Gordon v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 7/25/14. (SAC )
2014 Jul-25 PM 03:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social
) Case No.
Lynn Gordon, plaintiff, brings this action seeking judicial
review of a final adverse decision of the Commissioner of the
disability insurance benefits and Supplemental Security Income.
Gordon timely pursued and exhausted her administrative remedies.
Accordingly, this case is now ripe for judicial review under 42
U.S.C. § 405(g).
Based on 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.
Gordon filed applications for disability insurance benefits
and Supplemental Security Income (SSI) on April 9, 2008, and
alleges she became disabled on April 2, 2007.
48 years old at the time of the ALJ’s decision.
She has a
high school education, and past relevant work as a fast food
worker, retail assistant manager, office clerk/clerical worker,
department manager, floor manager, accounting clerk, sewing machine
operator, knitting machine operator, and cashier/checker.
Gordon testified she is unable to work primarily due to depression
and panic attacks rather than physical problems. R. 140, 142. She
also testified that she had pain caused by shingles and side
effects from her medications.
She testified that she
had neck and shoulder pain that affected her ability to lift with
her right arm.
The medical treatment records show Gordon received treatment
for her mental impairments at the CED Mental Health center from
March 2009 through August 2009.
R. 315-34, 340-41.
medications to treat her condition.
She also received treatment
for her joint and neck pain at Quality of Life Health Services on
May 27 and July 8, 2008.
She was prescribed pain
medications, which she reported improved her pain.
After the ALJ’s decision, Gordon submitted additional medical
consultative mental examination dated January 12, 2010, and a
consultative physical examination dated March 18, 2010. R. 363-69,
The evidence submitted to the Appeals council also
contained treatment records from the CED Mental Health Center, and
from Quality of Life Health Services.
R. 371-85, 451-56.
detailed description of this evidence is provided, to the extent it
is legally significant, in the sections that follow.
Standard of Review
The sole function of this court is to determine whether the
decision of the Commissioner is supported by substantial evidence
and whether proper legal standards were applied.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
To that end, this
court “must scrutinize the record as a whole to determine if the
Substantial evidence is
“such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.”
This court may not decide
the facts anew, reweigh the evidence, or substitute its judgment
for that of the Commissioner.
Even if the court finds that
the evidence preponderates against the Commissioner’s decision, the
court must affirm if the decision is supported by substantial
validity attaches to the [Commissioner’s] conclusions of law,
including determination of the proper standards to be applied in
reviewing claims.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th
Cir. 1982) (quoting Smith v. Schweiker, 646 F.2d , 1075, 1076 (5th
Cir. Unit A Jun.1981)).
Therefore, this court reviews de novo the
Commissioner’s conclusions of law.
Ingram v. Comm’r of Soc. Sec.,
496 F.3d 1253, 1260 (11th Cir. 2007).
The Commissioner’s “failure
to apply the correct law or to provide the reviewing court with
sufficient reasoning for determining that the proper legal analysis
has been conducted mandates reversal.”
Cornelius v. Sullivan, 936
F.2d 1143, 1145-46 (11th Cir. 1991).
Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show that
he 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 twelve
months . . . .”
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
“physical or mental impairment” is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are
42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations outline a five-step process that
the Commissioner uses to determine whether a claimant is disabled.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
Commissioner must determine in sequence:
whether the claimant is currently
substantial gainful activity;
whether the claimant has a severe impairment or
combination of impairments;
whether the claimant’s impairment meets or equals
the severity of an impairment in the Listing of
whether the claimant can perform any of his or her
past work; and
whether there are significant numbers of jobs in
the national economy that the claimant can perform.
Winschel v. Comm’r of Soc. Sec, 631 F.3d 1176, 1178 (11th
2011). The evaluation process continues until the Commissioner can
substantial gainful activity will be found not disabled at step
20 C.F.R. §§ 404.1520 (a)(i), 416.920(a)(4)(i).
who does not have a severe impairment will be found not disabled at
20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
claimant with an impairment that meets or equals one in the Listing
of Impairments will be found disabled at step three.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
Prior to considering steps four and five, the Commissioner
must assess the claimant’s residual functional capacity (RFC),
which will be used to determine the claimant’s ability to work. 20
The Listing of Impairments, (“Listings”) found at 20
C.F.R. Part 404, Subpart P, Appendix 1, are used to make
determinations of disability based upon the presence of
impairments that are considered severe enough to prevent a person
from doing any gainful activity. 20 C.F.R. § 404.1525.
