Garrard v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 12/9/2014. (JLC)

FILED
2014 Dec-09 AM 10:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
KATHERINE GARRARD,
Plaintiff,
v.
CAROLYN COLVIN,
ACTING COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 6:13-CV-1846-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff Katherine Garrard (“Garrard”) brings this action under 42 U.S.C.

§ 405(g), Section 205(g) of the Social Security Act. She seeks review of a final
adverse decision of the Commissioner of the Social Security Administration
(“Commissioner”), who denied her application for disability, Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”).1 Garrard timely pursued
and exhausted her administrative remedies available before the Commissioner. The

1

In general, the legal standards applied are the same regardless of whether a claimant
seeks DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI
claims. Therefore, citations in this opinion should be considered to refer to the appropriate
parallel provision as context dictates. The same applies to citations of statutes or regulations
found in quoted court decisions.

case is thus ripe for review under 42 U.S.C. § 405(g).2 The court has carefully
considered the record and, for the reasons which follow, finds that the decision of the
Commissioner is due to be AFFIRMED.
II.

FACTUAL AND PROCEDURAL HISTORY
Garrard was fifty-three years old on her amended alleged onset date and

fifty-four years old when the ALJ issued his decision. (Tr. 122). She has a high school
education, at least two years of college, and past relevant work as a customer service
technician, warehouse worker, food service manager, truck driver, waitress, baker, and
secretary. (Tr. 65-66, 628). She claims disability due to bipolar disorder, depression,
anxiety, panic disorder, post-traumatic stress disorder (“PTSD”), a vaginal hernia
problem, MRSA,3 leg and knee pain, narcolepsy, carpal tunnel syndrome, and
breathing difficulty. (Tr. 51, 59).
Garrard filed protective applications for a period of disability, Disability
Insurance Benefits, and Supplemental Security Income on June 9, 2010. (Tr. 23,
1122-32). Garrard alleged disability beginning February 27, 2010, but later amended
her onset date to July 1, 2011. (Tr. 23, 51, 122, 124). Her applications were denied
initially and on reconsideration. (Tr. 23, 76-82). She requested a hearing before an
2

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
3

Methicillin-resistant staphylococcus aureus, a bacterial infection.
2

ALJ, which was held on March 8, 2012. (Tr. 23, 47-70, 86-87). The ALJ issued an
unfavorable decision on April 27, 2012. (Tr. 23-32). The Appeals Council denied
Garrard’s request for review on August 6, 2013 (Tr. 1-6).
Garrard filed a Complaint with this court on October 7, 2013, seeking review
of the Commissioner’s determination. (Doc. 1). The Commissioner answered on
February 3, 2014. (Doc. 9). Garrard filed a supporting brief (doc. 12) on April 28,
2014, and the Commissioner responded with her own (doc. 13) on June 4, 2014.
III.

STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.

The 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.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
3

presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
IV.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a period

of disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder. The Regulations define "disabled" as "the
inability to do 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 (12)
months." 20 C.F.R. § 404.1505(a). To establish an entitlement to disability benefits,
a claimant must provide evidence about a "physical or mental impairment" which
"must result from anatomical, physiological, or psychological abnormalities which can
be shown by medically acceptable clinical and laboratory diagnostic techniques." 20
C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
4

is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1) whether the claimant is currently employed;
(2) whether the claimant has a severe impairment;
(3) whether the claimant's impairment meets or equals an impairment listed
by the [Commissioner];
(4) whether the claimant can perform his or her past work; and
(5) whether the claimant is capable of performing any work in the national
economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561,
562-63 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.
1986). The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will automatically be
found disabled if she suffers from a listed impairment. If the claimant does not
have a listed impairment but cannot perform her work, the burden shifts to the
[Commissioner] to show that the claimant can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
V.

ALJ FINDINGS
After consideration of the entire record, the ALJ made the following findings:
1.

Garrard had not engaged in substantial gainful activity since February
29, 2010, the [initially] alleged onset date.
5

2.

She had the following severe impairments: a history of asthma and
posttraumatic stress disorder with associated depression and anxiety.

3.

She did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.

4.

