Toland v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 07/26/12. (CVA)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TRACI R. TOLAND,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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2012 Jul-26 AM 10:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

Civil Action Number
5:11-cv-2784-AKK

MEMORANDUM OPINION
Plaintiff Traci Toland (“Toland”) 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, and, therefore, AFFIRMS the decision denying
benefits.
I. Procedural History
Toland filed her applications for Title II Disability Insurance Benefits on
September 18, 2007, (R. 109), and for Supplemental Security Income on October
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1, 2007, (R. 114), alleging a disability onset date of August 2, 1998, (R. 109, 114).
After the SSA denied her applications, Toland requested and received a hearing on
October 28, 2009. (R. 31-56). At the time of the hearing, Toland was 43 years
old, had a high school diploma, and past relevant work as a fast food cook, truck
driver, and clothing store stocker. (R. 153). Toland has not engaged in substantial
gainful activity since May 30, 2007. (R. 153).
On January 6, 2010, the ALJ found that although Toland has fibromyalgia
and dysthymic disorder and cannot perform any past relevant work, Toland
nonetheless has a residual functional capacity (“RFC”) to perform limited
sedentary work. (R. 18-26). Therefore, the ALJ denied Toland’s claims. When
the Appeals Council refused to grant review, (R. 1-6), Toland filed this action for
judicial review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
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
proper legal standard. Title 42 U.S.C. §§ 405(g) and 1383(c) mandate 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
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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 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
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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)-(f). 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

(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
Turning now to the ALJ’s decision, the court notes that, initially, the ALJ
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determined that Toland has not engaged in substantial gainful activity since May
30, 2007, and therefore met Step One of the five step analysis. (R. 20). The ALJ
acknowledged that Toland’s combination of severe impairments of fibromyalgia
and dysthymic disorder met Step Two. Id. The ALJ proceeded to the next step
and found that Toland did not satisfy Step Three since her impairments or
combination thereof neither met nor equaled the requirements for any listed
impairment. (R. 21). Although he 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 Toland had the RFC to
perform light work . . . except where [Toland] cannot come into
contact with the public, cannot perform work in tandem with
coworkers, and is only capable of unskilled work where she can have
the option to sit or stand at will.
(R. 22). Further, the ALJ held that Toland could not perform any of her past
relevant work. (R. 24). Lastly, in Step Five, the ALJ considered Toland’s age,
education, work experience, RFC, and impairments, and determined that a
significant number of jobs exist in the national economy that Toland can perform,
such as a bench assembler, sorter, and hand packer. (R. 25). Because the ALJ
answered Step Five in the negative, the ALJ found that Toland is not disabled. (R.
26); see also McDaniel, 800 F.2d at 1030.

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V. Analysis
Toland contends that the ALJ’s determination is not based on substantial
evidence or the proper legal standards. Specifically, Toland asserts that the ALJ
(1) erred in rejecting the medical treating source opinion, (2) issued a RFC that is
not based on substantial evidence, and (3) failed to consider the evidence. Doc. 8
at 1. The court addresses each contention below.
A. The ALJ’s Did Not Err in Rejecting the Treating Source Opinion.
Toland’s first contention of error is related to the weight the ALJ assigned
to Dr. Mary Toland’s1 (“Dr. Toland”) September 25, 2007, opinion. Doc. 8 at 5.
Specifically, Toland claims the “ALJ purported to give [the September 25, 2007,]
opinion some weight but ultimately rejected it in favor of an earlier assessment in
July 2006 which implied [Toland] was capable of some work but not in her chosen
field.” Doc. 8 at 6-7. A review of the medical record shows that on July 21, 2006,
Dr. Toland noted that Toland accepted a position in adverse conditions in an IHOP
kitchen when Toland failed to obtain a job in a pharmacy. (R. 258). The work
purportedly resulted in some degree of heat injury such as nausea and vomiting
and exacerbated Toland’s fibromyalgia. Id. However, Dr. Toland did not opine
that these injuries rendered Toland disabled.

