Riddle v. Astrue (CONSENT)

Filing 18

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 12/20/13. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
TIMOTHY RIDDLE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO.: 1:12-cv-787-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Timothy Riddle, protectively applied for child insurance benefits,

disability insurance benefits, and supplemental security income.

His application was

denied at the initial administrative level. Plaintiff then requested and received a hearing
before an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a
decision in which she found Plaintiff not disabled at any time through the date of the
decision. The Appeals Council rejected Plaintiff’s request for review of the ALJ’s
decision.

The ALJ’s decision consequently became the final decision of the

Commissioner of Social Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). The case is now before the court for review under 42 U.S.C. §

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.

405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all
proceedings and entry of a final judgment by the undersigned United States Magistrate
Judge. Pl.’s Consent to Jurisdiction (Doc. 7); Def.’s Consent to Jurisdiction (Doc. 6).
Based on the court’s review of the record and the briefs of the parties, the court
AFFIRMS the decision of the Commissioner.
II.

STANDARD OF REVIEW
An applicant for childhood disability benefits (“CDB”) has the burden of proving

their eligibility by establishing several factors. First, the applicant must prove they are
under a disability, as defined by § 216(I) and § 223(d) of the Social Security Act. 42
U.S.C. § 402(d)(1). Second, the applicant must be a child of the wage earner under
whose insurance they are applying. Id. The applicant must be under the age of 18, or
under a disability before they reach the age of 22. 42 U.S.C. § 402(d)(1)(B). Finally, the
applicant must prove they were dependent on the wage earner under whose insurance
they are claiming. 20 C.F.R. § 404.350.
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when
the person is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A).1
1

A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.

To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2006).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of
Impairments]
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
“not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).2
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at

2

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income
case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title
II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d
408 (5th Cir. 1981).

1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines3 (grids) or call a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
“Substantial evidence is more than a scintilla, but less than a preponderance. It is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support the decision of the ALJ, but instead must

3

See 20 C.F.R. pt. 404 subpt. P, app. 2.

view the record in its entirety and take account of evidence which detracts from the
evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No
similar presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff had not attained the age of 22 as of October 1, 2006, the alleged onset

date. Tr. 16. Plaintiff previously worked as a kitchen helper and industrial cleaner. Tr.
23. Following the administrative hearing, and employing the five-step process, the ALJ
found Plaintiff had not engaged in substantial gainful activity since the alleged onset date.
Tr. 16.

At Step 2, the ALJ found that Plaintiff suffers from the following severe

impairments: “borderline intellectual functioning; attention deficit/hyperactivity disorder
(‘ADHD’); mood disorder and psychotic disorder.” Tr. 17. The ALJ then found that
Plaintiff “does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments.” (Step 3) Id. Next, the ALJ found that
Plaintiff
has the residual functional capacity to perform a full range of work at all
exertional levels but the claimant is limited to work which will only require
the claimant to: perform simple, routine, repetitive tasks; maintain
attention and concentration for up to 2 hours at [a] time (with normal
breaks throughout the workday); have brief, superficial contact with the
public; work independently (although he can work in close proximity to
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others); have supportive, non-threatening supervision; and adapt to minimal
changes in the work setting.
Tr. 19. The ALJ then found that Plaintiff “has been capable of performing past relevant
work as a kitchen helper and/or industrial cleaner,” as such work “does not require
performance of work-related activities precluded by [Plaintiff]’s [RFC].” (Step 4) Tr. 23.
Accordingly, the ALJ determined that Plaintiff “has not been under a disability . . . from
October 1, 2006, through the date of this decision.” Tr. 24.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents three issues for this court’s consideration in review of the ALJ’s

decision: (1) whether the Commissioner’s decision should be reversed because “the ALJ
failed to comply with [SSRs] 82-59 and 96-7 in finding that Plaintiff has been noncompliant with prescribed treatment”; (2) whether the Commissioner’s decision should
be reversed because “the ALJ failed to consider the Global Assessment of Functioning
(GAF) scores assigned to Plaintiff by his treating and examining medical sources”; and
(3) whether the Commissioner’s decision should be reversed because “the Vocational
Expert’s (VE’s) testimony conflicted with the Dictionary of Occupational Titles (DOT),
and the ALJ failed to resolve the conflict, as required by SSR 00-4p.” Pl.’s Br. (Doc. 16)
at 7. The court will address each argument below.

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V.

DISCUSSION
A.

Whether the ALJ failed to comply with SSR 82-59 and 96-7 in finding
that Plaintiff has been non-compliant with prescribed treatment.

