United States District Court, N.D. Georgia, Atlanta Division
FINAL OPINION AND ORDER
F. KING UNITED STATES MAGISTRATE JUDGE
in the above-styled case brings this action pursuant to
§ 205(g) of the Social Security Act, 42 U.S.C. §
405(g), to obtain judicial review of the final decision of
the Commissioner of the Social Security Administration which
denied his disability application. For the reasons set forth
below, the court ORDERS that the
Commissioner's decision be AFFIRMED.
filed an application for a period of disability and
disability insurance benefits on March 2, 2015, alleging that
he became disabled on June 29, 2013. [Record
(“R.”) at 16, 119, 251-57]. After Plaintiff's
application was denied initially and upon reconsideration, a
hearing was held by an Administrative Law Judge
(“ALJ”) on August 24, 2017. [R. at 16, 56-109,
119-51]. The ALJ issued a decision denying Plaintiff's
claim on December 21, 2017, and the Appeals Council denied
Plaintiff's request for review on May 9, 2018. [R. at
1-7, 16-37]. Plaintiff filed a complaint in this court on
June 26, 2018, seeking judicial review of the
Commissioner's final decision. [Doc. 1]. The parties have
consented to proceed before the undersigned Magistrate Judge.
found that Plaintiff has mild degenerative disc disease of
the lumbar spine with Schmorl's node at inferior end
plate of L2, depressive/affective disorder, and obsessive
compulsive/anxiety disorder. [R. at 18]. Although these
impairments are “severe” within the meaning of
the Social Security regulations, the ALJ found that Plaintiff
does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. [R. at 20-23]. The ALJ found that Plaintiff is unable to
perform any of his past relevant work. [R. at 35]. However,
the ALJ found that there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform.
[R. at 36]. As a result, the ALJ concluded that Plaintiff has
not been under a disability from June 29, 2013, the alleged
onset date, through the date of the ALJ's decision. [R.
decision of the ALJ [R. at 16-37] states the relevant facts
of this case as modified herein as follows:
claimant has a history of impairments dating to the
1980's and 1990's. He reports having diabetes since
1989, a history of epilepsy since 1995, a history of chronic
hepatitis C since 1995, and hypertension for 20 years. The
claimant worked 20 to 25 years with these impairments,
performing medium and heavy exertional level work. (Exhibit
6E). He alleges that he became disabled from working on June
29, 2013, due to type 1 (insulin-dependent) diabetes
mellitus, epilepsy, chronic depression, chronic low back pain
due to osteoarthritis, chronic hepatitis C, and hypertensive
cardiovascular disease. (Exhibit 2E, p. 2). The claimant is
63 years old and was advanced age at his alleged onset date.
He has not worked since the alleged onset date, and has not
applied for Social Security Administration
(“SSA”) early retirement benefits. The claimant
acknowledges that he stopped working on the alleged onset
date because he was laid off. (Exhibit 2E, p. 2).
October 2012, months before the claimant was laid off on his
alleged onset date, he was seen by his longtime treating
doctor, Thomas DiFulco, M.D., for follow up of diabetes and
hypertension. The claimant's blood sugars were
“doing well” and his last hemoglobin A1C was 5.6.
Hypertension was stable. He also had experienced “no
seizures in many years” and took phenobarbital.
(Exhibit 4F, p. 7). Musculoskeletal exam was normal, memory
was normal, poor judgment and insight were noted, and there
was edema noted in his extremities. Medications were
continued, including hydrocodone for low back pain, with Dr.
DiFulco noting that the claimant “uses this for [low
back pain] caused by lifting heavy objects at work.”
(Exhibit 4F, pp. 8-9; Exhibit 11F, p. 67; Exhibit 12F, p.
October 2013, the claimant reported that he was depressed
since he lost his job and that his sugars were fluctuating
because he was not being regular with mealtimes. He was
“not having problems with chest pain, shortness of
breath, dizziness, or swelling.” (Exhibit 4F, p. 13;
duplicate at Exhibit 8F, p. 50). On exam, the claimant
appeared depressed but had appropriate mood and affect, and
normal insight and judgment were noted. Musculoskeletal exam
was normal, and he had no edema. He was started on Paxil for
depression. (Exhibit 4F, pp. 15-16; duplicate at Exhibit 8F,
pp. 52-53; Exhibit 12F, p. 16).
