Hearn v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/26/2014. (PSM)

FILED
2014 Sep-26 PM 03:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

CHRISTOPHER HEARN,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.
4:12-cv-3892-AKK

MEMORANDUM OPINION
Plaintiff Christopher Hearn (“Hearn”) brings this action pursuant to Section
205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of
the final adverse decision of the Commissioner of the Social Security Administration
(“SSA”). This court finds that the Administrative Law Judge’s (“ALJ”) decision which has become the decision of the Commissioner - is supported by substantial
evidence. Therefore, for the reasons elaborated herein, the court will affirm the
decision denying benefits and deny Hearn’s motion to remand.
I. Procedural History
Hearn, who has no past relevant work, filed an application for Title XVI
Supplemental Security Income on December 1, 2008, alleging an amended disability
onset date of June 24, 2010, (R. 29), due to bipolar disorder and depression, (R. 251).
After the SSA denied Hearn’s claim, he requested a hearing before an ALJ. (R. 139-

40). The ALJ subsequently denied Hearn’s claim, (R. 26-45), which became the final
decision of the Commissioner when the Appeals Council refused to grant review, (R.
1-6). Hearn then filed this action for judicial review pursuant to § 205(g) of the Act,
42 U.S.C. § 405(g). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the correct legal
standards. See Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates that
the Commissioner’s “factual findings are conclusive if supported by ‘substantial
evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district
court may not reconsider the facts, reevaluate the evidence, or substitute its judgment
for that of the Commissioner; instead, it must review the final decision as a whole and
determine if the decision is “reasonable and supported by substantial evidence.” See
id. (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of
evidence; “[i]t is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Martin, 849 F.2d at 1529 (quoting Bloodsworth,
703 F.2d at 1239) (other citations omitted). If supported by substantial evidence, the
court must affirm the Commissioner’s factual findings even if the preponderance of
2

the evidence is against the Commissioner’s findings. See Martin, 894 F.2d at 1529.
While the court acknowledges that judicial review of the ALJ’s findings is limited in
scope, it notes that the review “does not yield automatic affirmance.” Lamb, 847 F.2d
at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to engage
in any substantial gainful activity by reason of any medically determinable physical or
mental impairments 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); 42 U.S.C. § 416(i). A physical or mental impairment is “an
impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrated by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. §§ 404.1520(a)-(g), 416.920(a)-(g). Specifically, the Commissioner must
determine in sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

3

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative answer
to any of the above questions leads either to the next question, or, on steps three and
five, to a finding of disability. A negative answer to any question, other than step
three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20 C.F.R. §
416.920(a)-(f)). “Once a finding is made that a claimant cannot return to prior work
the burden shifts to the Secretary to show other work the claimant can do.” Foote v.
Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Hearn had not
engaged in substantial gainful activity since June 24, 2010, and, therefore, met Step
One. (R. 44). Next, the ALJ found that Hearn satisfied Step Two because he
suffered from the severe impairments of “mood disorder, [not otherwise specified],
borderline IQ and personality disorder.” Id. The ALJ then proceeded to the next step
and found that Hearn failed to satisfy Step Three because he “does not have an
impairment or combination of impairments that meets or medically equals one of the
listed impairments.” Id. Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step
Four where he determined that Hearn has the residual functional capacity (RFC) to
perform “medium work as defined in 20 CFR 416.967(c) which allows simple,

4

repetitive, non-complex tasks. [Hearn] should primarily work with or around things
as opposed to the general public with no driving or exposure to unprotected heights.”
Id. Next, the ALJ found “[Hearn] has no past relevant work.” Id. Lastly, in Step
Five, the ALJ considered Hearn’s age, education, work experience,1 and RFC, and
determined “there are jobs that exist in significant numbers in the national economy
[Hearn] can perform.” Id. Therefore, the ALJ found that Hearn “has not been under
a ‘disability,’ as defined in the Social Security Act, since June 24, 2010.” (R. 45).
V. Analysis
The court now turns to Hearn’s motion for remand under sentences four and
six of 42 U.S.C. § 405(g), doc. 12, and his contentions that (1) his impairments meet
or equal a listed impairment; (2) the ALJ failed to afford proper weight to the
opinions of Dr. David Wilson, Ph.D.; (3) the ALJ failed to consider all of his severe
impairments; (4) the ALJ failed to consider Hearn’s impairments in combination; (5)
the ALJ’s hypothetical question to the vocational expert (VE) did not include all of
Hearn’s limitations when the evidence submitted to the Appeals Council is
considered; (6) the ALJ’s decision is not supported by substantial evidence when the
Appeals Council evidence is considered; and (7) the Appeals Council failed to show
in its written denial of review that it had adequately evaluated the new evidence. See
doc. 9 at 10-20. The court will addresses each contention in turn.