1

Dr. Toland is not related to Plaintiff Toland.
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Toland visited Dr. Toland a year later, on August 2, 2007, during which Dr.
Toland noted that Toland had a history of fibromyalgia, chronic pain, and fatigue
and that “[s]he has tried to do work at many jobs and the physical requirements
and stress have always worsened her condition.” (R. 250). Dr. Toland stated also
that Toland felt weak and off balanced at times while walking and occasionally
wobbled or fell. (R. 251). As a result, Dr. Toland opined that Toland could not
work in a kitchen for more than 10-15 minutes or bend low or reach high, and
must change positions from lying, sitting, or standing every 15-30 minutes
because of pain. Id. Dr. Toland made similar findings a month later when, on
September 25, 2007, she noted that Toland “suffers from fibromyalgia, chronic
pain, chronic fatigue which makes her unable to keep any kind of job. She must
constantly change positions and cannot sit, stand, walk, bend, stoop, or reach for
very long at a time.” (R. 140). It was during this visit that Dr. Toland opined that
Toland is disabled: “[b]ecause of this [i.e., Toland’s ailments] she is unable to
work. Her condition is not likely to improve at all and probably will worsen over
time. Because of this I feel it is in her best interest to permanently stop working.”
Id.
Toland claims that Dr. Toland’s September 25, 2007, opinion supports her
disability claim and contends that the ALJ erred when she rejected the opinion.
Doc. 8 at 5-7. Specifically, Toland contends that the ALJ erred when she opted to
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rely on Dr. Toland’s July 21, 2006, opinion instead because “[i]n light of the fact
that [the July 21, 2006, opinion] predated the alleged onset date by ten months,
this was hardly fair to [Toland] and detrimental to her credibility which reflected a
willingness to keep trying to work before resorting to a disability claim.” Doc. 8
at 7. As a threshold matter, the court notes that Toland’s contentions of error
ignore that the regulations make clear that the ALJ is responsible for assessing the
RFC. 20 C.F.R. § 416.946. Moreover, the regulations state unequivocally that
“[a] statement by a medical source that you are ‘disabled’ or ‘unable to work’ does
not mean that we will determine that you are disabled.” 20 C.F.R §
404.1527(d)(1). Instead, in determining whether a claimant is disabled, the ALJ
“will always consider the medical opinions in [the] case record together with the
rest of the relevant evidence [she] received.” 20 C.F.R.§ 404.1527(b).
Furthermore, “the ALJ may reject any medical opinion if the evidence supports a
contrary finding.” Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987).
Based on the court’s review of the record, it is clear the ALJ sufficiently
reviewed and considered Dr. Toland’s findings and gave them the proper weight.
First, the ALJ acknowledged Dr. Toland’s fibromyalgia diagnosis and accepted it
even though it lacked a clinical foundation: “[w]hile there was no clinical
evidence for the diagnosis of fibromyalgia, the [ALJ] accepted the diagnosis and
granted the limitations attributable to it.” (R. 21). As a result, the ALJ found that
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Toland can only perform limited sedentary work with the option to sit or stand at
will. (R. 22). However, the ALJ rejected Dr. Toland’s opinion that Toland is
totally disabled because it was “not supported by any clinical evidence . . . .” (R.
24). While Toland obviously disagrees, her contentions of error fail because the
ALJ’s decision is supported by substantial evidence. Specifically, the ALJ relied,
in part, on the December 3, 2007, Function Report-Adult-Third Party
questionnaire, (R. 195), Toland’s mother completed, (R. 24), three months after
Dr. Toland’s findings. In the questionnaire, although Toland’s mother reported
that pain affected Toland’s ability to lift, squat, bend, stand, reach, walk, sit, kneel,
and climb stairs, (R. 200), Toland’s mother stated that Toland lived alone with a
service dog that Toland cared for without assistance, vacuumed every two weeks,
washed dishes everyday, and washed laundry once a week with assistance, (R.
195-97). In other words, Toland is able to engage in some activity.
Significantly, the ALJ relied also on the medical evidence, including the
February 5, 2008, Consultative Examiner’s (“CE”) report by Dr. John Lary (“Dr.
Lary”), which, as a whole, does not support Dr. Toland’s findings of total
disability. For example, while Toland is relying on Dr. Toland’s opinions from
August and September 2007 to support her disability contention, the court notes
that when Toland visited Dr. Lary on February 5, 2008, Toland reported that she
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could stand for about 10-15 minutes and that she was generally able to dress, eat,
and bathe. (R. 319-321). Moreover, Dr. Lary found that Toland was in “no acute
distress,” could make a good fist with both hands, had no tenderness, warmth,
redness, or deformities, and had good strength. (R. 322). Finally, although Dr.