November 2013, the claimant reported having a lot more
motivation since he started taking Paxil, and he stated that
he “thinks a lot of the problem is situational due to
not having a job.” He weighed 180 pounds with a body
mass index (“BMI”) of 26.58, and his blood
pressure was 118/78. (Exhibit 4F, p. 18; duplicate at Exhibit
8F, p. 32; Exhibit 12F, p. 13). A cursory exam was
unremarkable. (Exhibit 4F, p. 19).
progress notes from Dr. DiFulco from April 2014 through
January 2016 describe cursory exams at best, including blood
pressure readings. (Exhibit 12F, pp. 1-8, 11-12). Otherwise,
the doctor's treatment notes reveal that Plaintiff's
vital signs were taken and lab tests were ordered during
office visits or that Plaintiff did not see Dr. DiFulco at
all but simply called the office for medication management.
(Exhibit 4F, 7F, 8F, 9F, 10F, 11F).
Atlanta treatment records document a diagnosis of
obsessive-compulsive disorder (“OCD”), as well as
bipolar disorder NOS, personality disorder traits, and a
history of alcohol dependence in remission. (Exhibit 1F, 5F,
15F). Depression was noted to be situational related to the
work layoff and his father's passing. (Exhibit 1F, pp. 1,
25). The claimant began treatment after being arrested for
shoplifting coins in June 2014. (Exhibit 1F, pp. 3, 25).
Treatment records from PACT Atlanta note that he had begun
collecting coins after he lost his job and that he may have
had a manic episode prior to this theft. (Exhibit 1F, pp. 9,
27). He had increased anxiety related to this event with 12
hours spent in jail. (Exhibit 1F, p. 25).
on psychiatric evaluations by Todd Antin, M.D., in July 2014,
the claimant was diagnosed with alcohol dependence in
remission, bipolar NOS, and OCD. Paxil was increased for OCD
tendencies. (Exhibit 1F, pp. 18, 21, 27). His case was
diverted into the local mental health court. (Exhibit 1F, pp.
1, 3). Treatment records in February 2015 show that the
claimant reported that he could no longer work due to both
medical and psychiatric reasons and that he remained very
depressed overall, with little response to Paxil. (Exhibit
1F, p. 2; duplicate at Exhibit 5F, p. 12). However, Dr. Antin
noted in September 2014 that medications were “working
effectively but he has neglected his therapy to a certain
extent.” (Exhibit 1F, p. 16). Therapy notes indicate
that his treatment was effective. (Exhibit 1F, pp. 6, 8, 11,
13, 19, 23). Mental status exams consistently described
normal concentration and attention, normal/intact memory, and
normal/good judgment. (Exhibit 1F, pp. 1, 9, 15, 17; Exhibit
3F, p. 4).
February 9, 2015, the claimant presented to Dr. DiFulco for a
“family consultation.” The treatment record
reflects no exam, but labs were ordered, and diabetes
mellitus, juvenile, was assessed as controlled. (Exhibit 4F,
pp. 36-38). Contemporaneous handwritten progress notes
indicate a cursory exam, noting that the claimant was
“chronically ill appearing, ” still with no blood
pressure reading. The notes also indicate that the claimant,
his mother, and his sister were discussing disability and
asking Dr. DiFulco for a letter stating that the claimant was
disabled. (Exhibit 7F, p. 5; duplicates at Exhibit 4F, p. 44;
Exhibit 12F, p. 8).
March 2015, a month after the claimant told Dr. Antin that he
remained very depressed overall, he told his therapist that
“he has been feeling much less depressed, much better
since seeing Dr. Antin recently, believes meds are helping
plus the increased socialization he has been experiencing as
part of his legal requirements for diversion program, mens
group he has been attending.” (Exhibit 5F, p. 9).
Therapy notes indicate that the claimant's current
treatment was effective. (Exhibit 5F, pp. 1, 3, 6, 7, 10).