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant who can
perform past relevant work will be found not disabled at step four.
20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
At step five
the burden shifts to the Commissioner to show other work the
claimant can do.
Foot v. Chater, 67 F.3d 1553, 1559
To satisfy this burden the Commissioner must produce
evidence of work in the national economy that the claimant can do
based on the claimant’s RFC, age, education, and work experience.
20 C.F.R. §§ 404.1512(f), 416.912(f).
A claimant who can do other
§§ 404.1520(a)(4)(v), 416.920 (a)(4)(v).
other work will be found disabled.
A claimant who cannot do
In the present case, the Administrative Law Judge (ALJ)
determined Gordon was not engaged in substantial gainful activity,
and found that her cervical disc disease, depressive disorder,
panic disorder, and trichotillomania2 were severe impairments.
He concluded Gordon did not suffer from a listed impairment.
The ALJ found Gordon had the residual functional capacity
(RFC) to perform “medium work as defined in 20 CFR 404.1567(c) and
416.967(c),” except she was to avoid climbing ladders, ropes or
She was also limited to frequently lifting
Trichotillomania is the “compulsive pulling out of one’s
hair.” Dorland’s Illustrated Medical Dictionary 1743 (28th
overhead, and was to avoid all work place hazards.
found Gordon was able to “understand, remember, and carryout simple
instructions over an eight-hour work day; and concentrate for two
hours at a time.”
He also found she was “capable of casual
contact with co-workers and supervisors; and can handle slow
gradual changes in a work setting.”
With this RFC, the ALJ
found Gordon unable to perform her past relevant work.
When a claimant is not able to perform the full range of work
at a particular exertional level, the Commissioner may not rely
exclusively on the Medical-Vocational Guidelines (“the grids”) to
establish the presence of other jobs at step five.3
Foote, 67 F.3d
The presence of a non-exertional impairment (such as
pain, fatigue, or mental illness) also prevents exclusive reliance
on the grids.
Id. at 1559.
In such cases “the [Commissioner] must
seek expert vocational testimony.”
Based on Gordon’s RFC and
the testimony of a vocational expert (VE), the ALJ found Gordon
could perform other work in the national economy.
R. 43, 87-89.
Therefore, he found she was not disabled at step five of the
sequential evaluation framework.
The Medical-Vocational Guidelines, found at 20 C.F.R.
Part 404, Subpart P, Appendix 2, are used to make determinations
of disability based upon vocational factors and the claimant’s
residual functional capacity when the claimant is unable to
perform his vocationally relevant past work. 20 C.F.R. Part 404,
Subpart P, Appendix 2, § 200.00(a). Such determinations,
however, are only conclusive when all of the criteria of a
particular rule are met. 20 C.F.R. Part 404, Subpart P, Appendix
2, § 200.00(a).
Gordon challenges the ALJ’s decision on five separate grounds:
1) whether the ALJ’s RFC finding was supported by substantial
standards; 2) whether the ALJ’s hypothetical question to the
vocational expert should have been based on a formal RFC assessment
by either an examining or non-examining physician; 3) whether the
Appeals Council failed to consider the new evidence submitted by
Gordon; 4) whether the ALJ’s decision that Gordon was not disabled
under the Listings was based on substantial evidence when the
evidence submitted to the Appeals Council was considered; and 5)
whether an the evaluation by Dr. Prince submitted to the Appeals
Substantial Evidence and Correct Standards
Gordon first argues that the ALJ’s RFC finding “is simply
conclusory and does not contain any rationale or reference to the
supporting evidence, as required by SSR 96-8p.”
Pl.’s Br. 16.
Gordon sets forth several requirements imposed by Social Security
Ruling (SSR) 96-8p, which she presumably believes the ALJ did not
comply with in assessing her RFC.
