with the statement of plaintiff’s counsel during oral argument that the ALJ’s RFC determination 

(see Tr. 16-17) was a product of “atmospheric extraction.” 

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