Brenda A. Wind v. Jo Anne B. Barnhart

133 F. App'x 684
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 2, 2005
Docket04-16371; D.C. Docket 03-00329-CV-3-RV-MD
StatusUnpublished
Cited by121 cases

This text of 133 F. App'x 684 (Brenda A. Wind v. Jo Anne B. Barnhart) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brenda A. Wind v. Jo Anne B. Barnhart, 133 F. App'x 684 (11th Cir. 2005).

Opinion

PER CURIAM.

Plaintiff-Appellant Brenda A. Wind appeals through counsel the district court’s order affirming the administrative law judge’s (“ALJ’s”) denial of Wind’s applications for supplemental security income benefits (“SSI”), filed pursuant to 42 U.S.C. § 1383(c), and for disability insurance benefits (“DIB”), filed pursuant to 42 U.S.C. § 405(g). Wind argues on appeal that the ALJ’s decision not to grant benefits to her was not supported by substantial evidence because the ALJ (1) erroneously failed to determine that Wind suffered from the “severe” impairment of obesity, (2) failed to properly evaluate and weigh medical evidence, (3) failed to recontact Wind’s treating physician, and (4) posed an improper hypothetical question to the vocational expert (“VE”). For the reasons set forth more fully below, we affirm the district court’s order.

In February 2000, Wind filed an application for DIB and a report, alleging disability commencing February 1,1997, based on depression and anxiety attacks, and an application for SSI, based on an anxiety-related disorder. Both of her applications were denied through the reconsideration level. Wind then requested a hearing before an ALJ.

On December 18, 2001, at the time of the hearing, Wind was 46 years old; weighed 245 pounds; and had a high school diploma, training to be a certified nursing assistant, and some business school. Her past employment experience included working as a nursing assistant and as a home attendant. Wind stated that her doctor recommended that she stop working as a nursing aid in 1997, because of her depression. Wind also stated that she was taking Zoloft to treat her depression and her “bad panic attacks.”

Wind described her daily activities as including living in a house with her 15-year-old son, getting up at approximately 10 a.m., and going to bed at approximately 11 p.m., although she had difficulty sleeping. She stated that she “sometimes” did housework, cooking, washing dishes, and visiting with friends or relatives. She also drove her vehicle occasionally, enjoyed reading fiction and watching television, and sometimes went to church and walked for a few blocks. On her counsel’s questioning, Wind stated that she occasionally had crying spells from her nervousness. Wind also stated that she had high blood pressure, but that she managed this condition with medication.

The medical evidence before the ALJ revealed that, in May 1999, Dr. Cynthia Javellana, M.D., a psychiatrist, examined Wind on referral from Wind’s primary care physician, Dr. Carmen DeLaRosa, M.D. As part of this examination, Dr. Javellana observed that Wind (1) was neat and well-groomed; (2) appeared of average intellect; and (3) had fair insight, judgment, and coping abilities; and (4) had no acute physical distress. Dr. Javellana also found that, although Wind was pleasant and cooperative, she appeared sad and tearful and acknowledged feeling anxious, depressed, and helpless at times. Dr. Javellana diagnosed Wind as suffering from dysthymic disorder (a chronic disturbance of mood characterized by mild depression or loss of interest in usual activities) with anxiety symptoms.

In June 1999, the Commissioner directed Dr. A. Mitch Cooper, Ph.D, a psychologist, to examine Wind. Wind informed Dr. Cooper that she had been depressed and *687 anxious “on and off all [her] life.” Wind also stated that, although she had two to three panic attacks per day, these attacks recently had decreased in frequency and intensity. Wind believed that this improvement, along with her improved sleeping, was attributable to her taking Zoloft. Wind told Dr. Cooper that, on a typical day, she preferred to stay at home alone, straightened her house and did household chores, enjoyed making crafts and doing handiwork, sometimes painted or visited yard sales, liked to read and watch television, and volunteered at her church.

After completing his examination, Dr. Cooper determined that Wind was alert and oriented, her recent and remote memory were intact, her thoughts were logical and coherent with no indication of delusional material or bizarre content, her mood appeared depressed and somewhat anxious, her affect was consistent with her mood, she denied any suicidal ideation, and her capacity for insight and judgment for daily living were fair. Dr. Cooper diagnosed Wind with depressive disorder and panic disorder with mild agoraphobia; stated that her prognosis was “guarded”; and recommended that she receive individual psychotherapy to supplement her medication.

From July 1999 through April 2000, Dr. Javellana met briefly with Wind on five occasions, during which meetings Dr. Javellana noted that Wind’s mental status remained generally unchanged, assigned her a Global Assessment Functioning (“GAF”) score of 55, 1 and continued prescribing her Zoloft. In April 2000, the last time Wind met with Dr. Javellana, Wind complained of increased episodes of anxiety and depression. Dr. Javellana, however, noted that Wind was pleasant and cooperative, remained verbal and logical, denied delusions or paranoia, was mildly anxious and depressed, and was competent to give informed consent for treatment. Dr. Javellana again diagnosed Wind with dysthymic disorder and mood disorder, secondary to chronic pain; assessed a GAF of 55; and informed Wind that she would be transferring Wind’s case to a colleague for future follow-up care.

On June 20, 2000, Dr. Javellana completed a Residual Functional Capacities (“RFC”) Form, opining that Wind suffered from moderate 2 restrictions in her (1) activities of daily living; (2) concentration, persistence, and pace; (3) ability to understand, carry out, and remember instructions in a work setting; (4) ability to respond to coworkers and supervision in a work setting; and (5) her ability to perform simple and repetitive tasks. Dr. Javellana also determined that Wind had a moderate to marked restriction in maintaining social functioning. In addition, Dr. Javelanna indicated that Wind had not had episodes of deterioration or decompensation at work.

On the other hand, in an identical form Dr. Javellana completed on September 11, 2000, Dr. Javellana opined that Wind only suffered from moderate restrictions in maintaining her social functioning, along with her concentration, persistence, and pace. Also contrary to her June 2000 *688 assessment, Dr. Javellana determined that Wind suffered from marked restrictions in her activities of daily living, her ability to respond to supervision in a work setting, and her ability to perform repetitive tasks in a work setting. Moreover, Dr. Javellana opined that Wind had a GAF of 50 to 55, and that she was “unable to maintain work without further stabilization and rehabilitation.”

In addition to the admission of this medical evidence, a VE testified at Wind’s administrative hearing, stating that Wind’s past relevant work was as a nursing assistant and a home attendant, both of which were medium, semi-skilled work. The ALJ then asked the VE the following hypothetical question:

Assume I was to limit [Wind] to medium-type work ...

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