Banks v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by US Magistrate Judge T Michael Putnam on 3/14/2014. (MSN)

FILED
2014 Mar-17 AM 08:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRENDA E. BANKS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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2:12-cv-4084-TMP

MEMORANDUM OPINION1
I.

Introduction
The plaintiff, Brenda E. Banks, appeals from the decision of the

Commissioner of the Social Security Administration (ACommissioner@) denying
her application for supplemental security income (ASSI@).

Ms. Banks timely

pursued and exhausted her administrative remedies, and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. '' 405(g), 1383(c)(3).

1

On April 9, 2013, the parties consented to the exercise of full dispositive jurisdiction by
the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).
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Based upon the court=s review of the record and the briefs submitted by the parties,
the court finds that the decision of the Commissioner is due to be affirmed.
Ms. Banks was 42 years old at the time of the Administrative Law Judge=s
(AALJ@) decision, and she has a high school education. (Tr. at 32-33). Her past
work experiences include employment as a day care worker. (Tr. at 32, 41, 15663).

Ms. Banks claims that she became disabled on July 1, 2007, due to

depression. (Tr. at 202). She also alleges that she has mitral valve prolapse,
asthma, and migraine headaches. (Tr. at 202).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. ''
404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is Adoing
substantial gainful activity.@ 20 C.F.R. '' 404.1520(a)(4)(i), 416.920(a)(4)(i). If
he or she is, the claimant is not disabled and the evaluation stops. Id. If he or she is
not, the Commissioner next considers the effect of all of the claimant=s physical
and

mental impairments combined.

20

C.F.R. '' 404.1520(a)(4)(ii),

416.920(a)(4)(ii). These impairments must be severe and must meet the durational
requirements before a claimant will be found to be disabled. Id. The decision
depends upon the medical evidence in the record. See Hart v. Finch, 440 F.2d
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1340, 1341 (5th Cir. 1971). If the claimant=s impairments are not severe, the
analysis stops. 20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the
analysis continues to step three, which is a determination of whether the claimant=s
impairments meet or equal the severity of an impairment listed in 20 C.F.R. pt.
404, Subpart P, Appendix 1. 20 C.F.R. '' 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If
the claimant=s impairments fall within this category, he or she will be found
disabled without further consideration. Id. If they do not, a determination of the
claimant=s residual functional capacity (ARFC@) will be made, and the analysis
proceeds to the fourth step. 20 C.F.R. '' 404.1520(e), 416.920(e). Residual
functional capacity is an assessment, based on all relevant evidence, of a claimant=s
remaining ability to do work despite her impairments. 20 C.F.R. ' 404.1545(a).
The fourth step requires a determination of whether the claimant=s
impairments prevent him or her from returning to past relevant work. 20 C.F.R. ''
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant=s RFC, as well as the
claimant=s age, education, and past work experience, in order to determine if he or
she can do other work. 20 C.F.R. '' 404.1520(a)(4)(v), 416.920(a)(4)(v). If the
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claimant can do other work, the claimant is not disabled. Id. The burden of
demonstrating that other jobs exist which the claimant can perform is on the
Commissioner; and, once that burden is met, the claimant must prove her inability
to perform those jobs in order to be found to be disabled. Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Ms. Banks
has not been under a disability within the meaning of the Social Security Act from
the date of onset through the date of his decision. (Tr. at 23). He first determined
that Ms. Banks has not engaged in substantial gainful activity since the alleged
onset of her disability. (Tr. at 25). According to the ALJ, plaintiff=s dysthymic
disorder and anxiety disorder are considered Asevere@ based on the requirements set
forth in 20 C.F.R. ' 416.920(c), but that her asthma, mitral valve prolapse and
migraines are minimal, cause no functional limitation, and are not severe enough to
be disabling. (Tr. at 25). However, he found that these impairments neither meet
nor medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. at 25). The ALJ did not find Ms. Banks=s allegations to be
credible, and he determined that she has the following residual functional capacity:
a full range of work at any exertional level, with no impairment in sitting, standing,
walking, lifting, carrying, pushing, or pulling. (Tr. at 26-27).
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He further found