The SSR provides that “the RFC assessment must include a
narrative discussion describing how the evidence supports each
SSR 96-8p at *7.
It also provides that the ALJ
must consider the claimant’s symptoms and address any medical
source opinions in the record.
A review of the ALJ’s decision
shows that it does contain such a narrative discussion.
The ALJ’s narrative explained how the ALJ evaluated Gordon’s
symptom-related functional limitations, and why he found her not
R. 40-41. He explained that Gordon’s alleged
symptoms “are not fully supported by the medical evidence.” R. 41.
To support this finding, he observed that Dr. Yoyen Lau, a treating
physician, “consistently noted that the claimant’s neck was supple
with no adenopathy or masses.”
He also noted that Dr.
Stehr reported that during his examination Gordon “was comfortable
and able to get on and off the exam table without any notable
difficulty,” and “had no pain behaviors.”
He observed that
although Dr. Stehr found Gordon “had tender points in her cervical,
thoracic, and lumbar spine, he could not appreciate any increased
tone or spasms, and she had no effusion or crepitus of her
The ALJ further observed that the treatment
records from Quality of Life Health Services “noted that [Gordon’s]
pain was relieved by prescribed medication.”
treatment records from CED Mental Health Center showed Gordon “has
consistently received a global assessment of functioning (GAF)
rating from 60 to 62, which has steadily been increasing.”
He observed that these scores represent either moderate or mild
The ALJ also extensively discussed the mental
health treatment records in considering whether Gordon met a
difficulties and limitation as can be seen within the medical
evidence . . . the impact of these limitations, which can be
reasonably attributed to the claimant’s impairments, does not reach
the disabling level.”
To support this conclusion, he
discussed Gordon’s activities of daily living, and observed that
she “functions independently, . . . performs some of the household
chores, and provides for her own personal needs.”
found that in the area of social functioning, Gordon had “a fiancé
that she interacts with on a daily basis, and lives with her mother
with whom she also interacts with on a daily basis.”
ALJ stated that he had “considered all the reasonable limitations
that the claimant has in determining her residual functional
The ALJ discussed the medical source opinions in the record,
and accorded significant weight to the opinions of the state agency
consultants, finding them “consistent with the treating source
considered the opinions from Gordon’s
treating sources, and noted “that no treating source opinion
inconsistent with disability.”
Gordon argues the ALJ failed to follow SSR 96-8p in finding
that the claimant has minor physical limitations.
Pl.’s Br. 17.
However, the portion of SSR 96-8p relied upon by Gordon concerns
situations where “there is no allegation of a physical or mental
limitation or restriction of a specific functional capacity, and no
information in the case record that there is such a limitation or
In the present case, the ALJ found
Gordon had both physical and mental limitations, and explained the
reasons for the work-related restrictions he assessed.
Gordon also points out that “SSR 96-8p requires that RFC
assessments consider an individual’ss maximum remaining ability to
do sustained work activities in an ordinary work setting on a
regular and continuing basis.”
Pl.’s Br. 17.
However, the ALJ
recognized this requirement in his decision:
residual functional capacity is her ability to do physical and
mental work activities on a sustained basis despite limitations
from her impairments.”
The ALJ also specifically cited SSR
96-8p in his discussion of the standards governing his assessment
of Gordon’s RFC.
There is nothing in the ALJ’s decision
indicating he assessed Gordon’s RFC without considering her ability
to do physical and mental work activities on a sustained basis.
In short, the ALJ properly followed SSR 96-8p in assessing
Gordon’s RFC. His decision contains an extensive discussion of the
evidence, and why it supported his RFC finding.
The ALJ’s RFC
finding was reasonable and based on substantial evidence.
2. Foundation Requirements for ALJ Hypothetical Question
Gordon next argues that the ALJ’s hypothetical question to the
vocational expert must be based on a formal RFC assessment by
either an examining or non-examining physician.