1

As of the date of the ALJ’s decision, Hearn was 38 years old, and had a
marginal education. (R. 44).
5

A.

Hearn’s Motion to Remand

Hearn contends that the record does not include evidence he submitted to the
Appeals Council,2 and moves the court to remand the case under sentences four and
six of 42 U.S.C. § 405(g)( hereinafter “sentence four” and “sentence six”).3 Doc. 12
at 1. In connection with Hearn’s request for review, the Appeals Council explained
why it did not consider this evidence:
The Administrative Law Judge decided your case through January 24,
2011. This new information is about a later time. Therefore, it does not
affect the decision about whether you were disabled beginning on or
before January 24, 2011.
If you want us to consider whether you were disabled after January
24, 2011, you need to apply again.
(R. 2). Based on this determination, the Appeals Council did not include the
submissions in the record, and presumably returned the evidence to Hearn.4

2

Hearn attached the medical records to his brief. Doc. 9-1.

3

Sentence four provides that “[t]he court shall have power to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of the Social Security, with or without remanding the
cause for a rehearing.” Sentence six states, in relevant part, that “[t]he court . . . may at
any time order additional evidence to be taken before the Commissioner, but only upon
showing that there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. §
405(g).
4

See 20 C.F.R. § 404.976(b) (“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 . . . .”).
6

Hearn’s contention that this court should remand the case under sentence four
is unavailing because any judgment of remand under sentence four must be “upon the
pleadings and transcript of the record.”5 As the Eleventh Circuit has recognized, “[a]
reviewing court is limited [to the record certified by the Commissioner] in examining
the evidence.” Cherry v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985).
Consequently, when, as here, the Appeals Council does not consider the evidence,
this court treats the evidence “as if it had been first presented to the district court and
. . . evaluate[s] the case under sentence six.” Ingram v. Comm’r of Soc. Sec. Admin.,
496 F.3d 1253, 1268 (11th Cir. 2007) (quoting Milano v. Bowen, 809 F.2d 763, 766
11th Cir. 1987) (internal quotation marks omitted).
To obtain a remand under sentence six, the settled law in this circuit requires
Hearn to establish that (1) there is new, noncumulative evidence; (2) the evidence is
material; and (3) there is good cause for failure to submit the evidence at the
administrative level. Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986). The
new evidence is material if it is “relevant and probative so that there is a reasonable
possibility that it would change the administrative result.” Id. Remand is not
warranted here because Hearn has not established that the evidence is relevant to his
condition at the time of the ALJ’s decision. Although Hearn correctly points out that

5

“As part of the Commissioner’s answer the Commissioner of Social Security
shall file a certified copy of the transcript of the record including the evidence upon
which the findings and decision complained of are based.” 42 U.S.C. § 405(g). The
evidence at issue here is not part of the certified transcript filed by the Commissioner.
7

treatment records after the date of the decision may be relevant, doc. 12 at 4, he does
not specify how or why the treatment records he submitted are relevant, except to
assert that “all submissions describe physical and psychological symptoms manifested
by [Hearn] that, due to their nature and severity, could bear on her [sic] condition
during the relevant period,” id. at 5 (emphasis added). Consequently, Hearn has
failed to failed to meet his burden of properly presenting the issue for decision. See
Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir.2009) (“[S]imply stating that
an issue exists, without further argument or discussion, constitutes abandonment of
that issue and precludes our considering the issue on appeal.”).
Alternatively, the court finds that the evidence is not material because it fails to
rise to the level necessary to show a reasonable expectation of changing the
administrative result. A review of the evidence submitted by Hearn shows that it is
not chronologically relevant to Hearn’s condition on or before January 24, 2011, the
date of the ALJ’s decision. For example, Hearn received treatment on March 22,
2011, for a cut on his left foot caused by a sharp piece of metal that occurred that day,
doc. 9-1 at 84, and, as such, is an injury that is unrelated to Hearn’s condition at the
time of the ALJ’s decision. The evidence rejected by the Appeals Council also
contains treatment records showing Hearn’s admission for three days to the Marshal
Medical Center South on April 25, 2011, for evaluation of chest pain radiating into
the left shoulder. Id. at 13. Significantly, at intake, Hearn reported “no significant
past medical history,” id. at 15, which belies his contention that his cardiovascular
8

problems manifested prior to the ALJ’s decision.6 The next treatment note submitted
by Hearn shows that he was treated at the ER on May 23, 2011, for a recent cut to his
hand caused by tin roofing, id. at 51, which obviously is not chronologically relevant.
Similarly, Hearn’s treatment on August 14, 2011, for shortness of breath of one week
duration is chronologically irrelevant, and in fact, documents that Hearn
“demonstrate[d] normal behavior,” and was able to “perform all activities of daily
living without assistance.” Id. at 66, 71.
The remaining treatment notes show Hearn sought treatment for chest pain of
two days duration on January 14, 2012, id. at 53-64, and was evaluated for suspected
seizures on January 11, 2012, id. at 88-103. These two treatment notes from
approximately one year after the ALJ’s decision are hardly chronologically relevant.
Finally, Hearn also submitted an updated psychological evaluation and mental health
source statement obtained in June 2012 (at the behest of his attorney) from Dr. David
Wilson, Ph.D.7 Id. at 94-103. Unfortunately for Hearn, Dr. Wilson’s evaluation of