that the claimant is capable of understanding, remembering, and carrying out
simple instructions over an 8-hour workday with routine breaks, capable of casual
and non-confrontational contacts with coworkers, supervisors, and the general
public, and capable of dealing with changes in the workplace introduced slowly.
(Tr. at 26-27).
Moving on to the fourth step of the analysis, the ALJ concluded that Ms.
Banks is unable to perform her past relevant work as a day-care worker. (Tr. at
33). The ALJ considered the testimony of a vocational expert, and employed 20
CFR ' 404.965 as a guideline for finding that Ms. Banks is incapable of
performing the job of day care worker Aeither as she actually did it or as it is
generally done in the national economy.@

(Tr. at 32-33).

He further found,

however, that she was able to perform work as a domestic cleaner, linen supply
worker, and shipping/receiving clerk, and that jobs exist in a significant number in
the state and nation. (Tr. at 33). The ALJ concluded his findings by stating that
Plaintiff Ahas not been under a disability, as defined in the Social Security Act,
since February 3, 2009, when she filed her application.@ (Tr. at 34).

II.

Standard of Review
This Court=s role in reviewing claims brought under the Social Security Act
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is a narrow one. The scope of its review is limited to determining (1) whether
there is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002). Substantial evidence is "more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion." Crawford v. Commissioner of Soc. Sec., 363 F3d 1155,
1158 (11th Cir. 2004), quoting Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th
Cir. 1997). The Court approaches the factual findings of the Commissioner with
deference, but applies close scrutiny to the legal conclusions. See Miles v. Chater,
84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts, weigh
evidence, or substitute its judgment for that of the Commissioner. Id. AThe
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and >the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency=s finding from being
supported by substantial evidence.=@ Parker v. Bowen, 793 F.2d 1177, 1181 (11th
Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Federal Mar. Comm=n, 383
U.S. 607, 620 (1966)).

Indeed, even if this Court finds that the evidence

preponderates against the Commissioner=s decision, the Court must affirm if the
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decision is supported by substantial evidence. Miles, 84 F.3d at 1400. No decision
is automatic, however, for Adespite this deferential standard [for review of claims]
it is imperative that the Court scrutinize the record in its entirety to determine the
reasonableness of the decision reached.@ Bridges v. Bowen, 815 F.2d 622, 624 (11th
Cir. 1987). Moreover, failure to apply the correct legal standards is grounds for
reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

III.

Discussion
Ms. Banks alleges that the ALJ’s decision should be reversed and remanded

because the ALJ’s decision is not supported by substantial evidence. (Doc. 11, p.
2). Specifically, she argues that the ALJ failed to properly credit the opinion of the
“treating” psychologist appointed by the ALJ, Dr. Sally Gordon (doc. 11, pp. 7-9),
and failed to properly assess the severity of claimant’s migraine headaches, asthma,
and mitral valve prolapse. (Doc. 11, pp. 9-13).
The Court must also be aware of the fact that opinions such as whether a
claimant is disabled, the claimant’s residual functional capacity, and the application
of vocational factors Aare not medical opinions, . . . but are, instead, opinions on
issues reserved to the Commissioner because they are administrative findings that
are dispositive of a case; i.e., that would direct the determination or decision of
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disability.@ 20 C.F.R. '' 404.1527(e), 416.927(d). Whether the Plaintiff meets the
listing and is qualified for Social Security disability benefits is a question reserved
for the ALJ, and the court Amay not decide facts anew, reweigh the evidence, or
substitute [its] judgment for that of the Commissioner.@ Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005).
A. Severity of her Mental Conditions
At the request of the Social Security Administration, Ms. Banks underwent a
consultative psychological examination performed by Dr. Gordon. She reported to
Dr. Gordon that she had migraine headaches and depression. She reported that the
migraines occur "every two to three months and last for three days" and that her
depression began in 1995 because her "parents would fight all the time."

