Gordon v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 7/25/14. (SAC )

FILED
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
MIDDLE DIVISION
LYNN GORDON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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) Case No.
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4:12-CV-1625-WMA

MEMORANDUM OPINION
Lynn Gordon, plaintiff, brings this action seeking judicial
review of a final adverse decision of the Commissioner of the
Social

Security

Administration

denying

her

applications

for

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.
BACKGROUND
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.

R. 35.
R. 43.

Gordon was
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.

R. 42.

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.

R. 146-47.

She testified that she

had neck and shoulder pain that affected her ability to lift with
her right arm.

R. 150-51.

The medical treatment records show Gordon received treatment
for her mental impairments at the CED Mental Health center from
March 2009 through August 2009.
time,

she

received

R. 315-34, 340-41.

individual

therapy

medications to treat her condition.

and

During that

was

prescribed

She also received treatment

for her joint and neck pain at Quality of Life Health Services on
May 27 and July 8, 2008.

R. 308-14.

She was prescribed pain

medications, which she reported improved her pain.

R. 308.

After the ALJ’s decision, Gordon submitted additional medical
records

to

the

Appeals

Council.

Those

records

contained

a

consultative mental examination dated January 12, 2010, and a
consultative physical examination dated March 18, 2010. R. 363-69,
386-392.

The evidence submitted to the Appeals council also

contained treatment records from the CED Mental Health Center, and
from Quality of Life Health Services.

2

R. 371-85, 451-56.

A more

detailed description of this evidence is provided, to the extent it
is legally significant, in the sections that follow.
DISCUSSION
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).

Bloodsworth v.

To that end, this

court “must scrutinize the record as a whole to determine if the
decision

reached

evidence.”

Id.

is

reasonable

and

(citations omitted).

supported

by

substantial

Substantial evidence is

“such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.”

Id.

This court may not decide

the facts anew, reweigh the evidence, or substitute its judgment
for that of the Commissioner.

Id.

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
evidence.
Unlike

Id.
the

Commissioner’s

deferential
factual

review

findings,

“no

standard
similar

applied

to

presumption

the
of

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

3

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).

A

“physical or mental impairment” is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are
demonstrable

by

medically

diagnostic techniques.”

acceptable

clinical

and

laboratory

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:
(1)

whether the claimant is currently
substantial gainful activity;

4

engaged

in

The

(2)

whether the claimant has a severe impairment or
combination of impairments;

(3)

whether the claimant’s impairment meets or equals
the severity of an impairment in the Listing of
Impairments;1

(4)

whether the claimant can perform any of his or her
past work; and

(5)

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

Cir.

2011). The evaluation process continues until the Commissioner can
determine
§§

whether

404.1520(a)(4),

the

claimant

416.920(a)(4).

is
A

disabled.
claimant

20
who

is

C.F.R.
doing

substantial gainful activity will be found not disabled at step
one.

20 C.F.R. §§ 404.1520 (a)(i), 416.920(a)(4)(i).

A claimant

who does not have a severe impairment will be found not disabled at
step two.

20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

A

claimant with an impairment that meets or equals one in the Listing
of Impairments will be found disabled at step three.

20 C.F.R.

§§ 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

1

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.

5

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.
Cir. 1995).

Foot v. Chater, 67 F.3d 1553, 1559

(11th

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).
work

will

be

found

not

disabled

A claimant who can do other
at

§§ 404.1520(a)(4)(v), 416.920 (a)(4)(v).
other work will be found disabled.

step

five.

20

C.F.R.

A claimant who cannot do

Id.

Analysis
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.
37.

R.

He concluded Gordon did not suffer from a listed impairment.

R. 38.

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
scaffolds.

R. 40.

She was also limited to frequently lifting

2

Trichotillomania is the “compulsive pulling out of one’s
hair.” Dorland’s Illustrated Medical Dictionary 1743 (28th
Edition).

6

overhead, and was to avoid all work place hazards.

R. 40.

The ALJ

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.”

R. 40.

He also found she was “capable of casual

contact with co-workers and supervisors; and can handle slow
gradual changes in a work setting.”

R. 40.

With this RFC, the ALJ

found Gordon unable to perform her past relevant work.

R. 42.

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
at 1558-59.

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.”

Id.

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.