6

Interestingly, when Hearn returned to Dr. Raymond Fernandez for a follow-up
of his cardiac condition on May 12, 2011, he “denie[d] depression, anxiety, memory loss,
mental disturbance, suicidal ideation, hallucinations, [and] paranoia,” doc. 9 at 10, which
supports the ALJ’s finding that Hearn’s mental conditions were not disabling. Similarly,
when Hearn saw Dr. Fernandez on November 14, 2011, Hearn requested a “cardiac
clearance to start a new job since he takes blood pressure medication.” Doc. 9-1 at 7.
On examination, Dr. Fernandez found “no depression, anxiety, or agitation” and stated
that Hearn was “[c]leared to go back to work.” Doc. 9-1 at 6-7.
7

Dr. Wilson also conducted a psychological evaluation of Hearn at the request of
his attorney on July 28, 2010. (R. 431-39). The ALJ properly gave Dr. Wilson’s July
2010 opinions little weight. See infra Part V.C.
9

Hearn’s mental state 18 months after the ALJ’s decision, in which he opined Hearn
“has more problems now than he did when he was seen [in July 2010],” is simply not
relevant to his mental condition at the time of the ALJ’s decision.
Based on its review of the evidence, the court finds the medical records
forming the basis of Hearn’s motion are not material because they are not
chronologically relevant, and are unlikely to change the administrative finding.
Accordingly, even if Hearn had properly presented the issue for decision, his motion
for remand is without merit and will be denied.
B.

The Listings

Hearn next contends that he meets listings 12.04, 12.06,8 and 12.08. Doc. 9 at
10-14; see 20 C.F.R. Pt. 404, Subpt. P, App. 1 (hereinafter “listing(s)”). Hearn bears
the burden of showing that his impairments meet or equal a listed impairment. Barron
v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). The regulations also provide that
Hearn “must furnish medical and other evidence that [the Commissioner] can use to
reach conclusions about [his] medical impairment(s).” 20 C.F.R. § 404.912(a).
Moreover, Hearn’s impairments must “meet all of the specified medical criteria. An

8

The ALJ did not specifically address listing 12.06, which covers anxiety related
disorders, likely because Hearn failed to present evidence showing that he was diagnosed
with an anxiety disorder. Nonetheless, the ALJ’s findings with respect to listings 12.04
and 12.08 are sufficient to show that Hearn does not meet listing 12.06 because the B
criteria of listing 12.06 is identical to those listings, and there is no evidence showing
Hearn meets the C criteria of listing 12.06, which requires a “complete inability to
function independently outside the area of one’s home.” Listing 12.06C.
10

impairment that manifests only some of those criteria, no matter how severely, does
not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original).
To determine whether Hearn met listing 12.04 or 12.08, the ALJ initially
considered whether Hearn satisfied the paragraph B criteria of the listings.9 As to the
first criteria–i.e. marked restriction of activities of daily living, see listings 12.04B(1),
12.06B(1), 12.08B(1), the ALJ found Hearn had only mild restrictions in activities of
daily living because Hearn’s statements “show he is able to take care of his personal
hygiene without assistance, watch television daily, and travel by walking or riding in a
car,” and that “ he was able to . . . go out without being accompanied.” (R. 38, 262,
264). The ALJ also noted that one of Hearn’s friends “indicated [Hearn] was able to
help with routine housework.” (R. 38, 271). Next, with respect to the second
criteria–i.e. marked difficulties in social functioning, see listings 12.04B(2),
12.06B(2), 12.08B(2), the ALJ found Hearn had moderate difficulties, and noted that
Hearn’s father testified that “Hearn and his girlfriend recently moved in together.” (R.
38-39, 114). The ALJ further observed that Hearn reported “he lived with his father
and helped to take care of him,” and “rode in the golf cart with his father when his