She had the residual functional capacity to perform medium work. She
should never climb ladders, ropes, or scaffolds; she should avoid
concentrated exposure to fumes, odors, dusts, gases, poor ventilation,
etc.; she should avoid all exposure to hazardous machinery and
unprotected heights; she is capable of understanding and remembering
simple but not detailed instructions over an eight-hour workday with
routine breaks; and she can tolerate occasional contact with the public,
coworkers, and supervisors.

5.

She is capable of performing past relevant work as a warehouse worker,
as this work does not require the performance of work-related activities
precluded by the claimant’s RFC.

6.

In the alternative, considering her age, education, work experience, and
RFC, there are other jobs that exist in significant numbers in the national
economy that she also can perform.

7.

Garrard has not been under a disability, as defined in the Social Security
Act, from February 27, 2010, through the date of the decision.

(Tr. 25-31).
VI.

ANALYSIS
The court may only reverse a finding of the Commissioner if it is not supported

by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
6

F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).4 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Garrard urges this court to reverse the Commissioner’s decision to deny her
benefits on two grounds. She contends that the evidence showed that her condition
met the Commissioner’s listed impairment of affective disorder. She also argues that
the ALJ failed to give proper weight to the primary treating physicians’ medical
records and opinions.5 These arguments will be treated in turn.
A.

The ALJ Committed No Reversible Errors In His Finding That
Garrard Did Not Meet A Listed Impairment
1.

There Were No Errors In The ALJ’s Finding That The
Paragraph B Criteria Were Not Met

Garrard argues that the ALJ erroneously failed to find that she had presented
evidence to meet the criteria for Listing 12.04- Affective Disorder. She contends that
she has presented evidence sufficient to satisfy Paragraphs A, B, and C of Listing
12.04, qualifying her as disabled. (Doc. 12 at 22-25).

4

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
5

The Plaintiff’s Brief gives separate headings for the issues of the primary treating
physician’s medical records and the primary treating physician’s opinion. (Doc. 12 at 1, 19).
However, there is only one body of argument given, and so the court will discuss both issues in
this section.
7

In the third step of the sequential analysis, the claimant’s impairments are
compared to a list of impairments that are considered severe enough to preclude an
adult from performing any gainful work. Sullivan v. Zebley, 493 U.S. 521, 532 (1990).
The listings thus are more restrictive than the statutory standard, in that they do not
take age, education, or work experience into account, and they recognize only
impairments that would prevent one from performing any gainful work (rather than
“substantial gainful activity”). Id. If an impairment meets or equals one of the listings,
the claimant qualifies for benefits without any further inquiry. 20 C.F.R. §§
416.920(d), 404.1520(d).
Listing 12.04 covers affective disorders, which are defined as disorders
“[c]haracterized by a disturbance of mood, accompanied by a full or partial manic or
depressive syndrome.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1. A claimant can show the
required level of severity by satisfying either Paragraphs A and B or Paragraph C
alone. Id. Paragraphs A and B state:
A. Medically documented persistence, either continuous or intermittent, of one
of the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities;
b. Appetite disturbance with change in weight;
c. Sleep disturbance;
d. Psychomotor agitation or retardation;
e. Decreased energy;
8

f. Feelings of guilt or worthlessness;
g. Difficulty concentrating or thinking;
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity;
b. Pressure of speech;
c. Flight of ideas;
d. Inflated self-esteem;
e. Decreased need for sleep;
f. Easy distractibility;
g. Involvement in activities that have a high probability of painful
consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods manifested by the
full symptomatic picture of both manic and depressive syndromes (and
currently characterized by either or both syndromes);
AND
B. Resulting in at least two of the following:
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.
The ALJ found that Garrard’s mental impairment was not severe enough to
meet the criteria of Paragraph B. (Tr. 26). This conclusion follows from his findings
that she had: mild restriction in mental functioning; mild difficulties in social
9

functioning; moderate difficulties with regard to concentration, persistence or pace;
and no episodes of decompensation of extended duration. (Tr. 27). The court does not
find any errors in these findings.
Garrard argues that she given evidence to satisfy Paragraphs A and B. (Doc. 12
at 24-25). Regarding Paragraph B, her brief simply makes the conclusory allegation,
“There are marked restrictions of activities of daily living, maintaining of social
functioning, maintaining concentration and episodes of decompressions6 [sic] as
evidenced in the statement of facts.” (Doc. 12 at 25).7 The Regulations define a
“marked” restriction as “more than moderate but less than extreme,” and state that “[a]
marked limitation may arise when several activities or functions are impaired, or even
when only one is impaired, as long as the degree of limitation is such as to interfere
seriously with your ability to function independently, appropriately, effectively, and
on a sustained basis.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00C.
The record does not support Garrard’s argument. As explained in the following
section (VI.A.2), there is no evidence of any episodes of decompensation. There is
substantial evidence that her mental and social functioning did not have marked
restrictions. In her function report, Garrard said that she regularly prepares simple
6

The court assumes her to have meant decompensation, not “decompressions.”