(Tr. at

334). The claimant also described to Dr. Gordon anxiety, panic attacks, and
intermittent agoraphobia, but denied psychotic thoughts, manic symptoms, or
suicidal ideation. (Tr. at 334). Dr. Gordon diagnosed the claimant with dysthymic
disorder, anxiety disorder, panic disorder, and insomnia. 2 She further noted that
the claimant is "capable of getting along with others, although at times she is likely
to be withdrawn and to avoid social interactions" and that she is "likely to be easily
2

Dr. Gordon noted AR/O post-traumatic stress disorder,@ indicating that symptoms of
APTSD@ may have been present, and could not be ruled out, but the doctor had insufficient
information to defend a diagnosis for that disorder.
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frustrated and have difficulty responding adaptively to mild work pressures on a
consistent basis." The claimant received a "50" as the Global Assessment of
Functioning (AGAF@) in Dr. Gordon's report. (Tr. at 336). The ALJ questioned Dr.
Gordon about that score, and was told that the score was subjective, made without
a standardized protocol, and was only a Asnapshot of an individual at a particular
time.@ (Tr. at 90-91). Dr. Gordon further testified that the score must be viewed in
context with Athe whole of the records.@ (Tr. at 91).
The Eleventh Circuit Court of Appeals has noted that the GAF scale is of
very limited application to a disability finding in that the score has no Adirect
correlation to the severity requirements of the mental disorders listing.@ Wind v.
Barnhart, 133 Fed. Appx. 684, 692 (2005)(in which the claimant=s score was 5055). See also, Oates v. Astrue, 2009 WL 1154133 *6-7 (S.D. Ala. April 27,
2009)(in which the claimant was given one score as low as 25).

Another court

within this district has examined the importance to be placed on a GAF of 50:

The Global Assessment of Functioning (GAF) Scale is used to
report an individual's overall level of functioning. Diagnostic and
Statistical Manual of Mental Disorders 30 (4th Edition) (ADSMBIV@).
A GAF of 41B50 indicates: A[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or any
serious impairment in social, occupational, or school functioning (e.g.,
no friends, unable to keep a job).@ DSMBIV at 32. Several courts of
appeal have, in unpublished or nonprecedential opinions, considered
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the impact of a claimant's GAF score of 50 or below. The courts
generally find that a GAF score of 50 or below is not in and of itself
determinative of disability. See Hillman v.Barnhart, 48 Fed.Appx. 26,
30, n.1 (3d Cir. 2002)(not precedential)(noting that a GAF of 50
would indicate a claimant could perform some substantial gainful
activity); Rutter v. Comm'r of Soc. Sec., 91 F.3d 144 (Table), 1996 WL
397424 at *2 (6th Cir.1996)(unpublished opinion)(exclusive reliance
on GAF score not appropriate); Roemmick v. Shalala, 59 F.3d 176
(Table), 1995 WL 299894 at *2, n. 1 (9th Cir. 1995)(noting that an
inability to work is only one example of the level of adaptation
meriting a GAF of 40); Seymore v. Apfel, 131 F.3d 152 (Table), 1997
WL 755386 at *2 (10th Cir. 1997)(AContrary to claimant's contention,
a GAF rating of 45 may indicate problems that do not necessarily
relate to the ability to hold a job; thus standing alone without further
narrative explanation, the rating of 45 does not evidence an
impairment seriously interfering with claimant's ability to work.@);
Stalvey v. Apfel, 242 F.3d 390 (Table), 2001 WL 50747 at *2 (10th
Cir.1999)(AThe GAF is not an absolute determiner of ability to
work.@). But cf. Lloyd v. Barnhart, 47 Fed. Appx. 135, 135, n.2 (3rd
Cir. 2002)(not precedential) (noting that a vocational expert at the
administrative hearing testified that a GAF of 50 or lower would
indicate claimant would not be able to keep a job).