Pl.’s Br. 17.
fact, there is a formal mental RFC assessment in the record from
Dr. Leonard, a State agency reviewing medical consultant, and the
ALJ specifically afforded it “significant weight,” in assessing
Gordon’s RFC. R. 290-93, 42. Moreover, neither the Commissioner’s
regulations nor the law of this circuit require that an RFC be
based upon a medical source statement from a doctor.
The regulations provide that opinions on issues reserved to
claimant’s RFC, are
Opinions on some issues, such as the examples that
follow, are 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 disability.
One of the specifically excluded examples is a
Although we consider opinions from medical sources on
issues such as . . . your residual functional capacity .
. . the final responsibility for deciding these issues is
reserved to the Commissioner.
Therefore, under the regulations, a claimant’s
RFC is not a medical opinion, and a doctor’s opinion was not
required for the ALJ to assess Gordon’s RFC.
The Eleventh Circuit has also recognized that determining a
claimant’s residual functional capacity and ability to work is a
task for the ALJ, and not doctors.
See Robinson v. Astrue, 365 F.
App’x 993, 999 (11th Cir. 2010) (unpublished) (“[T]he task of
determining a claimant's residual functional capacity and ability
to work is within the province of the ALJ, not of doctors.”).
has also found an ALJ’s RFC finding can be supported by substantial
evidence even if there is no medical source statement in the
In Green v. Social Security Administration, the court
found the ALJ had properly refused to credit a Physical Capacities
Evaluation (“PCE”) from the claimant’s treating physician.
App’x 915, 922-23 (11th Cir. 2007) (unpublished).
The court in
Green rejected the claimant’s argument that without that PCE, there
was nothing in the record upon which the ALJ could base his RFC
Id. at 923.
The court held that other evidence from the
claimant’s doctors (which did not contain a PCE or RFC assessment)
was sufficient to support the ALJ’s finding that the claimant could
perform light work.
Id. at 923-24; see also Langley v. Astrue, 777
F Supp. 2d. 1250, 1258 (N.D. Ala. 2011) (holding RFC is not a
medical opinion and need not be based upon a doctor’s RFC opinion).
In the present case, there was sufficient medical and other
evidence in the record to allow the ALJ to assess Gordon’s RFC.
Therefore, a formal physical RFC assessment from a doctor was not
Both the ALJ’s RFC assessment, and his hypothetical
question to the vocational expert based on that assessment, are
supported by substantial evidence.
New Evidence Before the Appeals Council
Gordon next argues that the evidence submitted to the Appeals
depression and anxiety,” and that an “evaluation by Dr. Prince . .
. showed [she] was disabled due to degenerative disk disease.”
Pl.’s Br. 25.
Therefore, she argues, the Appeals Council either
did not consider the evidence, or ignored evidence of disability,
because it did not remand her claim.
administrative review process.
20 C.F.R. § 404.900(b) (“In each
step of the review process, you may present any information you
feel is helpful to your case.”).
The Appeals Council is required
to consider new and material evidence if it relates to the period
on or before the ALJ’s decision:
If new and material evidence is submitted, the Appeals
Council shall consider the additional evidence only where
it relates to the period on or before the date of the
administrative law judge hearing decision. The Appeals
Council shall evaluate the entire record including the
new and material evidence submitted if it relates to the
period on or before the date of the administrative law
judge hearing decision.
20 C.F.R. § 404.970(b).
If a claimant submits evidence that does
not relate to the period on or before the ALJ’s decision, the
Appeals Council must return the evidence to the claimant.
If you submit evidence which does not relate to the
period on or before the date of the administrative law
judge hearing decision, the Appeals Council will return
the additional evidence to you with an explanation as to
why it did not accept the additional evidence and will
advise you of your right to file a new application.
20 C.F.R. § 404.976(b).
When a claimant submits new evidence to the Appeals Council,
the regulations require the Appeals Council to “review the case if
it finds that the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of
20 C.F.R. § 404.970(b).
In the present case, the Appeals Council considered the new
evidence, but found it did not provide a basis for changing the
Therefore, Gordon’s argument that the
Appeals Council ignored or failed to consider her evidence is
4. Substantial Evidence of Disability Under the Listings
Gordon argues the ALJ’s decision was not based on substantial
evidence when the evidence submitted to the Appeals Council was
considered because it shows she is disabled under Listings 12.04
(Affective Disorder) and 12.06 (Anxiety Related Disorder).