Plaintiff argues the ALJ erred by not considering the “valid justifications” of
Plaintiff’s noncompliance with treatment, “including psychological impairments,
borderline intellectual functioning and side effects of medications,” as is required by
SSRs 82-59 and 96-7. Pl.’s Br. (Doc. 13) at 5. Plaintiff asserts “[t]he ALJ stated that she
couldn’t find [Plaintiff] disabled because of non-compliance with prescribed treatment.”
Id. If the ALJ ended his statement there, it likely would be error. However, Plaintiff has
cut this quote short. The ALJ’s full statement was “Furthermore, because [Plaintiff] is
non-compliant with prescribed treatment, the [ALJ] could not find [Plaintiff] to be
disabled (even if his impairments were otherwise disabling, which they are not).” Tr.
23 (emphasis added).
Under SSRs 82-59 and 96-7, an ALJ is required to consider whether a claimant
has “justifiable cause” to excuse a finding of noncompliance with prescribed treatment
and whether the prescribed treatment would have made the claimant capable of
maintaining employment; however, these SSRs “only apply to claimants who would
otherwise be disabled within the meaning of the Act.” Mack v. Comm’r of Soc. Sec., 420
F. App’x 881, 883 (11th Cir. 2011) (unpublished). Further, Plaintiff’s reliance upon
Dawkins v. Bowen, 848 F.2d 1211 (11th Cir. 1988), as support for the ALJ’s alleged error
is misguided. In Dawkins, the Eleventh Circuit remanded a case to the ALJ to determine
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“whether appellant was disabled, without reference to her failure to follow prescribed
medical treatment.” 420 F. App’x at 1214. The Dawkins court then specified, “if the
ALJ determines that [the claimant] is disabled,” the ALJ must then consider whether
good cause excused any noncompliance. Id. (emphasis added). In other words, a
finding of disability serves as the trigger to the applicability of SSRs 82-59 and 96-7.
Here, the ALJ did not deny Plaintiff benefits on the basis of non-compliance.
Rather, it is clear that the ALJ determined Plaintiff did not qualify as disabled, with or
without the non-compliance. Therefore, SSRs 82-59 and 96-7 were never triggered as to
Plaintiff, and Plaintiff’s argument that the ALJ did not comply with those rulings fails.
B.

Whether the ALJ failed to consider the GAF scores assigned to Plaintiff
by his treating source.

Plaintiff argues that the ALJ failed to properly consider the many GAF scores
assigned to Plaintiff by his treating source and the Consultative Examiner (CE).
Specifically, Plaintiff asserts, “Over the relevant time period of treatment, [Plaintiff]
received 21 separate GAF scores . . . . These opinions of [Plaintiff]’s functioning were
not discussed or even mentioned at any point during the decision.” Pl.’s Br. (Doc. 13) at
8.

However, the ALJ’s failure to mention Plaintiff’s GAF scores does not require

remand.
While it is true the ALJ did not mention Plaintiff’s GAF scores, it is also true the
Social Security Administration is not bound by such scores. Sanders v. Astrue, 2013 WL
5411271, at *14 (N.D. Ala. Sept. 26, 2013) (“Failure to reference a GAF score is not,
8