Dr. Antin opined that the claimant was “currently
functioning at an improved level” and “showing
good improvement in mood symptoms.” (Exhibit 5F, pp. 2,
consultative exam in May 2015, the physical and mental status
exams were unremarkable. The claimant reported that all the
medications that he had taken for years worked. X-rays showed
mild degenerative changes of the lumbar spine with no acute
osseous pathology, i.e., disc space narrowing and small
vertebral body osteophyte formation at ¶ 2-3, minimal
disc space narrowing at ¶ 4-5, and mild facet
arthropathy at ¶ 4-5 and L5-S1. (Exhibit 3F; duplicate
x-ray at Exhibit 18F, p. 5). Based on the history given and
exam findings, Jessie Al-Amin, M.D., diagnosed type 1
diabetes mellitus on insulin, history of epilepsy with no
recent seizures on medication, chronic depression currently
asymptomatic except for insomnia with medication, chronic low
back pain secondary to osteoarthritis, mild degenerative
changes of the lumbar spine noted on x-ray, and chronic
Al-Amin opined that the claimant can reach overhead and
handle objects without difficulty and has no difficulty
climbing stairs. Apparently based on the claimant's
report that he can lift 30 pounds, sit for two hours, and
stand for one hour, Dr. Al-Amin opined that the claimant may
have difficulty carrying more than 30 pounds and may have
difficulty with prolonged sitting and prolonged standing. On
exam, the claimant had normal motor strength of 5/5
throughout, normal gait and posture, and only a slightly
reduced range of motion in the neck, back, hips, and knees.
The claimant had no difficulty rising from a sitting to
standing position, could bend over while sitting, but had
difficulty squatting. Dr. Al-Amin opined that stooping or
bending may be problematic. He also noted that the
claimant's fine and gross motor coordination appeared
intact and that the claimant had good hand-eye coordination.
1, 2015, the claimant presented after falling in the bathroom
and hurting his ribs. X-rays were ordered. The claimant
weighed 201 pounds with a BMI of 29.68. Blood pressure is not
indicated, but unspecified hypertension, as well as
controlled diabetes and depression, were assessed. (Exhibit
4F, pp. 83-86). Contemporaneous handwritten progress notes
show that the claimant's blood pressure was 88/60 and
that he was ill-appearing and very tender at the right chest
wall. Lasix was discontinued and other blood pressure
medications were put on hold. (Exhibit 12F, p. 6). X-rays on
June 1, 2015, showed suspected mildly/minimally displaced
fracture of the seventh right-sided rib. (Exhibit 4F, p. 67;
duplicates at Exhibit 7F, p. 4; Exhibit 18F, p. 11).
13, 2015, Dr. DiFulco noted that the claimant had fallen one
time in the last year and was “not at risk for
falls.” (Exhibit 4F, pp. 93-97; multiple duplicates at
Exhibit 10F). The contemporaneous handwritten progress note
shows the claimant had “started walking again”
and that he had lost eight pounds since his last visit.
(Exhibit 12F, p. 4).
July 21, 2015, through September 25, 2015, there are only
patient communications with Dr. DiFulco. (Exhibit 7F, pp.
35-46; duplicates at Exhibit 10F). As seen on October 12,
2015, the claimant weighed 203 pounds, with a BMI of 29.98.
(Exhibit 10F, p. 14). A cursory exam was unremarkable. Dr.
DiFulco noted that the claimant's mood seemed positive.
(Exhibit 12F, p. 2). On October 15, 2015, Dr. DiFulco stated
that the claimant's diabetes was “well
controlled.” The physician advised the claimant to
continue working on his diet and to exercise regularly if
possible. (Exhibit 10F, p. 10). Patient communications and
incoming calls for medications follow through December 2015.
(Exhibit 11F, pp. 95-107).
January 11, 2016, the claimant was seen by Dr. DiFulco and
weighed 211 pounds with a BMI of 31.16. According to the
handwritten progress note, the claimant was feeling good.
“He says sometimes he's manic, then he gets
lethargic. He says diet is not good.” A cursory exam
was unremarkable. (Exhibit 11F, p. 87; Exhibit 12F, pp. 1,
January 13, 2016, Dr. DiFulco informed the claimant that he
currently had a hemoglobin A1C of 7.4 and that no change in
medication was needed. The physician advised the claimant to
“focus more on the need to cut back on calories and
foods that are not good for a diabetic diet.” Dr.