Lary found that Toland could only flex her upper body 30 degrees, hyperextend
only 5 degrees, and could not squat or rise from a kneeling position without
difficulty, Dr. Lary noted nonetheless that Toland did not use an assistive device
despite Toland’s alleged pain. (R. 319).
Two and a half months later, on April 24, 2008, based on a referral from Dr.
Toland, Dr. Morris Seymour (“Dr. Seymour”) examined Toland’s lumbar spine
and found that Toland “[e]xhibits average muscle development and erect posture
. . . . [and that] [n]o deformity is noted of the shoulders, pelvis, knees, ankles, and
feet.” (R. 363). During the exam, despite Toland’s report that only medication
helped her alleged pain, Dr. Seymour noted that he found nothing structural in the
x-rays to explain Toland’s alleged pain. (R. 363-364). Consequently, on April 29,
2008, Dr. Seymour performed a MRI of the thoracic spine that was otherwise
unremarkable, except for a very small parcentral disc protrusion to the T7/8 and T
8/9 levels. (R. 367). Finally, while Dr. Seymour also noted that Toland may be
suffering from fibromyalgia, (R. 369), Dr. Seymour never opined that Toland is
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disabled and unable to work.
The ALJ’s decision to rely on Drs. Lary’s and Seymour’s opinions, in
conjunction with Dr. Toland’s opinion, is supported by substantial evidence. As
the ALJ acknowledged, Dr. Seymour’s opinion was “consistent with Dr. Toland
who stated [Toland] had fibromyalgia and chronic low back pain,” (R. 23), and Dr.
Lary’s opinion was consistent with Dr. Toland who stated that Toland needed to
change positions frequently and could not sit, stand, walk, bend, or stoop, (R. 24).
Moreover, except for the total disability finding which the medical evidence failed
to support, the ALJ gave Dr. Toland’s opinion great weight and factored Dr.
Toland’s findings into the RFC by limiting Toland to unskilled sedentary work
with the option to sit or stand at will. (R. 22). Significantly, the ALJ’s decision to
reject Dr. Toland’s total disability finding is supported by substantial evidence
because although three doctors found that Toland has fibromyalgia, only Dr.
Toland opined that Toland is totally disabled. Furthermore, Dr. Toland made this
finding even though Toland admited she could stand for about 10-15 minutes at a
time, was generally able to dress, eat, and bathe herself, and lived alone. In other
words, the ALJ had sufficient evidence to discount Dr. Toland’s opinion.
2. The ALJ Properly Evaluated Toland’s Mental Health Limitations
Toland raises several alleged errors related to her mental health and the
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findings of consulting psychological examiner Dr. William McDonald (“Dr.
McDonald”). First, Toland contends that the ALJ erred because she “found that
[Toland] has had no mental health treatment but did not report that [Toland] has
been treated with Zoloft, Cymbalta, and Effexor at her treating clinic . . . . The
ALJ did not report or discuss a single medication, its type, dosage, effectiveness
and side effects as required.” Doc. 8 at 8. Despite this contention, Toland failed
to cite any evidence showing that she suffered from disabling side effects from her
medications. This failure is significant because Toland bears the burden of
proving that she is disabled and is responsible for producing evidence to support
her claim. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citations
omitted).
Second, Toland contends that the ALJ failed to properly consider Dr.
McDonald’s Global Assessment of Functioning (GAF) score of 50 and poor and
progressive prognosis because the ALJ improperly credited these findings to Dr.
Lary. Doc. 8 at 8. Toland is correct that the ALJ referred to Dr. McDonald as Dr.
Lary. (R. 24). However, this error is harmless because the ALJ referenced Dr.
McDonald’s opinion in making her RFC finding based on Toland’s mental health.
Id. Moreover, the error is also harmless because Dr. McDonald never opined that
Toland is disabled. Id. Rather, Dr. McDonald stated that Toland had adequate
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hygiene and grooming, walked with a slight limp, had to get up on several
occasions during the interview due to back pain, seemed irritable and depressed,
had low average range intelligence, suffered from major depression, and had a
pain disorder associated with both psychological factors and a general medical
condition, probably personality disorder, borderline and paranoid features,
fibromyalgia, and chronic back pain. (R. 331-332). Despite these findings, Dr.
McDonald disagreed with Toland’s assertions that she is disabled due to chronic
pain and found that Toland “appears generally capable of understanding, carrying
out, and remembering instructions, although memory and concentration are likely
to be somewhat impaired by her pain depressive symptoms, and medication
affects.” (R. 333). Significantly, Dr. McDonald blamed Toland’s problems on
irritability and negativity and opined that “[t]his is likely to impair her ability to