R. 44.

3

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).

7

Gordon challenges the ALJ’s decision on five separate grounds:
1) whether the ALJ’s RFC finding was supported by substantial
evidence

and

made

in

accordance

with

the

applicable

legal

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
Council

showed

Gordon

was

disabled

due

to

degenerative

disk

disease.
1.

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
conclusion,
findings)

citing
and

specific

nonmedical

medical

evidence

8

facts
(e.g.,

(e.g.,
daily

laboratory
activities,

observations).”

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.

Id.

A review of the ALJ’s decision

shows that it does contain such a narrative discussion.

R. 40-42.

The ALJ’s narrative explained how the ALJ evaluated Gordon’s
symptom-related functional limitations, and why he found her not
fully credible.

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.”

R. 41.

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.”

R. 42.

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
shoulders.”

R. 42.

The ALJ further observed that the treatment

records from Quality of Life Health Services “noted that [Gordon’s]
pain was relieved by prescribed medication.”
As

for

Gordon’s

mental

limitations,

R. 42.
the

ALJ

noted

that

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.”

9

R. 42.

He observed that these scores represent either moderate or mild
symptoms.

R. 42.

The ALJ also extensively discussed the mental

health treatment records in considering whether Gordon met a
Listing.
The

ALJ

concluded

that

although

Gordon

“does

have

some

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.”

R. 42.

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.”

R. 42.

He also

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.”

R. 42.

The

ALJ stated that he had “considered all the reasonable limitations
that the claimant has in determining her residual functional
capacity.”

R. 42.

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
records.”

R. 42.

He also

considered the opinions from Gordon’s

treating sources, and noted “that no treating source opinion

10

supports

disability

and

the

inconsistent with disability.”

treating

source

GAF

ratings

are

R. 42.

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
restriction.”

SSR 96-8p.

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:

“An individual’s

residual functional capacity is her ability to do physical and
mental work activities on a sustained basis despite limitations
from her impairments.”

R. 36.

The ALJ also specifically cited SSR

96-8p in his discussion of the standards governing his assessment
of Gordon’s RFC.

R. 37.

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.

11

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.

In

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
the Commissioner,

such

as

a

claimant’s RFC, are

not

medical

opinions.
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.
§ 404.1527(d).

One of the specifically excluded examples is a

claimant’s RFC.
Although we consider opinions from medical sources on
issues such as . . . your residual functional capacity .

12

. . the final responsibility for deciding these issues is
reserved to the Commissioner.
§ 404.1527(d)(2).

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.”).

It

has also found an ALJ’s RFC finding can be supported by substantial
evidence even if there is no medical source statement in the
record.

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).

223 F.

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
finding.

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).

13

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
required.

Both the ALJ’s RFC assessment, and his hypothetical

question to the vocational expert based on that assessment, are
supported by substantial evidence.
3.

New Evidence Before the Appeals Council

Gordon next argues that the evidence submitted to the Appeals
Council

showed

she

met

“listing

12.04(c)

and

12.06

due

to

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.
Claimants

may

submit

new

Id.

evidence

administrative review process.

at

each

step

of

the

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.

14

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
record.”

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
ALJ’s decision.

R. 2.

Therefore, Gordon’s argument that the

Appeals Council ignored or failed to consider her evidence is
without merit.
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).
Br.

13.

Pl.’s

She also argues the Appeals Council erred in not

remanding her claim.

Pl.’s Br. 14.

15

“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.’”
Soc. Sec.,

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
Cir.2007).

Therefore, this court must consider the record as a

whole, including the evidence submitted to the Appeals Council, to
determine

whether

the

final

decision

supported by substantial evidence.

of

the

Commissioner

is

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
listed impairment.

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) . . . .”
§ 404.1512(a).
all

of

the

20 C.F.R.

To meet a Listing Gordon’s impairment must “meet

specified

medical

criteria.

An

impairment

that

manifests only some of those criteria, no matter how severely, does

16

not

qualify.”

Sullivan

v.

Zebley,

493

U.S.

521,

530

(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
listings.

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.

Listing 12.00A.

The criteria in paragraphs B and C describe functional limitations
that would prevent any gainful activity.

Id.

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
duration.

Id.

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

17

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
one's home.”

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.
39.