standing alone, sufficient ground to reverse a disability determination.” (citing Howard v.
Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002)); Smith v. Comm’r of Soc. Sec.,
2011 WL 6217110, at * 7 (M.D. Fla. Nov. 1, 2011) (“[T]he ALJ did not err by failing to
include the GAF scores in his decision or by failing to state the weight he gave to each
score.”); Bailey v. Astrue, 2010 WL 3220302, at *9 (M.D. Fla. Aug. 13, 2010) (“The
ALJ’s failure to refer specifically to the GAF scores does not render the ALJ’s decision
unsupported by substantial evidence.”). The Social Security regulations provide that
GAF scores have no “direct correlation to the severity requirements of the mental
disorder listings.” Wind v. Barnhart, 133 F. App’x 684, 692 n.5 (11th Cir. 2005) (citing
Fed. Reg. 50746, 50764-65 (Aug. 21, 2000)). Thus, a GAF score is not entitled to any
specific weight and does not translate to a specific finding as to functional limitations.
Ward v. Astrue, 2008 WL 1994978, at *3 (M.D. Fla. May 8, 2008).
Second, Plaintiff provides the range of GAF scores he received as evidence of his
disability. Pl.’s Br. (Doc. 13) at 7-8. However, GAF scores by themselves are not
determinative of disability. Nichols v. Astrue, 2012 WL 3638827, at *9 (N.D. Fla. Aug.
7, 2012) (“GAF scores are not a direct indication of an individual’s disability status, but
rather are only recognized as a tool to assist the ALJ in forming a decision.”); Bailey,
2010 WL 3220302, at *8 (“‘Standing alone, a low GAF Score does not necessarily
evidence an impairment seriously interfering with a claimant’s ability to work.’”)
(quoting Lee v. Barnhart, 117 F. App’x 674, 678 (10th Cir. 2004)).
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Third, as Defendant responds, “[a]lthough the ALJ did not specifically refer to
Plaintiff’s GAF scores, the ALJ discussed the medical reports from Plaintiff’s treating
mental health professionals at South Central Alabama Mental Health Center . . . and
explained in detail the weight given to the medical source opinions.” Def.’s Br. (Doc 16)
at 12. “[T]here is no rigid requirement that the ALJ specifically refer to every piece of
evidence in his decision, so long as the ALJ’s decision . . . is not a broad rejection which
is not enough to enable [a reviewing court] to conclude that [the ALJ] considered [the
claimant’s] medical condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th
Cir. 2005) (internal quotation omitted).
While the ALJ did not discuss the assignment of GAF scores, she did fully
evaluate Plaintiff’s mental impairments and thoroughly discuss the examinations of
Plaintiff by Dr. Jordan and South Central Alabama Mental Health Center and the
resulting medical opinions. Tr. 17-18, 21-23. As the ALJ notes, Dr. Jordan’s opined that
Plaintiff “ha[d] no limitations in his activities of daily living,” “demonstrate[d] intact
concentration abilities,” and had a “generally intact long-term memory,” and that
Plaintiff’s “ability to carry out and remember instructions of a simple, one-step nature”
and “ability to respond well to coworkers, supervision, and everyday work pressures [are]
not compromised.” Id. The ALJ also discussed the medical evidence from South Central
Alabama Mental Health, including the following:

Plaintiff’s “bizarre” behavior,

“depressed” mood, and “tangential” thought process during a September 2009 visit;
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Plaintiff’s “normal” behavior, “level” mood, and “goal[-]oriented” thought process
during a November 2009 visit; Plaintiff’s failure to take his medication as prescribed “for
no reason other than he doesn’t want to” at a December 2009 visit; and Plaintiff’s treating
source adding the diagnoses of psychotic disorder and mild mental retardation without
“provid[ing] an explanation for this diagnosis” at a May 2010 visit. Tr. 21-22. Thus,
while the ALJ did not discuss the GAF scores assigned to Plaintiff by Dr. Jordan and
South Central Alabama Mental Health, the ALJ did fully consider and discuss the
opinions of the physicians who assigned Plaintiff those GAF scores and explained the
weight given to the medical source opinions.
The ALJ concluded Plaintiff was not disabled after considering all of the evidence
on Plaintiff’s alleged mental impairments and the medical record does not indicate that
Plaintiff had any greater limitations than found by the ALJ. Thus, the ALJ’s decision is
supported by substantial evidence and the failure to refer specifically to the GAF scores
does not provide “sufficient ground to reverse [the] disability determination.” Sanders,
2013 WL 5411271, at *14.
C.

Whether the VE’s testimony conflict[ed] with the DOT requiring the ALJ
to resolve the conflict as required by SSR 00-4p.

