Marshall v. Astrue (CONSENT)

Filing 18

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

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
LULA F. MARSHALL,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 3:11cv771-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Lula F. Marshall, applied for disability insurance benefits under Title II of

the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq. Her 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 from July 21, 2009 through the date of the decision.
Tr. 31. The Appeals Council rejected Plaintiff’s request for review of the ALJ’s decision.
Tr. 1-5. 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. § 405(g). Pursuant to
28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry
1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L.
No. 103-296, 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.

of a final judgment by the undersigned United States Magistrate Judge. Pl.’s Consent to
Jurisdiction (Doc. 10); Def.’s Consent to Jurisdiction (Doc. 9). 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
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).2
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.”
2

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.
2

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
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 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 Guidelines4 (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

3

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).

4

See 20 C.F.R. pt. 404 subpt. P, app. 2.
3

individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyrequired 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 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).

4

III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty-seven years old at the time of the hearing before the ALJ. Tr. 134;

207. Plaintiff completed high school and two years of college. Tr. 253. Plaintiff’s past
relevant work experience was as: “military police”; “cashier”; “security guard”; and “salad
bar attendant.” Tr. 72-73. Following the administrative hearing, and employing the five-step
process, the ALJ found Plaintiff had “not engaged in substantial gainful activity since July
21, 2009, the alleged onset date.” (Step 1) Tr. 18. At Step 2, the ALJ found that Plaintiff
suffers from the following severe impairments: “degenerative disc disease of lumbar spine;
osteoarthritis of right knee; obesity; right wrist tendonitis; and post traumatic stress disorder.”
Id. 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 light work with a sit/stand
option. She should have casual contact with the public and co-workers.
Supervision should be non-confrontational and supportive.
Tr. 19. At Step 4, and after consulting with a VE, the ALJ found that Plaintiff “is capable
of performing past relevant work as a security guard and cashier. This work does not require
the performance of work-related activities precluded by [Plaintiff’s] residual functional
capacity.” Tr. 30. Accordingly, the ALJ determined that Plaintiff “has not been under a
disability . . . from July 21, 2009 through the date of th[e] decision.” Tr. 31.

5

IV.

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

decision: 1) whether “the [ALJ] err[ed] at Step 4 of the sequential evaluation when she
found [Plaintiff] could only have ‘casual contact’ with others and the Dictionary of
Occupational Titiles indicates both security guard and cash[i]er require significant people
contact”; and 2) whether “the ALJ err[ed] in her [RFC] finding.” Pl.’s Br. (Doc. 14) at 1.
The court will address each of Plaintiff’s arguments below.
V.

DISCUSSION
A.

Whether the ALJ erred at Step 4 in determining that Plaintiff can return to
her past relevant work.

Plaintiff argues that the ALJ erred at Step 4 because “she found [Plaintiff] could only
have ‘casual contact’ with others and the Dictionary of Occupational Titles indicates both
security guard and cash[i]er require significant people contact.” Pl.’s Br. (Doc. 14) at 1.
Thus, Plaintiff argues, the VE’s testimony “is not reliable because it is inconsistent with the
DOT,” and “contrary to [SSR] 00-4, the [ALJ] failed to reconcile the discrepancy.” Pl.’s Br.
(Doc. 14) at 12.
Defendant contends that “[w]hile [the DOT], . . . describes both jobs as requiring
significant speaking-signaling . . . this is not inconsistent with the casual nature of the
contacts the ALJ contemplated”; that “[e]ven were the Court to decide that Plaintiff’s
residual functional capacity did not allow her to perform her past work as a security guard
due to the potential in some such jobs for confrontational situations with the public or co6