9

To satisfy the paragraph B criteria for all three listings, Hearn must establish he
has at least two of four 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. See listings 12.04B, 12.06B, 12.08B. For
the purposes of the mental disorder listings, “marked” means “more than moderate but
less than extreme.” Listing 12.00(C).
11

father played golf.” (R. 39, 435). The ALJ also noted that Hearn’s friend indicated
“that while [Hearn] had problems getting along with his family members, he
socialized with others fairly well.” (R. 39, 272). The ALJ then proceeded to the third
criteria–i.e. marked difficulties in maintaining concentration, persistence, or pace, see
listings 12.04B(3), 12.06B(3), 12.08B(3), and found that Hearn’s “testimony and prior
admitted activities of daily living fail to establish greater than a moderate degree of
restriction in this area.” (R. 39). Finally, the ALJ addressed the last criteria–i.e.
repeated episodes of decompensation, see listings 12.04B(4), 12.06B(4), 12.08B(4),
and found Hearn “has experienced no episodes of decompensation which have been of
extended duration,” because “the evidentiary record does not include any objective
findings [Hearn] has experienced episodic decompensation of extended duration.” Id.
Based on these findings, the ALJ determined that Hearn did not meet the paragraph B
criteria of listings 12.04 or 12.08. (R. 39).
The ALJ then addressed the paragraph C criteria of listing 12.0410 and found
that Hearn did not meet it because
[t]he evidentiary record does not reflect [Hearn’s] mental impairments
have caused the level of debilitation as alleged and does not indicate

10

Listing 12.08 contains no C criteria. To satisfy the paragraph C criteria of
listing 12.04, Hearn must show that he has 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 him 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. Listing 12.04C.
12

[Hearn] has mental impairments which have caused repeated episodes of
decompensation, or caused a disease process resulting in such a
marginal adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause decompensation.
He does not show that he has an inability to function outside of a highly
supportive living arrangement, or that he would have a continued need
for such arrangement.
(R. 39).11
To support his contention that the ALJ erred by finding he did not meet a
listing, Hearn quotes portions of his testimony and summarizes portions of the
medical evidence. Doc. 9 at 10-14. However, Hearn never explained how his
testimony shows that he meets a listing, nor does he contend that the ALJ erred in
assessing his credibility. Moreover, the evidence cited by Hearn is insufficient to
satisfy his burden of establishing that he meets one of the relevant listings,12 and fails

11

Although the ALJ did not address the C criteria of listing 12.06, his finding as
to listings 12.04 and 12.08 show that he found Hearn’s mental impairment did not result
in the “complete inability to function independently outside the area of one’s home,”
which is required under Listing 12.06C. Therefore, there is no need to remand this matter
for the ALJ to make a specific finding as to the C criteria for listing 12.06. See supra n.
8
12

In fact, much of the evidence cited by Hearn supports the ALJ’s findings. For
example, Hearn’s summary of the SSA consultative psychological examiner’s report
states that Hearn “[i]s able to relate interpersonally and withstand the pressures of
everyday work,” “is mildly compromised,” and that “[Hearn’s] deficits would not
interfere with his ability to remember, understand and carry out work related
instructions.” Doc. 9 at 10. At best, Hearn’s summary of the evidence shows that there
is evidence that supports his claim, as well as evidence that supports the ALJ’s findings.
Hearn has not, however, demonstrated that the ALJ’s factual findings are not supported
by substantial evidence.
13

to show that the ALJ’s findings are not supported by substantial evidence.13 To the
contrary, based on the record before this court, the ALJ reasonably found based on
substantial evidence that Hearn does not meet a listing. Accordingly, because this
court does not reweigh the evidence, there is no reversible error in the ALJ’s finding.
C.

Dr. Wilson’s Opinions

Hearn’s next contention is that the ALJ failed to afford proper weight to the
opinions of Dr. David Wilson, Ph.D., who examined Hearn on July 28, 2010, at the
request of his attorney. Doc. 9 at 14. As a nontreating source, Dr. Wilson’s opinions
are not entitled to controlling weight under 20 C.F.R. § 404.1527(c)(2).
Consequently, the ALJ had to consider several factors to determine the weight, if any,
to give Dr. Wilson’s opinions. These factors include whether Dr. Wilson (1) had
examined Hearn; (2) had a treating relationship with Hearn; (3) presented medical
evidence and explanation supporting the opinion; (4) provided an opinion that is
consistent with the record as a whole; and (5) is a specialist. See 20 C.F.R. §§
404.1527(c), 416.927(c). Moreover, the ALJ “may reject the opinion of any physician
when the evidence supports a contrary conclusion.” Bloodworth v. Heckler, 703 F.2d
1233, 1240 (11th Cir. 1983). Indeed, even a treating physician’s opinions, which are