DiFulco also wrote, “This is the highest A1C you have
had to my knowledge.” (Exhibit 11F, pp. 79, 83).
February 2016, the claimant presented to Dr. Antin for
medication refills. The claimant reported that medications
were working well. He also reported visiting his mother
frequently. He stated that he “knows for a fact that he
will never work again” and that he felt that being
unemployed had made him gain weight. Treatment notes show
that the claimant was “doing better with his diet
because he cannot stand being overweight anymore.”
Mental status exam showed normal concentration and attention,
impaired short-term memory, good judgment, no change in
energy, normal psychomotor activity, and euthymic mood. Dr.
Antin noted that the claimant “has made great strides
in his overall treatment” and was tolerating
medications well other than some motor side effects. (Exhibit
15F, pp. 3-4).
DiFulco ordered studies on April 27, 2016, to help identify
and support the claimant's history of seizures and low
back pain. (Exhibit 18F, pp. 12-27). MRI of the lumbar spine
again showed Schmorl's node involving the inferior end
plate of L2, with adjacent edema which might be the source of
his lower back pain, but “there is no posterior disc
bulging or stenosis at this level.” There was also a
minimal disc bulge at ¶ 1-2, but no stenosis. (Exhibit
18F, pp. 28-29). Dr. DiFulco advised the claimant that the
Schmorl's node at ¶ 2 “is a protrusion of
cartilage into the vertebral bod[y] end plate [and] into the
vertebra. This is likely the cause of your chronic back
pain.” (Exhibit 19F, p. 2). An EEG was normal. (Exhibit
18F, p. 30).
medical source statement dated April 6, 2016, Dr. Antin
opined that the claimant has good ability to make performance
adjustments for simple job instructions and function
independently, but only fair ability to use judgment, follow
rules, interact with a supervisor, maintain attention and
concentration, and make adjustments for detailed but not
complex job instructions. Dr. Antin opined that the claimant
has poor ability to make adjustments for complex job
instructions, relate to coworkers, deal with the public, and
deal with work stress. Dr. Antin explained generally that the
claimant has poor ability to work with others. Dr. Antin
found that the earliest date of the proposed limitations was
June 21, 2014. (Exhibit 14F, pp. 3-4; duplicate at Exhibit
16F). The psychiatrist opined that the claimant has only fair
ability to make personal social adjustments. Dr. Antin
indicated that the claimant has many symptoms of a depressive
syndrome but no symptoms of a manic syndrome or bipolar
syndrome. (Exhibit 14F, pp. 4-6). Dr. Antin assessed marked
difficulties in maintaining social functioning and moderate
deficiencies of concentration, persistence, or pace. Dr.
Antin opined that the claimant's condition prevents him
from engaging in gainful employment generally due to
depression, fatigue, poor concentration, and poor
socialization. (Exhibit 14F, pp. 7-8).
2016, the claimant reported to Dr. Antin “that his mood
has been stable lately” and that “he feels a lot
better.” The claimant stated that he often visited his
mother with his sister, that he had a good support system,
and that his sleep had improved. He also stated that he felt
that his short term memory was getting worse and that his
concentration had decreased. He reported that the mental
health court diversion program had “changed his life,
it made him more social.” Dr. Antin noted that the
claimant had done so well that he was being released from the
program the next month. (Exhibit 20F, pp. 8-9; duplicate at
Exhibit 23F, pp. 7-8).
seen by Dr. Antin on September 8, 2016, the claimant stated
“that his mood has been stable lately. He feels better
when he is able to interact with people and socialize. His
mother passed away 2 months ago, after which his brother
moved back here. He stated that he feels better, . . . he
might be a little depressed from time to time but nothing
major, not like before.” Although the court diversion
program had ended in June 2016, the claimant “continues
to attend the meetings because he feels that they help him
feel less isolated. He states that the program made him more
social, and he states that he is happier. He was placed in
the program as a result of shoplifting and subsequent
arrest.” Dr. Antin assessed that the ...