workers, she clearly could still perform the sort of public contact required of a cashier”; and
that “the ALJ’s hypothetical question to the vocational expert captured the essentials of the
ALJ’s assessment of Plaintiff’s residual functional capacity. Thus, the vocational expert’s
testimony constituted substantial evidence in support of the ALJ’s finding.” Def.’s Br. (Doc.
16) at 15.
The court finds that Plaintiff’s argument is due to fail. Even assuming that the VE’s
testimony is inconsistent with the DOT and that the ALJ failed to resolve this discrepancy,
this would not be a reversible error by the ALJ. While it is true that SSR 00-4p requires an
ALJ to “elicit a reasonable explanation” for any “apparent unresolved conflict” between the
testimony of the VE and the DOT,5 the United States Court of Appeals for the Eleventh
Circuit has held that this agency ruling is not binding on the court. See Miller v. Comm’r of
Soc. Sec., 246 F. App’x 660, 662 (11th Cir. 2007). Relying on precedent, the Miller court
held that because social security rulings do not bind the courts, even where an inconsistency
exists between the testimony of a VE and the DOT, an ALJ is entitled to rely upon the
testimony of the VE without resolving the conflict. Miller, 246 F. App’x at 662 (citing Jones
v. Apfel, 190 F.3d 1224, 1230-31 (11th Cir. 1999) (“when the VE’s testimony conflicts with
the DOT, the VE’s testimony ‘trumps’ the DOT.”)).6 See also Akins v. Comm’r of Soc. Sec.,
5

Social Security Ruling 00-4p states that “[w]hen a VE . . . provides evidence about the
requirements of a job . . . , the [ALJ] has an affirmative responsibility to ask about any possible
conflict between that VE . . . evidence and information provided in the DOT.” SSR 00-4p.
6

In Miller, the United States Court of Appeals for the Eleventh Circuit, explicitly held that
Jones remains binding law in the Eleventh Circuit because Social Security Rulings do not bind
courts and do not have the force of law. 246 F. App’x at 662.
7

2009 WL 2913538 *5 (M.D. Fla. Sept. 10, 2009) (holding that the rule in the Eleventh
Circuit is the VE still trumps the DOT); Sollars-D’Annunzio v. Astrue, 2009 WL 302170, at
*10 (M.D. Fla. Feb. 6, 2009) (“[U]nder Jones an ALJ may rely upon the testimony of a VE
without first resolving any conflict with the DOT.”); Ortiz v. Comm’r of Soc. Sec., 2012 WL
603223, at *8 (M.D. Fla. Feb. 24, 2012) (finding no error at Step 4 when ALJ “fail[ed] to ask
the VE whether there was any conflict in testimony regarding the requirements of Claimant’s
past-relevant work and the DOT.” The court found that “not only did the Claimant fail to
raise any issue of conflict at the hearing or suggest [] that a conflict actually exists, a review
of the hearing transcript clearly reveals that the VE testified as to Claimant’s past-relevant
work as classified by the DOT” and “[t]hus, no actual conflict between the DOT and the
VE’s testimony [was] apparent.”). Accordingly, given this precedent, the court finds that
Plaintiff’s argument lacks merit.
B.

Whether the ALJ properly determined Plaintiff’s RFC.

Plaintiff presents two arguments in raising a challenge to the ALJ’s RFC
determination. First, Plaintiff argues that the ALJ’s RFC determination is erroneous because
“the [ALJ] expressly relied on the State agency’s mental [RFC] but the State agency found
[Plaintiff] was more limited and these limitations would prevent [Plaintiff] from performing
work as a cashier or security guard.” Pl.’s Br. (Doc. 14) at 1. Second, Plaintiff argues that
the ALJ erred in determining Plaintiff’s RFC because “[t]he treating psychiatrist’s opinion
that [Plaintiff ] was not able to perform competitive work deserved greater weight.” Id.

8

1.

Whether the ALJ properly considered the opinions of state agency
specialists.

Plaintiff’s first argument contends that the ALJ committed error because “[w]hile the
[ALJ] said she relied on Dr. Ravello’s mental restrictions of February 20, 2010,” the ALJ
“overlooked” the limitations listed by Dr. Ravello. Pl.’s Br. (Doc. 14) at 13.7 According to
Plaintiff, “[h]ad these specific limitations been appropriately considered, [Plaintiff]’s past
relevant work as a cashier and security guard would have been ruled out.” Id.
A review of the record suggests that Plaintiff misreads the ALJ’s opinion. Dr.
Ravello, Ph.D., is a state agency reviewing psychologist. Addressing Dr. Ravello’s opinion,
the ALJ specifically states:
Also included in the file is the opinion of Dr. Ravello . . . finding the claimant
was capable of work activity but she would be limited to casual contact with
public and coworkers. This opinion has been considered, in accordance with
[SSR] 96-6p and given some weight. While Dr. Ravello did not have the
benefit of the most recent medical sources statements, current medical records
or the hearing testimony; that report essentially support[s] the conclusions
stated herein.
Tr. 30 (emphasis added). There is no indication that the ALJ was using Dr. Ravello’s
assessment as more than another piece of the puzzle–there is certainly no indication the ALJ
considered this piece of evidence as determinative of the entire RFC analysis. In fact, the
ALJ clearly points out some of the drawbacks to Dr. Ravello’s medical assessment, noting
7