7

This one-sentence conclusory statement is insufficient to put the court on notice of her
factual assertions. Garrard’s “statement of facts” is nineteen pages long. (Doc. 12 at 1-19).
10

meals, does light chores around the house, drives a car, shops at Wal-Mart, handles
all of her own personal care, and helps manages her finances (handling a saving
account, paying bills, etc.). (Tr. 190-192). She also reported regularly attending
church and high school football games (Tr. 193), and, as of November, 2011, she had
been attending college classes. (Tr. 677). She reported that she felt accepted and made
friends in her classes. (Tr. 677). She has more problems in maintaining concentration,
persistence, and pace, but there is no evidence to indicate that they rise to the level of
marked, rather than, as the ALJ found, moderate restrictions. Even if the court were
to find that her problems in maintaining concentration, persistence, and pace rose to
the level of marked restrictions, Paragraph B requires the presence of two results (of
the four listed); therefore, this argument would still fail.
Since there is substantial evidence for the ALJ’s findings that the Paragraph B
criteria were not met, the ALJ committed no errors in these findings.
2.

There Were No Errors In The ALJ’s Finding That The
Paragraph C Criteria Were Not Met

The ALJ also found that Garrard did not meet the Paragraph C criteria. (Tr. 27).
These criteria are:
C. Medically documented history of a chronic affective disorder of at least 2
years' duration that has caused more than a minimal limitation of ability to do
basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following:
11

1. Repeated episodes of decompensation, each of extended duration;
2. A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or change
in the environment would be predicted to cause the individual to
decompensate; or
3. Current history of 1 or more years' inability to function outside a
highly supportive living arrangement, with an indication of continued
need for such an arrangement.
20 C.F.R. § Pt. 404, Subpt. P, App. 1.
Garrard argues that she meets the requirements of Part 1 of Paragraph C, which
requires repeated episodes of decompensation, each of extended duration. (Doc. 12
at 23). As evidence, she points to her “documented history of hospitalizations,” her
doctors’ diagnoses of bipolar disorder and depression, and treatment for bipolar
disorder, anxiety and depression from 2010 to 2012. (Id. at 23-24). However,
Garrard’s cited evidence is insufficient to meet the Paragraph C criteria. “Episodes of
decompensation are exacerbations or temporary increases in symptoms or signs
accompanied by a loss of adaptive functioning, as manifested by difficulties in
performing activities of daily living, maintaining social relationships, or maintaining
concentration, persistence, or pace.” Id. at 12.00C(4). “Repeated episodes of
decompensation, each of extended duration . . . means three episodes within 1 year,
or an average of once every 4 months, each lasting for at least 2 weeks.” Id.
Substantial evidence supports the ALJ’s finding that there were no episodes of
12

decompensation since July 1, 2011, Garrard’s alleged onset date of disability. There
are no records of “exacerbations or temporary increases in symptoms.” Instead, her
treatment records actually tend to suggest that her mental health has been improving
since her alleged onset date. On November 8, 2011, her therapist reported that she
continued to have complaints about her husband’s lack of support, but that she showed
slight improvement. (Tr. 677). Significantly, although the therapist’s Progress Note
form indicates that the therapist should “check all that apply,” her therapist did not
check the box to indicate that Garrard was “at risk for hospitalization/
decompensation.” (Id.). A treatment record from January 11, 2012, reports that
Garrard had made slight improvement, and a February 9, 2012, record states that
Garrard was making progress “with direct assistance.” (Tr. 672, 674).
Therefore, there is substantial evidence for the ALJ’s findings that Garrard did
not meet the Listing for affective disorder under Paragraph C.
B.