13

Hearn’s reliance on the report of Dr. David Wilson, Ph.D., doc. 9 at 11, is
unavailing because the ALJ properly determined that Dr. Wilson’s opinions were entitled
to little weight. See infra Part V.C.
14

entitled to more deference than those of Dr. Wilson, may be rejected if the ALJ has
“good cause.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
To support his contention that the ALJ erred in rejecting Dr. Wilsons opinions,
Hearn directs the court to Wilder v. Chater, 64 F.3d 335 (7th Cir. 1995). In Wilder,
the court “consider[ed] with a degree of suspicion the administrative law judge’s
decision to go against the only medical evidence in the case, that of a psychiatrist not
retained by the applicant but appointed by the administrative law judge himself to
advise on [the claimant’s] condition.” Id. at 337 (emphasis added). This fact
distinguishes Wilder from the present case because, here, Dr. Wilson was retained by
Hearn’s attorney, and there was extensive medical evidence from both treating and
consultative examiners. In fact, the ALJ discussed in detail the inconsistencies
between Dr. Wilson’s findings and those of Dr. June Nichols, Ph.D., the SSA
consultative mental examiner. (R. 41-42). For example, the ALJ noted that during
Dr. Nichols’ evaluation, Hearn “could not recall the grades he made in school or
whether he exhibited any disciplinary problems,” and “did not recall his childhood or
his work history,” yet when he was evaluated by Dr. Wilson, Hearn “was able to
recall more detailed information as to the nature of his condition,” “was able to recall
incidents from his childhood in regard to mental health treatment as well as treatment
for seizures,” and could “recall the medication he was treated with as a child and
while he was incarcerated.” (R. 41). The ALJ also observed that while Hearn
reported to Dr. Nichols that “he lived with friends and enjoyed talking with them,” he
15

told Dr. Wilson “that he did not have friends or participate in social activities.” Id.
Moreover, the ALJ found it significant that Dr. Wilson assessed Hearn with a GAF
score of 50, indicating severe mental symptoms,14 yet Dr. Nichols assessed a GAF
score of 68,15 indicating only mild symptoms. Id. Therefore, unlike in Wilder, the
ALJ here properly relied on other medical evidence to reject Dr. Wilson’s opinions.
Based on the record before this court, it is evident that the ALJ considered the
factors set forth in the regulations and, consistent with the law of this circuit,
articulated good cause for giving Dr. Wilson’s opinions little weight: i.e., that Dr.
Wilson’s opinions were inconsistent with the other medical evidence. Therefore, the
ALJ did not err by giving Dr. Wilson’s opinions little weight. See Bloodworth, 703
F.2d at 1240 (physician’s opinion may be rejected “when the evidence supports a
contrary conclusion.”). Accordingly, because this court does not reevaluate the
evidence, or substitute its judgment for that of the Commissioner, see Martin, 894
F.2d at 1529, the ALJ committed no reversible error.
14

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 ed., Text Revision) (“DSM-IV-TR”). 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-TR at 34 (emphasis in original).
15

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-IV-TR at 34 (emphasis
in original).
16

D.

The ALJ’s Consideration of Hearn’s Severe Impairments

Next, Hearn contends that the ALJ erred by not considering all of his severe
impairments. Doc. 11 at 10-11. Hearn’s contention is unavailing because in this
circuit, “[n]othing requires that the ALJ must identify, at step two, all of the
impairments that should be considered severe,” so long as Hearn’s impairments were
considered in combination at the later steps. Heatly v. Comm’r of Soc. Sec., 382 F.
App’x 823, 825 (11th Cir. 2010). Consistent with the law, the ALJ found Hearn had
multiple severe impairments and proceeded to Step Three, where he found there were
“insufficient findings . . . to confirm the presence of an impairment or combination of
impairments that meet or equal in severity the criteria of a listed impairment.” (R.
44). This finding alone is sufficient to establish that the ALJ considered Hearn’s
impairments in combination. See Jones v. Dep’t of Health & Human Servs., 941 F.2d
1529, 1533 (11th Cir.1991) (ALJ’s finding that claimant did not have “an impairment
or combination of impairments listed in, or medically equal to one [in the Listings]”
is sufficient to show the impairments were considered in combination) (emphasis in
original). Moreover, the ALJ recognized that in assessing Hearn’s RFC, he had to
“consider all of [Hearn’s] impairments, including impairments that are not severe.”
(R. 30). Finally, the regulations state that the only consequence of the analysis at Step
Two is that if the ALJ finds no severe impairment or impairments, he should reach a
conclusion of no disability. See C.F.R. § 404.920(c)a)(ii). Accordingly, even
assuming that Hearn is correct, the ALJ’s failure to identify all of his severe
17

impairments is harmless because it did not, in any way, change the ALJ’s decision.
See Caldwell v. Barnhart, 261 F. App’x 188, 190 (11th Cir. 2008) (citing Diorio v.
Heckler, 721 F.2d 726, 728 (11th Cir.1983)).
E.

