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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

NOAH J. LEE, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 15-0177-M

CAROLYN W. COLVIN, :

Social Security Commissioner, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 405(g), Plaintiff seeks 

judicial review of an adverse social security ruling denying a 

claim for disability insurance benefits (Docs. 1, 11). The 

parties filed written consent and this action has been referred 

to the undersigned Magistrate Judge to conduct all proceedings 

and order judgment in accordance with 28 U.S.C. § 636(c), 

Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc. 15). 

Oral argument was heard on November 23, 2015. After considering 

the administrative record, the memoranda of the parties, and 

oral argument, it is ORDERED that the decision of the 

Commissioner be AFFIRMED and that this action be DISMISSED.

This Court is not free to reweigh the evidence or 

substitute its judgment for that of the Secretary of Health and 

Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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Cir. 1983), which must be supported by substantial evidence. 

Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial 

evidence requires “that the decision under review be supported 

by evidence sufficient to justify a reasoning mind in accepting 

it; it is more than a scintilla, but less than a preponderance.” 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting 

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

At the time of the administrative hearing, Lee was twentynine years old, had completed a high school equivalency

education (see Tr. 24; Doc. 11 Fact Sheet), and had previous 

work experience as a dishwasher, a roustabout, and a 

construction worker (Tr. 65, 76). Plaintiff alleges disability 

due to Bipolar Disorder, Schizoaffective Disorder, Major 

Depressive Disorder with Psychotic Features, Chronic Cannabis 

Abuse, and Chronic Poly-Substance Dependence (Doc. 11 Fact 

Sheet).

The Plaintiff protectively applied for disability insurance 

benefits on September 27, 2012, asserting a disability onset 

date of December 1, 2011 (Tr. 20, 181-82). An Administrative 

Law Judge (ALJ) denied benefits after determining that Lee met 

disability Listing requirements for Affective Disorders and 

Substance Addiction Disorders; the ALJ further found that if 

Plaintiff discontinued his drug use, he would be capable of 

working at specified jobs (Tr. 20-40). Plaintiff requested 

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review of the hearing decision (Tr. 7-9), but the Appeals 

Council denied it (Tr. 1-5).

Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, Lee alleges 

that: (1) The ALJ did not properly consider the opinions and 

diagnoses of his treating physicians; (2) the evidence does not 

support the ALJ’s residual functional capacity (hereinafter RFC) 

finding; and (3) the ALJ did not properly develop the record 

(Doc. 11). Defendant has responded to—and denies—these claims 

(Doc. 12). The relevant evidence of record follows.

On August 22, 2011, Plaintiff went to West Florida Hospital 

with “the shakes,” stating that he wanted to stop using drugs; 

his drug screen was positive for cannabinoids, benzodiazepines, 

and opiates (Tr. 475-93). He was discharged the next day.

On August 26, Plaintiff went to Lakeview Center, saying 

that he was suicidal after taking himself off of methadone; he 

had mood swings, was depressed, anxious, paranoid, and 

exhibiting obsessive behavior (having to touch everything with 

his finger) (Tr. 511-15). The Examiner noted Lee was oriented 

in four spheres, was of average intelligence, and had fair 

judgment. 

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On February 2, 2012, Plaintiff was seen at Tri County 

Medical Center for chronic, mild lumbar back pain, radiating 

occasionally to the neck; the Doctor noted scoliosis, by 

history, and anxiety and prescribed Tramadol1 and Xanax2 (Tr. 

349-50). 

On April 2, Lee was admitted, for one night, to Atmore 

Community Hospital for a drug overdose; he tested positive for 

benzodiazepines, methamphetamines, amphetamines, and 

cannabinoids (Tr. 307-21). Plaintiff was noted to have a 

history of bipolar disorder, paranoid schizophrenia, and social 

anxiety.

On April 5, Lee went to Southwest Alabama Behavioral Health 

Care for individual therapy; he was anxious, delusional, sad, 

and suicidal with homicidal thoughts (Tr. 333-37, 343; see 

generally Tr. 324-43). Plaintiff had five more sessions through 

August 31, 2012 during which he voiced paranoia, anger, and 

thoughts of hurting someone; he was depressed and smoked 

marijuana to calm his nerves (Tr. 338-42).

On May 1, Plaintiff was seen at Tri County to get his 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1Tramadol “is indicated for the management of moderate to 

moderately severe chronic pain in adults who require around-the-clock 

treatment of their pain for an extended period of time.” Error! Main 

Document Only.Physician's Desk Reference 2520 (66th ed. 2012).

2Error!%Main%Document%Only.Xanax is a class four narcotic used for 

the management of anxiety disorders. Physician's Desk Reference 2294 

(52nd ed. 1998).