Plaintiff cites to the following limitations listed by Dr. Ravello:
1. Should be able to concentrate and attend to simple tasks for 2 hours
2. Work[s] best in own work station apart from others to limit distractions
3. Avoid quick decision making, rapid changes and multiple demands
Pl.’s Br. (Doc. 14) at 13; Tr. 602.
9

that Dr. Ravello did not have access to the most recent medical statements. The court also
notes that Dr. Ravello’s assessment does not indicate that any of Plaintiff’s functions were
“markedly limited.” Tr. 600-603. Moreover, a review of the ALJ’s decision demonstrates
that the ALJ specifically incorporated Dr. Ravello’s general findings in her mental residual
functional capacity assessment that Plaintiff “would be limited to casual contact with public
and coworkers.” Tr. 30.8
To the extent Plaintiff argues the ALJ should have accorded Dr. Ravello’s assessment
controlling weight, Dr. Ravello was not a treating physician and, thus, her interactions with
Plaintiff necessarily render her, at best, an examining physician. The ALJ has no obligation
to give controlling or great weight to the opinion of an examining physician. See, e.g.,
Russell v. Astrue, 331 F. App’x 678, 681-82 (11th Cir. 2009) (holding that the ALJ had good
cause for affording little weight to an examiner’s opinion where he appropriately found the
claimant’s other medical records failed to support the opinion and that the doctor’s own
examination contradicted his opinion).
Plaintiff also points to Barry Slatton’s opinion that Plaintiff is “unable to perform past
work due to her mental restrictions.” Pl.’s Br. (Doc. 14) at 14; Tr. 267-70 and 612. The ALJ
appropriately considered this opinion, stating “the undersigned gives no weight to this
8

Plaintiff also argues, “[t]he administrative law judge found Ms. Marshall could perform semiskilled work, ‘consistent with an SVP of 3 or 4.’ Tr. 74. This is contrary to Dr. Ravello’s finding
that Ms. Marshall is limited to and should be able to concentrate and attend to simple tasks for
two hours, i.e., ‘unskilled’ work according to Social Security’s Regulations.” Pl.’s Br. (Doc. 14)
at 13 (emphasis in original). However, the VE testified that Plaintiff’s past relevant work as a
cashier was “light work” and “unskilled.” Tr. 73. Thus, the ALJ’s determination that Plaintiff
could perform work as a cashier would be consistent with Dr. Ravello’s limitations.
10

opinion since Single Decision Makers are not acceptable medical sources as defined at 20
C.F.R. 404.1513(a).” Tr. 30. Indeed, an RFC assessment completed by a disability specialist
is entitled to no weight. See Bolton v. Astrue, 2008 WL 2038513, at *4 (M.D. Fla. May 12,
2008) (“An SDM is not a medical professional of any stripe, and a finding from such an
individual is entitled to no weight as a medical opinion, nor to consideration as evidence
from other non-medical sources.”) (internal citations and quotations omitted); Casey v.
Astrue, 2008 WL 2509030, at *4 n.3 (S.D. Ala June 19, 2008) (“[A]n RFC assessment
completed by a disability specialist is entitled to no weight.”).
2.

Whether the ALJ erred in not assigning the treating physician’s
opinion greater weight.