The ALJ’s Consideration of Hearn’s Impairments in Combination

Hearn next contends that the ALJ did not properly consider Hearn’s
impairments in combination. Doc. 9 at 15-16. As Hearn correctly notes, when a
claimant has several impairments, the Commissioner “has a duty to consider the
impairments in combination and to determine whether the combined impairments
render the claimant disabled.” Jones v. Department of Health and Human Services,
941 F.2d 1529, 1533 (11th Cir. 1991). Unfortunately, Hearn does not develop his
argument except to assert that
[t]he record clearly indicates that [Hearn] is suffering from a
combination of impairments: bipolar disorder and depression s/p
multiple suicidal attempts, schizophrenia and psychiatric disturbance
with hallucinations, antisocial personality disorder, mood disorder,
borderline intelligence, chronic coronary atherosclerosis of coronary
artery and hypertensive heart disease, history of seizure disorder,
asthma, and insomnia.16
16

Hearn testified that his only physical problems were his history of seizures and
that his shoulder was “messed up.” R. 104. In fact, in response to the ALJ’s Pre-Hearing
Order, Hearn’s counsel indicated Hearn alleged no exertional limitations. (R. 425).
Moreover, there are no treatment records showing a coronary impairment prior to the
ALJ’s decision, and the Appeals Council properly refused to consider evidence related to
that impairment because it did not relate to the time of ALJ’s decision. See supra Part
V.A.

18

Doc. 9 at 16. Significantly, Hearn does not explain how this combination of
conditions limits his ability to work, and “the mere existence of these impairments
does not reveal the extent to which they limit [Hearn’s] ability to work or undermine
the ALJ’s determination in that regard.” Moore v. Barnhart, 405 F.3d 1208, 1213
(11th Cir. 2005). In other words, Hearn has “simply stat[ed] that an issue exists,
without further argument or discussion,” which “constitutes abandonment of that
issue and precludes . . . considering the issue on appeal.” Singh, 561 F.3d at 1278. In
any event, there is no error here because the ALJ recognized his obligation to
“consider all of [Hearn’s] impairments, including impairments that are ‘not severe’” in
assessing his RFC, (R. 30), properly considered Hearn’s impairments in combination,
and specifically found that “[Hearn] does not have an impairment, or combination of
impairments, which meets or equals the criteria of [a listed impairment].” (R. 38). As
stated previously, this finding alone is sufficient to establish that the ALJ considered
Hearn’s impairments in combination. See Jones, 941 F.2d at 1533. Therefore,
Hearn’s contention is unavailing.
F.

The ALJ’s RFC Finding and Hypothetical Question to the VE

Hearn challenges next the ALJ’s finding that Hearn can do medium work.
According to Hearn, “[t]here is no evidence that [Hearn] can perform medium work,”
and the ALJ erred by posing an “hypothetical question [to the VE that] did not
include [Hearn’s] mental conditions.” Doc. 9 at 17. Despite making these
contentions, Hearn failed to explain how his mental condition limits his ability to
19

work more than the ALJ provided for in his RFC assessment, or why his physical
impairments preclude medium work. This failure dooms Hearn’s case, especially
since, in response to the ALJ’s Pre-Hearing Order, Hearn’s counsel indicated that
Hearn alleged no exertional limitations. (R. 425); see Street v. Barnhart, 133 F.
App’x 621, 627 (11th Cir. 2005) (ALJ is not required to investigate allegations “not
presented at the time of the application for benefits and not offered at the hearing as a
basis for disability”) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)).
Alternatively, Hearn’s contentions miss the mark because the ALJ included mental
restrictions in his RFC assessment by providing that Hearn “should primarily work
with or around things as opposed to the general public,” and by limiting him to
“simple, repetitive, non-complex tasks.” (R. 44). Simply put, Hearn has not met his
burden of showing that his mental impairments cause restrictions greater than those
found by the ALJ. See 20 C.F.R. § 416.912(c) (“You must provide medical evidence
showing that you have an impairment(s) and how severe it is during the time you say
that you are disabled.”); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(“[T]he claimant bears the burden of proving that he is disabled, and, consequently, he
is responsible for producing evidence in support of his claim.”) (citing 20 C.F.R. §
416.912(a), (c)). Accordingly, Hearn has not shown that the hypothetical question to
the VE failed to properly account for Hearn’s restrictions, and, his contention is
without merit.

20

G.