Case 1:15-cv-00177-M Document 18 Filed 11/24/15 Page 4 of 14
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prescriptions refilled and for anxiety and abnormal weight loss 

(Tr. 347-48). On September 4, 2012, Lee had normal range of 

motion (hereinafter ROM), with no noted joint tenderness or 

swelling; in addition to refilling his Xanax, the Doctor 

prescribed Flexeril,3 an NSAID, and an antidepressant (Tr. 345-

46). 

On September 12, Lee was admitted to Baptist Hospital for 

six nights for depression and an overdose of multiple 

medications requiring intubation; he reported being anxious, 

paranoid, and having auditory hallucinations (Tr. 352-93). 

Plaintiff “was feeling up and down when he did not take his 

medications” (Tr. 353). A drug screen was positive for 

cannabinoids and benzodiazepines. At discharge, Lee was in no 

acute distress, had no formal thought disorder, and denied being 

suicidal, homicidal, or hopeless; he was prescribed an 

antidepressant and encouraged to follow-up with psychiatric 

protocols.

On September 19, Plaintiff went to Atmore Community 

Hospital Emergency Room after having what was thought to be a 

seizure as a reaction to one of his medications (Tr. 397-412, 

621-29). He was given an antihistamine, monitored, and 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3Error!%Main%Document%Only.Flexeril is used along with “rest and 

physical therapy for relief of muscle spasm associated with acute, 

painful musculoskeletal conditions.” Physician's Desk Reference 1455-

57 (48th ed. 1994).

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released.

On October 3, 2012, Lee went to Lakeview Center and was 

evaluated for his thoughts of committing suicide and homicide 

that was found to be low risk (Tr. 414-16, 633). 

On October 23, psychiatric advanced registered nurse 

practitioner (hereinafter ARNP) Cheryl Pawloski examined

Plaintiff, finding him irritable and having psychomotor 

agitation; he became angry when she indicated that he needed to 

quit taking the Xanax and threatened to find another provider

(Tr. 417-19, 634-35). On November 2, Dr. Heather Rohrer 

examined Lee and prescribed Mobic,4 Valium,5 and Zyprexa6 (Tr. 

423-24, 636-37). On December 18, Plaintiff reported taking only 

his prescribed medications; the ARNP reported that he was alert, 

fully oriented, and that his thought process was goal-directed 

(Tr. 425-26, 638-39). On January 21, 2013, Dr. Cynthia 

Javellana reported that Lee was being admitted, from an 

Emergency Room through the Baker Act, to Lakeview Center after 

indicating that “he was very depressed, stressed out, and was 

having thoughts of suicide” (Tr. 436, 499-502; see generally Tr. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4Error!%Main%Document%Only.Mobic is a nonsteroidal anti-inflammatory 

drug used for the relief of signs and symptoms of osteoarthritis and 

rheumatoid arthritis. Physician's Desk Reference 855-57 (62nd ed. 

2008). 

5Error!%Main%Document%Only.Diazepam, better known as Valium, is a 

class IV narcotic is used for treatment of anxiety. Physician's Desk 

Reference 2765-66 (62nd ed. 2008). 

6Error!%Main%Document%Only.Zyprexa is used for the “management of the 

manifestations of psychotic disorders.” Physician's Desk Reference

1512 (52nd ed. 1998). 

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436-38). Plaintiff admitted to taking drugs and drinking the 

previous weekend. Two days later, Lee admitted feeling better 

and thinking better; he was discharged, with adequate insight 

and judgment, with a prescription for BuSpar7 (Tr. 439-40). On 

January 29, 2013, Pawloski noted he was oriented in four spheres 

and was goal-directed; he had fair insight and judgment 

generally, but it was “very limited around his substance use and 

the seriousness of his mental illness” (Tr. 441; see generally 

Tr. 441-42). Vistaril8 was prescribed. On February 26, 

Plaintiff reported feeling anxious but that he was not using any 

substances (Tr. 443-44). 

On March 27, Lee went to the Atmore Community Hospital 

following a suicide attempt, his third, by taking twelve 

Zyprexa, twelve anti-depressants, a half bottle of Nyquil, and 

six Restoril9 (Tr. 597-606). His drug screen was positive for 

benzodiazepines, cocaine, and PCP. Plaintiff checked out of the 

hospital the next day against medical advice.