Plaintiff argues that the Commissioner’s decision should be reversed because the
ALJ did not comply with SSR 00-4p when the ALJ failed to resolve a conflict between
the VE’s testimony and the DOT. Pl.’s Br. (Doc. 13) at 9. Specifically, Plaintiff asserts
that “[t]he VE testified that an individual with the [RFC] to understand, remember and
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carry out short, simple instructions could perform work as an industrial helper . . . and
kitchen helper.” Id. at 9-10. The DOT states these two jobs “require ability to perform at
a reasoning level of two.” Id. This is a conflict, Plaintiff asserts, because “the DOT
indicates that individuals limited to understanding, remembering and carrying out only
simple, short instructions can only perform at the GED reasoning level of one.” Id. at 12.
The court does not agree.
First, Plaintiff has not established that a conflict does, in fact, exist between the
VE’s testimony and the DOT. As Defendant points out, “several courts have held that
jobs with a reasoning level of two are consistent with an ability to perform simple,
routine, repetitive tasks.” Def.’s Br. (Doc. 16) at 13. “Most courts which have addressed
this issue have held that the requirement of Reasoning Level 2 or 3 is not inconsistent
with the ability to perform only simple tasks.” Hurtado v. Astrue, 2010 WL 1850261, at
*11 (S.D. Fla. April 14, 2010) (citing Miller v. Comm’r of Soc. Sec., 246 F. App’x 660
(11th Cir. 2007) (unpublished) (no remand where VE identified reasoning level 3 jobs for
plaintiff who could do only simple, routine and repetitive work)); see also Terry v.
Astrue, 580 F.3d 471 (7th Cir. 2009) (level 3 reasoning not inconsistent with plaintiff’s
ability to perform only simple work); Lara v. Astrue, 305 F. App’x 324 (9th Cir. 2008)
(plaintiff able to perform simple repetitive tasks capable of doing work at reasoning level
2); Renfrew v. Astrue, 496 F.3d 918 (8th Cir. 2007) (reasoning level 3 not inconsistent
with plaintiff’s inability to do complex work); Hackett v. Barnhart, 395 F.3d 1168 (10th
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Cir. 2005) (“level two reasoning appears more consistent with [p]laintiff’s RFC” of
“simple and routine work tasks”); Money v. Barhart, 91 F. App’x 210 (3d Cir. 2004)
(“Working at reasoning level 2 would not contradict the mandate that her work be simple,
routine and repetitive.”).
Further, even if an actual conflict does exist, SSR 00-4p requires only that the ALJ
resolve “apparent unresolved conflict.”

Social Security Rulings 00-4p (emphasis

added). In Leigh v. Commissioner of Social Security, the claimant argued the existence
of a conflict between the VE’s testimony and the DOT based on a dispute over the
reasoning level attached to “simple, routine, repetitive” instructions, as Plaintiff argues
here. 496 F. App’x 973, 975 (11th Cir. 2012) (unpublished). The Leigh court found no
apparent inconsistency between the VE’s opinion and the DOT because “the ALJ asked
the VE if there were any inconsistencies between his opinion and the DOT, and the VE
responded that there were not” and the claimant “did not offer any evidence controverting
the VE’s opinion, nor did she object to the opinion.” Id. In the present case, as in Leigh,
the ALJ asked the VE at the hearing, “is your testimony today consistent with its shared
occupational title?” to which the VE replied “Yes,” and Plaintiff’s counsel did not
challenge or object to the opinion. Tr. 51. Thus, as in Leigh, there was no apparent
conflict for the ALJ to resolve.
If no apparent conflict between the VE’s testimony and the DOT are raised at the
hearing, the ALJ is not required to address SSR 00-4p. Gibson v. Astrue, 2010 WL
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3655857, at *15 (N.D. Ga. 2010). “[T]he ALJ need not independently corroborate the
VE’s testimony and should be able to rely on such testimony where no apparent conflict
exists with the DOT.” Brijbag v. Astrue, 2008 WL 276038, at *2 (M.D. Fla. Jan. 31,
2008) (citing Donahue v. Barnhart, 279 F.3d 441, 446-47 (7th Cir. 2002); Martin v.
Comm’r of Soc. Sec., 2006 WL 509393, at *4-5 (6th Cir. 2006) (unpublished); Haas v.
Barnhart, 2004 WL 396982, at *5-6 (5th Cir. 2004) (unpublished); Lembke v. Barnhart,
2006 WL 3834104, at *14-15 (W.D. Wis. 2006)).
Lastly, the court finds the ALJ did not error by relying on the VE’s testimony
because, in the Eleventh Circuit, the VE’s testimony trumps any inconsistent provisions
of the DOT. Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1994) (“[W]hen the VE’s
testimony conflicts with the DOT, the VE’s testimony ‘trumps’ the DOT.”); see also
Leigh, 496 F. App’x at 975; Hurtado v. Comm’r of Soc. Sec., 425 F. App’x 793, 796
(11th Cir. 2011) (unpublished); Jones v. Comm’r of Soc. Sec., 423 F. App’x 936, 939 &
n.4 (11th Cir. 2011) (unpublished) (“Social Security Rulings are not binding on this
court. To the extent SSR 00-4p conflicts with Jones [v. Apfel], we are bound by Jones.”
(internal citations omitted)); Miller, 246 F. App’x at 662 (“Our precedent establishes that
the testimony of a [VE] ‘trumps’ an inconsistent provision of the DOT in this Circuit.”).

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VI.

CONCLUSION
The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is AFFIRMED.
separate judgment will issue.
Done this 20th day of December, 2013.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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A