She also argues the Appeals Council erred in not
remanding her claim.
Pl.’s Br. 14.
“When a claimant properly presents new evidence to the AC and
it denies review, [a reviewing court] essentially consider[s] the
claimant's evidence anew to determine whether ‘that new evidence
renders the denial of benefits erroneous.’”
Levie v. Comm’r of
514 F. App’x. 829, 832 (11th Cir. 2013) (unpublished)
(quoting Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1262 (11th
Therefore, this court must consider the record as a
whole, including the evidence submitted to the Appeals Council, to
supported by substantial evidence.
Ingram v. Comm’r of Soc. Sec.
Admin., 496 F.3d 1253, 1266 (11th Cir. 2007).
The court will first
consider whether the ALJ’s finding was supported by substantial
evidence in the record at the time of his decision, and then
determine whether the additional evidence submitted to the Appeals
Council renders that decision erroneous.
The burden is on Gordon to show that her impairments meet a
Barron v. Sullivan, 924 F.2d 227, 229 (11th
Cir. 1991). The regulations also provide that Gordon “must furnish
medical and other evidence that [the Commissioner] can use to reach
conclusions about [her] medical impairment(s) . . . .”
To meet a Listing Gordon’s impairment must “meet
manifests only some of those criteria, no matter how severely, does
(1990)(emphasis in original).
Gordon can meet Listing 12.04 or Listing 12.06, by showing
that she satisfies the criteria in paragraphs A and B of those
20 C.F.R. Pt. 404, Subpt. P, App. 1 (hereinafter
“Listing(s)”) §§ 12.04, 12.06.
Alternately, Gordon may show she
meets these Listings by satisfying the criteria of paragraph C of
Listing 12.04, or paragraphs A and C of Listing 12.06.
The A criteria of the Listings set forth clinical findings
that medically substantiate a mental disorder.
The criteria in paragraphs B and C describe functional limitations
that would prevent any gainful activity.
To satisfy the B criteria of either Listing 12.04 or 12.06,
Gordon must establish she has at least two of the following
limitations: (1) marked restriction of activities of daily living;
(2) marked difficulties in maintaining social functioning; (3)
marked difficulties in maintaining concentration, persistence, or
pace; or (4) repeated episodes of decompensation, each of extended
To satisfy the C criteria of Listing 12.04, Gordon must have
one of the following: (1) repeated episodes of decompensation, each
of extended duration; (2) a residual disease that has resulted in
such marginal adjustment that even minimal increase in mental
demands or change in the environment would be predicted to cause
the individual to decompensate; or (3) a current history of one or
more years’ inability to function outside a highly supportive
living arrangement with a need for such an arrangement to continue.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04.
For Listing 12.06,
the “C” criteria requires that the mental impairment results in the
“complete inability to function independently outside the area of
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.06.
Substantial evidence supports the ALJ's findings that Gordon's
mental impairments did not cause "marked" limitations in two of the
paragraph "B" criteria required to meet Listing 12.04 or 12.06. R.
activities of daily living.
To support this finding, the
ALJ noted Dr. Bentley, a consultative psychological examiner, noted
Gordon attended church, socialized with a few friends, enjoyed
caring for her dog, and completed her activities of daily living
The ALJ also observed that Dr. Stehr,
independent [in] all activities of daily living.” R. 39, 276. Dr.
cleaning, cooking, and doing laundry.
In the area of social functioning, the ALJ also found Gordon
had moderate limitations.
To support his finding, the ALJ
noted Gordon testified she lived with her mother and fiancé, and
that she gets out of the house once or twice a week. R. 39.
also noted she visits her children and grandchild.
further observed that Dr. Leonard, a state agency psychological
consultant, determined Gordon could have contact with co-workers,
In the areas of concentration, persistence or pace, the ALJ
found Gordon had moderate limitations.
semiskilled and skilled positions.
He also noted that Dr.
Bentley determined she was capable of managing her own funds.