The

ALJ

found

Gordon

activities of daily living.

had

only

R. 39.

moderate

limitations

in

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
without assistance.
a

consultative

R. 273.

physical

The ALJ also observed that Dr. Stehr,

examiner,

reported

Gordon

was

“100%

independent [in] all activities of daily living.” R. 39, 276. Dr.
Stehr further

noted

Gordon

could

do light

cleaning, cooking, and doing laundry.

housework

such

as

R. 276.

In the area of social functioning, the ALJ also found Gordon
had moderate limitations.

R. 39.

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.

18

He

also noted she visits her children and grandchild.

R. 39.

The ALJ

further observed that Dr. Leonard, a state agency psychological
consultant, determined Gordon could have contact with co-workers,
supervisors,

and

the

non-confrontational.

general

public

that

is

casual

and

R. 293.

In the areas of concentration, persistence or pace, the ALJ
found Gordon had moderate limitations.

R. 39.

finding,

relevant

the

ALJ

noted

Gordon’s

semiskilled and skilled positions.

past
R. 39.

Supporting his
work

was

He also noted that Dr.

Bentley determined she was capable of managing her own funds.
274.

in

R.

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.
The

medical

records

do

not

document

any

episodes

of

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

19

even

a

minimal

increase

in

mental

demands

or

change

in

the

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
and anxiety.
with

these

Pl’s Br. 21- 23.
conditions

does

However, merely being diagnosed
not

establish

that

her

mental

impairments interfered with her ability to perform basic work
activities.

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

20

be

in

any

expressive

distress;

had

communication;

no

difficulties

and

did

obsessions, or unusual behavior.

not

R. 272.

with

exhibit

receptive
any

and

phobias,

He also noted that her

mood was cheerful, and that she showed no indication of excessive
anxiety or restlessness.

R. 272.

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
Health Center.

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,
2009.4

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.

4

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).
5

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).

21

When considered as a whole, there was substantial evidence in
the record to support the ALJ’s finding that Gordon did not meet a
Listing.

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.”

R. 366.

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
that

“she

still

trichotillomania.”

struggles
R. 367.

with

depression,

panic

and

He stated that she also had some

medical problems and chronic pain.

R. 367.

He opined that “the

combination of all of these problems would make it unlikely that

22

she could maintain employment,” and assessed a GAF score of 48.6
R. 367.
Although Dr. Wilson’s report provides some evidence to support
Gordon’s claim that she meets Listings 12.04 and 12.06, there is
other

substantial

submitted

to

the

evidence
Appeals

in

the

Council

record,
that

including
supports

determination that those Listings were not met.

evidence

the

ALJ’s

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.

In

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
Sec. Admin.

518 F. App’x 875, 878 (11th Cir. 2013) (finding

doctor’s statement that claimant’s condition would “likely prevent
her

from

maintaining

gainful

employment”

was

not

a

medical

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
Council.

6

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).

23

5.

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.

Id.

Dr. Prince’s examined Gordon at the request of her attorney on
March 18, 1010, over four months after the ALJ’s decision.
92.

On

physical

examination,

he

found

R. 386-

dysesthesias

and

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.”

R. 389.

He also completed

a Physical Capacities Form, which indicated Gordon would be unable
to sustain full time work.

R. 390-91.

The ALJ relied upon the consultative examination of Dr. Stehr
and notes from Gordon’s treating doctors in assessing her physical
RFC.

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.

On that

date, she reported that her pain had improved since she began
taking prescription medications.

R. 308.

Additional treatment

notes from Quality of Life Health Services submitted to the Appeals

24

Council show Gordon was seen on May 11, 2009, complaining of
shoulder pain and ear discomfort.

R. 451.

That note also states

that Gordon’s pain was relieved by her medications.
musculoskeletal

physical

examination showed

R. 451.

tenderness

cervical spine, and right shoulder and elbow tenderness.

in

The
the

R. 452.

The Appeals Council evidence also shows Gordon sought treatment for
a headache and joint pain on August 7, 2009.

R. 454.

The

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.

25

For

these

reasons,

neither

Dr.

Prince’s

examination

and

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.
CONCLUSION
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.
Accordingly,
affirmed.

the

Commissioner’s

final

decision

is

due

to

be

An appropriate order will be entered.

DONE this 25th day of July, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

26