Next, Plaintiff argues that “the treating psychiatrist’s opinion that [Plaintiff] was not
able to perform competitive work deserved greater weight.” Pl.’s Br. (Doc. 14) at 1.
The ALJ must accord substantial weight to the opinion of a treating physician unless
there is good cause to do otherwise. Phillips, 357 F.3d at 1241; Lewis v. Callahan, 125 F.3d
1436, 1439-41 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991);
20 C.F.R. § 404.1527(d). The Court of Appeals for the Eleventh Circuit has held:
“[G]ood cause” exists when the: (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3)
treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records. When electing to disregard the opinion of a treating
physician, the ALJ must clearly articulate its reasons.
Phillips, 357 F.3d at 1240-41 (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997) (internal citations omitted)).
11

Here, the ALJ articulated specific reasons for not giving Dr. Gibson’s opinion greater
weight, stating:
In this case, the undersigned concludes that Dr. Gibson’s mental capacities
assessment contained in Exhibit 13F is not entitled to controlling weight or
even great weight because it is not supported by the actual VA treating notes
and is inconsistent with the substantial evidence of record. . . . Despite her
reported symptoms, the claimant’s mental status remained intact and she was
functioning in an independent manner, even in a manner that was inconsistent
with some [of] her reported symptoms indicating to the undersigned that some
symptoms were not debilitating as alleged. In fact, as discussed above, the
claimant was the main caretaker of her mother and the household before her
mother’s passing. After the passing of her mother, the claimant has remained
independent in all areas and spent more than four months actively engaged in
the building of her new house. That level of independence and required
mental activity was not fully reported to Dr. Gibson and certainly is
inconsistent with any allegation of disabling mental symptoms.
Tr. 30. The ALJ’s opinion clearly indicates that she did not give Dr. Gibson’s opinion
controlling weight because it was contradicted by other evidence on the record, pointing, in
part, to Plaintiff’s own testimony of her daily activities and other treatment notes. The
United States Court of Appeals for the Eleventh Circuit has held that an ALJ does not need
to give a treating physician’s opinion considerable weight if evidence of the claimant’s daily
activities contradicts the physician’s opinion. See Phillips, 357 F.3d at 1241; see also Mason
v. Comm’r of Soc. Sec., 2011 WL 2419929, at *2 (11th Cir. Jun.16, 2011) (“a treating
physician’s opinion is not entitled to considerable weight if it conflicts with the claimant’s
own testimony regarding her daily activities.”).
A review of Dr. Gibson’s assessments also reveals that his notes mostly record
Plaintiff’s own report of symptoms. Moreover, while Dr. Gibson consistently assigned
12

Plaintiff GAF scores below 50, Dr. Gibson did not offer any explanation in his report
regarding the GAF score.9 The Court of Appeals for the Eleventh Circuit has noted that, “the
Commissioner has declined to endorse the GAF scale for ‘use in the Social Security and SSI
disability programs,’ and has indicated that GAF scores have no ‘direct correlation to the
severity requirements of the mental disorders listings.’” Wind v. Barnhart, 133 F. App’x
684, 692 n.5 (11th Cir. 2005) (unpublished) (quoting Revised Medical Criteria for Evaluating
Mental Disorders and Traumatic Brain Injury, 65 FR 50746-01, 2000 WL 1173632 (Aug. 21,
2000)).
Accordingly, for the reasons described above, the court finds the ALJ articulated
“good cause” for not assigning great weight to Dr. Gibson’s opinion, and the ALJ’s RFC
assessment is supported by substantial evidence. Thus, Plaintiff’s argument is due to fail.
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. A separate
judgment will issue.

9

“The GAF score is necessarily ‘a subjective determination that represents the clinician’s
judgment of the individual’s overall level of functioning.’” Wilson v. Astrue, 653 F. Supp. 2d
1282, 1293 (M.D. Fla. 2009) (citing DeBoard v. Comm’r of Soc. Sec., 211 F. App’x 411, 415-16
(6th Cir. 2006) (unpublished)). See also DSM–IV–TR at 32. However, a GAF score “does not
itself necessarily reveal a particular type of limitation and ‘is not an assessment of a claimant’s
ability to work.’” See, e.g., Ward v. Astrue, 2008 WL 1994978, at *3 (M.D. Fla. 2008) (citation
omitted).
13

Done this 20th day of December, 2012.

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

14