Jones v. Astrue, 494 F. Supp. 2d 1284, 1289 (N.D. Ala. 2007).
In this case, the ALJ noted that Dr. Gordon saw Ms. Banks only once, and
was not a treating physician. (Tr. at 28). 3 Dr. Gordon relied on records that were
not identified, which she had received from the Alabama Disability Determination
Service, and on the claimant=s own statements. (Tr. at 30). The ALJ accorded Dr.
3

Plaintiff=s reference to Gordon as her Atreating psychologist@ (doc. 11, p. 7) is wholly
unsupported in the record.
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Gordon=s opinion Asome weight,@ but found that her descriptions of Ms. Banks=s
limitations were not sufficiently specific. (Tr. at 31). The ALJ found that Dr.
Gordon=s opinion was consistent with, but made more specific by, the opinion of
Dr. Samuel D. Williams, which also was given Asome weight.@ (Tr. at 31). The
ALJ also placed Asome weight@ on the opinions of the treating doctor, Joshua
Miller, who had been the plaintiff=s primary care provider for several years, and
plaintiff does not assert that the ALJ gave improper weight to Dr. Miller’s opinion
or any other medical evidence.
After considering the entire record, the ALJ determined that Plaintiff=s
medically determined mental and physical impairments could reasonably be
expected to cause the alleged symptoms, but found her statements regarding the
extreme nature of the symptoms were inconsistent with the medical records, which
showed that her conditions have generally improved with treatment and do not
Ashow a longitudinal picture of sustained, extreme symptoms, as alleged.@ (Tr. at
28). The ALJ properly considered the evidence that Plaintiff had been treated for
depression and anxiety, had complained of insomnia and suicidal ideations, and
had migraine headaches and asthma. The ALJ examined all of the record evidence,
along with the consultative examination of Dr. Gordon, and provided a detailed
analysis and reasoning for the weight accorded to each. The Plaintiff has not
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pointed to any objective treatment records which indicate that the RFC
determination was not correct.

The ALJ simply found that, based upon all the

evidence, the conditions are not so debilitating as to render her unable to perform
certain work.
Plaintiff asserts that the record was insufficient because the ALJ did not
order a clarification from Dr. Gordon. The duty to develop that record, however, is
not required where the record contains sufficient evidence from which the ALJ
may make an informed decision. Ingram v. Commissioner of Soc. Sec., 496 F.3d
1253, 1269 (11th Cir. 2007). The plaintiff cites to 20 C.F.R. ' 416.919p to support
her contention that the ALJ should have sought clarification; however, the duty to
seek Aan explanation@ is triggered only where the report (1) fails to provides an
Aadequate basis for decisionmaking,@ (2) is internally inconsistent; (3) fails to
mention Aan important or relevant complaint;@ (4) is not adequate Aas compared to
standards set out in the course of a medical education,” or (5) is unsigned. 20
C.F.R. ' 416.919p (a)(1)-(5). Dr. Gordon=s report is not deficient in any of these
respects, and the ALJ=s failure to seek Aclarification@ is, therefore, no basis for the
remand or reversal of his decision.
B. Severity of her medical conditions
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The plaintiff further argues that the ALJ failed to properly find that her
migraine headaches, asthma, and mitral valve prolapse were sufficiently severe.
The medical evidence provided, and the ALJ=s discussion, indicate that the ALJ
properly evaluated plaintiff=s medical conditions, as well as her mental conditions.
He relied upon records from Dr. Joshua Miller to support his conclusion that her
asthma is Amild@ and that pulmonary function tests showed only Aminimal disease.@
(Tr. at 25). He further noted that her medical records indicated that the mitral valve
prolapse had been asymptomatic and that her migraines, which she testified
occurred once a month, were not of Aa frequency and severity to be disabling.@ (Tr.
at 25). The ALJ further relied upon plaintiff=s own testimony that she managed the
household, which included her two children, managed her finances, did laundry,
shopped, drove, read, watched TV, attended church regularly, and took public
transportation. Accordingly, the ALJ=s determination is supported by substantial
evidence B primarily from the plaintiff=s treating physician. The decision was both
comprehensive and consistent with the applicable SSA rulings. The objective
medical and other evidence supports the ALJ=s conclusion that plaintiff=s
conditions did not cause disabling limitations and instead shows that she could
perform some work.
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IV.

Conclusion

Upon review of the administrative record, and considering all of Ms. Banks's
arguments, the Court finds the Commissioner=s decision is supported by substantial
evidence and is in accord with the applicable law. A separate order will be entered.
DATED the 14th day of March, 2014.

_
T. MICHAEL PUTNAM
U.S. MAGISTRATE JUDGE

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