respond appropriately to supervision, co-workers and pressures. She is capable of
functioning independently . . . .” Id.
Third, Toland contends that the ALJ ignored Dr. McDonald’s opinion
because “Dr. McDonald did not opine that Plaintiff would be fine in the workplace
if supervisors and coworkers were removed from the work setting, or that memory
and concentration would be any better under these circumstances . . . .” Doc. 8 at
9. The court disagrees because the RFC determination is consistent with Dr.
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McDonald’s findings and, in fact, the ALJ limited Toland’s RFC to include that
Toland cannot interact with the public or perform work in tandem with coworkers.
(R. 22).
Finally, Toland asserts that the ALJ failed to acknowledge Dr. McDonald’s
GAF score of 50. Doc. 8 at 9. Basically, Toland claims that a GAF of 50 means
she is disabled. However, “an opinion concerning GAF, even if required to be
accepted as valid, would not translate into a specific finding in regard to functional
limitations.” Ward v. Astrue, No. 3:00-CV-1137-J-HTS, 2008 WL 1994978, at *3
(M.D. Fla. May 8, 2008). Thus, a GAF of 50 does not automatically support a
disability finding especially when, as here, the ALJ accounted for it and Toland’s
overall mental condition by adding additional limitations to Toland’s RFC.
Ultimately, Toland’s reliance on Dr. McDonald’s assessment to support her
disability claim fails because Dr. McDonald disagreed with Toland’s contention
that she is disabled due to her chronic pain, found that Toland “is capable of
functioning independently,” and that Toland’s irritability and negativity will likely
impair, not prohibit, Toland’s ability to respond appropriately to supervisors and
co-workers. (R. 333). In short, the evidence supports the ALJ’s decision to limit
Toland’s RFC to account for the mental limitations Dr. McDonald noted in his
examination of Toland. Accordingly, the RFC determination is consistent with
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Dr. McDonald’s assessment.
3. The ALJ Properly Considered the Evidence
Finally, Toland asserts the “Appeals Council merely added Exhibits 25F and
Exhibit 26F as well as Exhibits 27F through 32F to the record without comment
and erred in so doing and failing to remand for reevaluation of the evidence and
RFC.” Id. at 10. Although the Appeals Council specifically provided that “we
considered the reasons you disagree with the decision and the additional evidence
listed on the enclosed Order of Appeals Council,” (R. 1), Toland maintains that
“the evidence predates the ALJ decision and would reasonably have impacted both
physical RFC particularly with respect to upper body limitations, and the mental
RFC.” Doc. 8. at 10. The court disagrees.
The Federal Regulations provide that “[i]f 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.” 20 C.F.R. § 404.970(b); Smith v. Social Security Admin., 272 F. App’x
789, 800 (11th Cir. 2008). However, here, Toland submitted Exhibits 27F, 28F,
and 29F, documenting Toland’s breast cancer diagnosis, to the Appeals Council
prior to the ALJ’s decision on January 6, 2010. (R. 5-6, 26). Therefore, Toland
has no credible basis for claiming that the ALJ did not consider the newly
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submitted evidence before the ALJ issued her decision. Moreover, the ALJ may
have simply rejected the evidence since it does not support the disability claim.
Specifically, the evidence showed that on November 4, 2009, Toland received an
ultrasound of her left breast to intestate a lump, (R. 947), and was diagnosed with
breast cancer on or around November 17, 2009, (R. 945). On December 3, 2009,
Toland received a wire localized left lumpectomy with sentinel node biopsy, (R.
946), “tolerated the procedure well,” and was in stable condition. Id. On
December 29, 2009, Toland received a left subclavian vein french portocath
insertion and, again, “tolerated the procedure well.” (R. 945). As of December
29, 2009, Toland had yet to start chemotherapy and the medical records do not
indicate that Toland was in any significant pain. Id. While the court is
sympathetic to Toland’s condition, however, the “mere existence of [this
condition] does not reveal the extent to which [it] limit[s] [Toland’s] ability to
work or undermines the ALJ’s determination in that regard.” Moore v. Barnhart,
405 F.3d 1208, 1213 (11th Cir. 2005). Thus, at the time of the ALJ’s opinion, on
January 6, 2010, the record as whole, including the new medical records, did not
support a finding of disability. Accordingly, remand is not warranted based on the
substance of the new medical evidence.

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VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Toland is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. The final decision
of the Commissioner is, therefore, AFFIRMED. A separate order in accordance
with this memorandum of decision will be entered.
DONE the 26th day of July, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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