VE Testimony and the Evidence Considered by the Appeals
Council

As his next basis for alleged error, Hearn maintains that the ALJ’s decision is
not supported by substantial evidence when the evidence he submitted to the Appeals
Council is considered.17 If a claimant “properly presents new evidence to the
[Appeals Council] 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, 514 F. App’x. at 832 (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 made part of the record by the Appeals
Council, to determine whether the ALJ’s findings are supported by substantial
evidence. Ingram, 496 F.3d at 1266.
According to Hearn, the ALJ “relied on VE testimony, which was not based on
a correct or full statement of [Hearn’s] limitations and impairments.” Doc. 9 at 17.
Presumably Hearn is maintaining that the records he submitted to the Appeals
Council outline his full limitations. In any event, Hearn appears to base this
contention, in part, on the ALJ’s failure to credit his testimony: “[Hearn] testified
regarding his paranoia and the VE concluded that if [Hearn] could not be around
17

As discussed above, supra Part V.A., the court may only consider the evidence
made part of the record by the Appeals Council to determine whether a remand under
sentence four is warranted. Therefore, the court will only consider the additional
evidence made part of the record by the Appeals Council in connection with Hearn’s
contention.
21

people, he would be unable to work.” Doc. 9 at18. Unfortunately, Hearn does not
explain why the ALJ’s credibility finding is not supported by substantial evidence, or
cite to any specific evidence submitted to the Appeals Council to support his
contention of error. Hearn cannot make such a showing because a review of the
ALJ’s decision shows that the ALJ properly considered and rejected Hearn’s
testimony about disabling mental symptoms:
[Hearn’s] statements concerning his impairments and their impact on
his ability to work are not fully credible in light of the evidentiary
record. Although [Hearn] testified he experienced disabling limitations
due to mental impairments, the evidentiary record included limited
mental health treatment records to document his allegations. The
medical evidence reflects [Hearn] had a sporadic history of mental
health treatment for mood disorder NOS and antisocial personality
disorder consisting of two treatment visits in 2007 and one visit in
2009. Medical records reflect treatment for a possible drug overdose in
2009. And, the evidentiary record also included a few references to the
[Hearn’s] sporadic use of medication. Of note, is that contrary to
[Hearn’s] testimonial contention he experiences significant limitations
from his mental impairments, no such limitations were indicated in the
treatment notes of his limited records. At any rate, this treatment period
is prior to [Hearn’s] amended onset date of disability of June 24, 2010.
(Exhibits 1F, 5F, 9F,11F).
(R. 40). This discussion establishes that, in accordance with the law of this circuit,
the ALJ articulated specific reasons for discounting Hearn’s testimony of disabling
symptoms, and properly considered the conservative and sporadic nature of Hearn’s
treatment in assessing his credibility. See Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th. Cir. 2005) (ALJ properly considered gaps in treatment); Falcon v. Heckler, 732
F.2d 827, 832 (11th Cir. 1984) (ALJ properly considered conservative nature of

22

treatment). Significantly, even though the ALJ did not credit Hearn’s testimony of
disabling symptoms, he recognized that Hearn had some limitations caused by his
mental impairments by providing that Hearn “should primarily work with or around
things as opposed to the general public” and by limiting him to “simple, repetitive,
non-complex tasks.” (R. 44). Therefore, the court finds that substantial evidence
supports the ALJ’s determination that these restrictions account for Hearn’s
symptoms. Accordingly, because this court does not reweigh the evidence, there is no
reversible error in the ALJ’s credibility finding.
Moreover, contrary to Hearn’s contention, the evidence considered by the
Appeals Council does not render the ALJ’s credibility finding erroneous. The
evidence included additional mental healthcare treatment records prior to Hearn’s
alleged onset of disability, which showed that Hearn was treated while in jail for a
mood disorder and anti-social disorder on July 13, 2007, (R.482-86), and August 1,
2007, (R. 489-90). However, these records are cumulative of treatment records from
the same period that the ALJ considered, and show that Hearn was taken to the
emergency room with depression and self inflicted wounds to his right wrist on July
5, 2007, (R. 394-399), and August 3, 2007, (R. 380-85). Because the “new” evidence
does not show Hearn’s condition was worse than reflected in the evidence available
to the ALJ, it does not render the ALJ’s decision erroneous. Likewise, the treatment
records from May and June 2009, (R. 488, 480), which also show Hearn received
treatment for a mood disorder, are cumulative of evidence from the same time period
23

that the ALJ reviewed. In a nutshell, the ALJ had evidence before him that showed
that Hearn received treatment for a self inflicted superficial cut to his right wrist on
May 3, 2009, (R. 426-29, 451-53), for mood swings, depression and poor sleep on
May 7, 2009, (R. 430), and for a drug overdose and depression on May 26, 2009, (R.
440-50). In other words, rather than undermining the ALJ’s findings, the “new”
evidence from May and June 2009 shows Hearn’s mood was euthymic, and that he
was “really very jovial” on June 5, 2009. In short, the “new” evidence does not
render the ALJ’s decision erroneous.
Hearn also submitted treatment notes from after his alleged onset date that
show he contacted the C.E.D. Mental Health Center by phone on August 3, 2010,
seeking treatment, (R. 491-93), and that he underwent an intake evaluation on
September 27, 2010, (R. 495-500). The notes also show that although Hearn was
scheduled to return for individual therapy on October, 18, 2010, (R. 494), he failed to
keep the appointment, (R. 501). When the Center contacted Hearn by phone on
October 27, 2010, Hearn’s father stated that Hearn no longer wanted to receive
treatment, and, as a result, he was discharged from treatment against professional
advice. (R. 502-03). As is apparent, this evidence does not undermine the ALJ’s
decision, which was based in part on Hearn’s sporadic mental health treatment
history. (R. 40).
Ultimately, based on this record, Hearn has failed to demonstrate that the
evidence considered by the Appeals Council shows the ALJ erred in failing to credit
24