On March 29, Lee returned to Lakeview Center complaining of 

depression, auditory hallucinations, and feeling worthless, 

hopeless, helpless, and suicidal; he had smoked Marijuana and 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 7BuSpar is used to treat anxiety and irritability. See

http://www.drugs.com/buspar.html

8Vistaril is used to treat anxiety and tension and may be used to 

control nausea and vomiting. http://www.drugs.com/vistaril.html

9Error!%Main%Document%Only.Restoril is used for the short-term 

treatment of insomnia. Physician's Desk Reference 1894-96 (52nd ed. 

1998). 

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Spice the night before (Tr. 432-35, 640-644). The Examiner 

noted that Plaintiff had depressed mood and affect, poor 

judgment and insight, and fair attention and concentration. 

Thought content was depressed, angry, paranoid, and anxious 

while his thought process was delusional and circumstantial with 

auditory hallucinations. The next day, he was oriented in four 

spheres with limited insight and judgment; Lee expressed hatred 

toward random people, voicing ways of hurting them (Tr. 445-49, 

645-46). Seroquel10 was substituted for the Zyprexa. On April 

4, Plaintiff was oriented in three spheres, but felt anxious and 

depressed, but not suicidal or homicidal; insight and judgment 

continued to be limited (Tr. 450-51). He was discharged with a 

prescription for Thorazine11 and was to follow up with 

psychiatric treatment.

On June 10, Plaintiff was admitted to West Florida Hospital

for three nights after being off of his medications for two 

months; a drug screen was positive for cannabinoids and 

benzodiazepines (Tr. 521-53). At admission, Lee admitted being 

depressed and sad; Plaintiff began taking his medications while 

hospitalized and his depression, anxiety, and sleep improved. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 10Seroquel is used in the treatment of schizophrenia. Error! Main 

Document Only.Physician's Desk Reference 670-72 (62nd ed. 2008).

11Thorazine is an antipsychotic medication used to treat mood 

disorders, the manic phase of manic-depressive disorder, and anxiety. 

See http://www.drugs.com/cdi/thorazine.html

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Discharge medications were BuSpar, Celexa,12 and Thorazine.

On June 14, 2013, the day after being discharged, Lee 

returned to the Emergency Room at West Florida Hospital and was 

admitted to the Hospital for depression, suicidal ideation, and 

auditory hallucinations; he reported that he had not filled his 

prescriptions, so had not been taking them, after his previous 

discharge (Tr. 554-96). Plaintiff was discharged after three 

days in the hospital in improved condition.

On July 16, Lee reported to ARNP Pawloski that he was sad, 

depressed, irritable, and anxious; he reported that he was not 

smoking Marijuana and that that had helped (Tr. 452-53, 647-48). 

Plaintiff also reported that he was “so much better on his 

medications” (Tr. 452). He was oriented in four spheres with 

fair insight and judgment. Depakote13 was added to Lee’s medical 

regimen; therapy was encouraged. On August 27, Plaintiff stated 

that his medications seemed to be helping him sleep; he was 

somewhat sleepy and was not clear of thought (Tr. 630-32). 

Judgment was good and judgment was fully intact.

On September 6, Plaintiff went to Atmore Community Hospital 

ER to be treated for priapism (Tr. 608-20). He was transferred 

to Mobile Infirmary where he reported that he did not drink 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 12Celexa is used in treating depression. Error! Main Document 

Only.Physician's Desk Reference 1161-66 (62nd ed. 2008).

13Error!%Main%Document%Only.Depakote is used for the treatment of 

seizures. Physician's Desk Reference 428-34 (52nd ed. 1998). 

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alcohol or use illicit drugs; he was treated with corporal 

irrigation and an injection with a decongestant (Tr. 649-55).

This concludes the Court’s review of the evidence.

In bringing this action, Lee first asserts that the ALJ did 

not properly consider the opinions and diagnoses of his treating 

physicians. Plaintiff references Drs. Messina, Javellana, and 

Narahari (Doc. 11, pp. 4-5). It should be noted that "although 

the opinion of an examining physician is generally entitled to 

more weight than the opinion of a non-examining physician, the 

ALJ is free to reject the opinion of any physician when the 

evidence supports a contrary conclusion." Oldham v. Schweiker, 

660 F.2d 1078, 1084 (5th Cir. 1981);14 see also 20 C.F.R. § 

404.1527 (2013).

The ALJ faithfully reviewed the evidence of record, 

including that of the physicians on which Lee brings this claim. 

After doing so, the ALJ made the following findings with regard 

to the conclusions of those medical sources:

As for the opinion evidence, the 

undersigned has assigned some evidentiary 

weight to information contained in the 

hospital records and reports and in the 

mental health treatment records regarding 

the claimant’s psychiatric impairments and 

his ongoing polysubstance abuse. Some 

evidentiary weight has been assigned to Dr. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

!!!!! 14The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions 

of the former Fifth Circuit rendered prior to October 1, 1981.