After reviewing the medical evidence, Dr. Leonard, a State
agency medical consultant, determined Gordon had the ability to
understand, remember and carry out simple instructions, and to
concentrate for two hours. R. 293. Dr. Leonard’s opinion provides
additional evidence to support the ALJ’s finding.
decompensation of extended duration, and Gordon does not argue that
she has suffered such episodes.
Therefore, there was substantial
evidence in the record to support the ALJ’s finding that Gordon did
not satisfy the B criteria of either Listing 12.04 or 12.06.
The ALJ also reasonably found Gordon did not meet the C
criteria of listing 12.04, because there is no evidence showing
Gordon had either repeated episodes of decompensation, a residual
disease process that had resulted in such marginal adjustment that
environment would be predicted to cause her to decompensate, or a
current history of one or more years’ inability to function outside
a highly supportive living arrangement, with an indication of the
continued need for such an arrangement.
271-75, 293, 315-25, 329-33, 340-41.
See Listing 12.04C; R.
His finding that, the C
criterion of 12.06 was not met is also reasonable because the
evidence does not show Gordon’s impairment resulted in a complete
inability to function independently outside the area of her home.
See Listing 12.06C; R. 271-75, 293, 315-25, 329-33, 340-41.
To support her argument that her depression and anxiety meet
Listings 12.04 and 12.06, Gordon cites to diagnoses of depression
Pl’s Br. 21- 23.
However, merely being diagnosed
impairments interfered with her ability to perform basic work
See Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir.
2005) (unpublished) (citing McCruter v. Bowen, 791 F.2d 1544, 1547
(11th Cir.1986) (“[A] diagnosis or a mere showing of ‘a deviation
from purely medical standards of bodily perfection or normality’ is
insufficient; instead, the claimant must show the effect of the
impairment on her ability to work.”).
Moreover, the treatment records show medication was helping
Gordon’s mental condition, and that she was doing well. R. 320-21.
Also, Dr. Bentley noted in May 2008 that Gordon did not appear to
obsessions, or unusual behavior.
He also noted that her
mood was cheerful, and that she showed no indication of excessive
anxiety or restlessness.
The mental health treatment records also show Gordon was
assessed with GAF scores showing that her mental impairment caused
mild to moderate symptoms during her treatment at the CED Mental
She was initially assessed with a GAF score of 60
on March 23, 2009, and also received a GAF score of 60 on May 19,
R. 325, 322.
However, on June 18, July 16, and August 18,
2009, her GAF score was 62.5
R. 320, 315, 341.
These GAF scores
provide additional evidence supporting the ALJ’s finding that
Gordon’s impairment did not meet the B or C criteria of Listings
12.04 and 12.06.
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 32 (4th
Edition, Text Revision) (“DSM-IV-TR”). A rating of 51-60
reflects: “Moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate
difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers.)” DSM-IV-TR at
34 (emphasis in original).
A GAF of 61-70 indicates: “Some mild symptoms (e.g.,
depressed mood and mild insomnia), OR some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or
theft within the household), but generally functioning pretty
well, with some meaningful interpersonal relationships.” DSM-IVTR at 34 (emphasis in original).
When considered as a whole, there was substantial evidence in
the record to support the ALJ’s finding that Gordon did not meet a
This evidence included the treatment records from CED
Mental Health Center, Dr. Bentley’s consultative examination, the
State agency medical consultant’s report, and Gordon’s report of
her daily activities.
The evidence submitted to the Appeals Council does not render
the ALJ’s findings erroneous.
It shows Gordon continued to be
treated at the CED Mental Health Center after the date of the ALJ’s
decision. On January 11, 2010, she reported that her crying spells
had almost stopped, and she was assessed with a GAF score of 62.
Also, after the ALJ rendered his decision, Gordon’s attorney
referred her to Dr. Wilson for a psychological evaluation on
January 12, 2010.
Dr. Wilson found Gordon’s affect was within
normal limits, but that she “did appear to be depressed.”
He found that her mental control, concentration, and abstract
reasoning were adequate.