Hearn’s testimony about his paranoia symptoms. In fact, the evidence from 2010
supports the ALJ’s finding that Hearn’s sporadic treatment weakened his credibility.
Accordingly, the court finds that substantial evidence supports the ALJ’s decision
even when the Appeals Council evidence is considered.
H.

The Appeals Council’s Denial of Review

Hearn’s final contention of error is that the Appeals Council inadequately
reviewed the new evidence. Doc. 9 at 18. Although the Appeals Council refused to
consider much of the evidence Hearn submitted, see supra Part V.A., it accepted a
portion of it and made it part of the record, (R. 6). However, the Appeals Council
explained that after considering the evidence, it “found that this information does not
provide a basis for changing the Administrative Law Judge’s decision.” (R. 1-2).
According to Hearn, “[t]his review is purely conclusory, and it epitomizes
‘perfunctory adherence’ to the ALJ decision,” which he contends requires this court
to remand the case. Doc. 9 at 20.
To support his contention, Hearn relies on Epps v. Harris, in which the court
found that the Appeals Council’s failure to adequately evaluate new evidence
required a remand:
Although the Appeals Council acknowledged that Epps had submitted
new evidence, it did not adequately evaluate it. Rather, it perfunctorily
adhered to the decision of the hearing examiner. This failure alone
makes us unable to hold that the Secretary’s findings are supported by
substantial evidence and requires us to remand this case for a
determination of Epps’ disability eligibility reached on the total record.

25

624 F.2d 1267, 1273 (5th Cir. 1980) (citing Mann v. Gardner, 380 F.2d 182, 187 (5th
Cir. 1967).18 Hearn’s reliance on Epps is misplaced because, in Epps, the Appeals
Council did not deny review; rather it granted review and then affirmed the decision
of the ALJ. Id. at 1269, 1272; see also Edwards v. Colvin, No. 2:11cv883-SRW,
2013 WL 6772975 (M.D. Ala. Dec. 20, 2013) (explaining why Epps involved the
Appeals Council’s granting of review and affirmance of the ALJ’s decision, rather
than a denial of review). Significantly, the pertinent regulation in effect at the time
required that when the Appeals Council grants review, its “decision shall be made in
writing and contain findings of fact, and a statement of the reasons.” 20 C.F.R. §
404.950(c) (1980).19 Therefore, in Epps the Appeals Council was compelled by the
regulations to explain its reasons.
In contrast, here, the Appeals Council did not enter a decision affirming the
ALJ.20 As a result, Epps writing requirement is not controlling. Moreover, contrary
to Hearn’s contention, the Appeals Council’s statement that it “considered the reasons
[Hearn] disagree[d] with the decision and the additional evidence listed on the
18

Decisions of the former Fifth Circuit rendered prior to October 1, 1981, are
binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F. 2d 1206,
1209 (11th Cir. 1981) (en banc).
19

The current regulation provides that if the Appeals Council reviews a case and
issues a decision, “[a] copy of the Appeals Council’s decision will be mailed to the
parties at their last known address.” 20 C.F.R. § 404.979 (2012).
20

The Appeals Council’s denial of review is not a decision. See 20 C.F.R. §
404.981 (“The Appeals Council may deny a party’s request for review or it may decide
to review a case and make a decision.”) (emphasis added).
26

enclosed Order of Appeals Council,” and that it “found that this information does not
provide a basis for changing the Administrative Law Judge’s decision,” (R. 1-2), is
sufficient to show that it actually considered the relevant evidence. After all,
“nothing requires the [Appeals Council] to further explain its denial of review.”
Levie v. Comm’r of Soc. Sec., 514 F. App’x 829, 832 (11th Cir. 2013) (finding
identical language sufficient); see also Mansfield v. Astrue, 395 F. App’x 528, 530
(11th Cir. 2010) (“Because a reviewing court must evaluate the claimant’s evidence
anew, the Appeals Council was not required to provide a more thorough explanation
than it did.”). Accordingly, the court finds no error in the Appeals Council’s
consideration of the new evidence.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Hearn is not disabled is supported by substantial evidence, and that the ALJ applied
proper legal standards in reaching this determination. Therefore, the Commissioner’s
final decision is AFFIRMED. A separate order in accordance with the memorandum
of decision will be entered.
DONE this 26th day of September 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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