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Javellana’s and Dr. Narahari’s descriptions 

of the claimant’s major depressive disorder 

as “moderate” as stated in the Lakeview 

Center treatment records (Exhibit 10F). 

There are no other treating or examining 

medical source opinions regarding the nature 

and severity of the claimant’s diagnosed 

mental impairments.

(Tr. 32). 

Plaintiff has asserted that the evidence does not support 

the ALJ’s RFC finding.15 The Court notes that the ALJ is 

responsible for determining a claimant’s RFC. 20 C.F.R. § 

404.1546 (2015). That decision cannot be based on “sit and 

squirm” jurisprudence. Wilson v. Heckler, 734 F.2d 513, 518 

(11th Cir. 1984). However, the Court also notes that the social 

security regulations state that Plaintiff is responsible for 

providing evidence from which the ALJ can make an RFC 

determination. 20 C.F.R. § 404.1545(a)(3). 

In his decision, the ALJ found that Plaintiff’s impairments 

met the requirements of Listings 12.04 and 12.09 for Affective 

Disorders and Substance Addiction Disorders, respectively (Tr. 

30). However, the ALJ went on to find that if Lee stopped his 

substance abuse, he would not still have an impairment or 

combination of impairments that would meet these Listing 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 15The Court acknowledges that it has not yet discussed the 

substance of Lee’s claim regarding the opinions and conclusions of his 

treating physicians. However, Plaintiff’s first claim was subsumed in 

this second claim and the Court chooses to address them together.

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requirements (Tr. 33). Then the ALJ fashioned an RFC that set 

out Lee’s capabilities, finding him capable of performing 

specific jobs (Tr. 35-39). 

In bringing his first two claims, Plaintiff seemingly 

forgets that the medical record consists, almost exclusively, of 

his multiple substance abuse problems. During those rare 

periods of sobriety when Plaintiff following his prescribed 

medication regimen, Lee acknowledged he was doing much better 

(see Tr. 443, 452, 638). Those periods, however, were shortlived and are only barely reflected in the record. While 

treating physicians indicated debilitating mental impairments, 

those diagnoses were given while Plaintiff was abusing alcohol 

and drugs and failing to follow their advice. As noted by the 

ALJ, “[t]here have been no credible medical opinions in the 

record which indicate that the claimant has been disabled from 

all work or even has had limitations more stringent than those 

determined in this decision, absent drug abuse” (Tr. 36). This 

finding remains unrefuted.16 Plaintiff is reminded that he 

“bears the burden of proving that the substance abuse is not a 

contributing factor material to the disability determination.” 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16The Court notes Lee’s concern that the ALJ did not state the

weight given various Doctor’s GAF scores (Doc. 11, p. 5). GAF scores 

have no “direct correlation to the severity requirements of the mental 

disorders listing.” See 65 Fed.Reg. 50746, 50764-65 (Aug. 21, 2000). 

The scores are even less reliable in light of Lee’s self-abuse. The 

Court further fails to understand Plaintiff’s concern that there is no 

“opinion from a non-examining reviewing physician” (Doc. 11, p. 5).

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Doughty v Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001). Lee’s 

claims are without merit.

Plaintiff next claims that the ALJ did not properly develop 

the record. More specifically, Lee argues that the ALJ should 

have ordered a consultative psychological examination (Doc. 11). 

The Eleventh Circuit Court of Appeals has required that "a full 

and fair record" be developed by the ALJ even if the claimant is 

represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735 

(11th Cir. 1981). However, the ALJ “is not required to order a 

consultative examination as long as the record contains 

sufficient evidence for the [ALJ] to make an informed decision.” 

Ingram v. Commissioner of Social Security Administration, 496 

F.3d 1253, 1269 (11th Cir. 2007) (citing Doughty, 245 F.3d at 

1281). 

The Court notes finds no merit in this claim. The morethan-three-hundred-pages of medical evidence in this record 

consists, almost exclusively, of medical personnel in the mental 

health arena counseling Plaintiff to quit taking drugs, quit 

drinking, take the medications prescribed, and follow through 

with the various therapies available to help him with his 

psychological/psychiatric problems. Adding another voice to the 

choir would be of no benefit under these circumstances.

Plaintiff has raised three different claims in bringing 

this action. All are without merit. Upon consideration of the 

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entire record, the Court finds "such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion." Perales, 402 U.S. at 401. Therefore, it is 

ORDERED that the Secretary's decision be AFFIRMED, see 

Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and 

that this action be DISMISSED. Judgment will be entered by 

separate Order.

DONE this 23rd day of November, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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