R. 366. In his summary, Dr. Wilson noted
Gordon reported that her medications gave her “some benefit,” but
He stated that she also had some
medical problems and chronic pain.
He opined that “the
combination of all of these problems would make it unlikely that
she could maintain employment,” and assessed a GAF score of 48.6
Although Dr. Wilson’s report provides some evidence to support
Gordon’s claim that she meets Listings 12.04 and 12.06, there is
determination that those Listings were not met.
For example, Dr.
Wilson’s GAF assessment and Mental Health Source Statement are
contradicted by the GAF score of 62 reported just one day before
his evaluation by Gordon’s treating mental health provider.
addition, Dr. Wilson’s opinion that Gordon’s “problems would make
it unlikely that she could maintain employment” is not a medical
opinion under the regulations. See Denomme v. Commissioner, Social
518 F. App’x 875, 878 (11th Cir. 2013) (finding
doctor’s statement that claimant’s condition would “likely prevent
assessment) (citing 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1)).
Therefore, the ALJ’s finding that Gordon did not meet a Listing is
not rendered erroneous by the new evidence submitted to the Appeal
A GAF of 41-50 indicates: “Serious 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).”
DSM-IV at 32 (emphasis in original).
Consistency with the Opinion of Dr. Prince
Finally, Gordon argues that an “evaluation by Dr. Prince . .
. showed [Gordon] was disabled due to degenerative disk disease.”
Pl.’s Br. 25.
Therefore, she argues the Appeals Council erred in
not remanding her case.
Dr. Prince’s examined Gordon at the request of her attorney on
March 18, 1010, over four months after the ALJ’s decision.
paresthesias in the right arm, a reduced range of motion in the
cervical spine, tenderness in the right trapezius, and crepitus in
the right shoulder.
R. 388. Dr. Prince’s assessment was “[t]otal,
complete, and permanent disability secondary to chronic major
mental illness with depression, major phobic reaction, and chronic
pain with cervical C5-C6 radiculitis.”
He also completed
a Physical Capacities Form, which indicated Gordon would be unable
to sustain full time work.
The ALJ relied upon the consultative examination of Dr. Stehr
and notes from Gordon’s treating doctors in assessing her physical
The medical records available to the ALJ did not show Gordon
sought treatment for her neck or shoulder pain after July 8, 2008,
when she was seen at Quality of Life Health Services.
date, she reported that her pain had improved since she began
taking prescription medications.
notes from Quality of Life Health Services submitted to the Appeals
Council show Gordon was seen on May 11, 2009, complaining of
shoulder pain and ear discomfort.
That note also states
that Gordon’s pain was relieved by her medications.
cervical spine, and right shoulder and elbow tenderness.
The Appeals Council evidence also shows Gordon sought treatment for
a headache and joint pain on August 7, 2009.
musculoskeletal examination showed cervical spine tenderness, with
bilateral shoulder tenderness. R. 455. These additional treatment
notes from Quality of Life Health Services do not show Gordon’s
degenerative joint disease was appreciably worse than the treatment
notes available to the ALJ. They also show Gordon sought treatment
for her physical impairments on a sporadic basis, which provides
substantial evidence to support the ALJ’s finding that her physical
impairments were not disabling prior to the date of his decision.
In addition, Dr. Prince’s report indicates Gordon’s primary
problem was her mental impairment, which was not his specialty. He
did not examine or have a treating relationship with Gordon, and
his one time consultative examination was conducted four months
after the ALJ’s decision.
He did not state that his findings
reflected Gordon’s condition as of the date of the ALJ’s decision.
Therefore, even if his opinions accurately reflected Gordon’s
physical impairments at the time of the examination, they would not
relate to Gordon’s condition at the time of the ALJ’s decision.
opinion, nor the other evidence submitted to the Appeals Council,
renders the ALJ’s physical RFC findings erroneous. His RFC finding
is reasonable and supported by substantial evidence even when the
new evidence is considered.
The court concludes the ALJ’s determination that Gordon is not
disabled is supported by substantial evidence, and that the ALJ
applied the proper legal standards in arriving at this decision.
An appropriate order will be entered.
DONE this 25th day of July, 2014.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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