The ALJ Committed No Errors In His Use Of Records And
Opinions From Primary Treating Physicians In His RFC Findings

Garrard argues that the ALJ erred by failing to give proper weight to medical
opinions and records from her primary treating physicians in his findings on her RFC.8
The ALJ did not discuss any opinions from treating physicians, and Garrard’s brief
8

The court notes that almost all of the statement of law in this section — three full
paragraphs — is lifted from a Sixth Circuit opinion (Richardson v. Heckler, 750 F.2d 506, 50910 (6th Cir. 1984)) without clear attribution, e.g. quotation marks.
13

does not point to any opinions she thinks should have been given weight by the ALJ.
The court’s review of the record found nothing from a primary treating physician that
can be construed as an opinion within the meaning of the Social Security Regulations,
which define “medical opinions” as “statements . . . that reflect judgments about the
nature and severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. § 404.1527 (emphasis added).
However, there are medical records from Garrard’s treating physicians. Garrard
argues that these records, which cover her treatment for bipolar disorder, depression,
and related mental health issues, establish that she was unable to work. (Doc. 12 at
20-22). Garrard focuses on General Assessment of Functioning (“GAF”) scores given
to her by her physicians. She refers to records from a substance abuse treatment
program, which state that she had a GAF of 65 upon completion of the program on
July 25, 2007, and a GAF of 40 during the prior year. (Tr. 736).9 On August 3, 2007,
Oakland Family Services rated her GAF as 47. (Tr. 562). On June 9, 2010, Northwest
most recent GAF score in the record. Although these GAF scores were assigned
before July 1, 2011, her alleged onset date of disability, Garrard argues that, because
9

These records were not submitted to the ALJ, but they would not have strengthened
Garrard’s case. They indicate that her GAF improved dramatically after being treated for
substance abuse, suggesting that her previous GAF of 40 was heavily influenced by the
substance abuse.
14

she continued to be treated for bipolar disorder, anxiety and depression, there is a
presumption that her “severe condition” continued. (Doc. 12 at 21-22). She then
argues, furthermore, that there is no evidence that her condition or GAF scores have
changed. (Id.).
“[O]nce evidence has been presented which supports a finding that a given
condition exists it is presumed in absence of proof to the contrary that the condition
has remained unchanged.” Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir. 1982),
superseded by statute on other grounds, as stated in Hand v. Heckler, 761 F.2d 1545,
1547 (11th Cir.). According to this rule, Garrard must establish that, before her alleged
onset date, she had a condition that now (either singly or in combination with other
conditions) would prevent her from working. Then, unless there is evidence that the
condition has changed, the court will presume that it has continued into the period of
disability.
Courts in this circuit have noted that a GAF score “is not an assessment of a
claimant's ability to work, but a global reference scale to aid in the treatment of an
ongoing condition.” Davis v. Astrue, No. 6:11-CV-2542-RDP, 2012 WL 4339562, at
*7 (N.D. Ala. Sept. 17, 2012) (citing Anderson v. Astrue, No. 2:08CV917–CSC, 2010
WL 1052845, at *7 n. 5 (M.D.Ala. Mar. 23, 2010)). In an unpublished opinion, the
Eleventh Circuit noted that “the Commissioner has declined to endorse the GAF scale
15

for ‘use in the Social Security and SSI disability programs.’” Wind v. Barnhart, No.
04–16371, 2005 WL 1317040, at *6 n. 5 (11th Cir. June 2, 2005), see also 65
Fed.Reg. 50746, 50764–65 (Aug. 21, 2000). Thus, although GAF scores can be
considered by an ALJ, the mere fact that the claimant had low GAF scores in the past
does not necessitate the conclusion that she was disabled at that time. The ALJ in this
case was not in error for declining to address the scores in his findings.
Furthermore, Garrard could not have been legally disabled in the period
corresponding to her GAF scores because she worked during that time, holding jobs
for several months at a time. (Tr. 159). She was able to work despite having the same
types of mental health issues (depression, anxiety, and bipolar disorder) that form the
basis of her present disability claim, plus, for some of that time, substance abuse
problems. (Tr. 159-167).10 The ALJ found, correctly, that Garrard “has required less
medical treatment and reported fewer complaints since the alleged onset date.” (Tr.
29). Her bipolar disorder and depression, if anything, seem to be more under control
since the alleged onset date than before. She was hospitalized three times for suicide
attempts in 2007 and earlier, but she has not been hospitalized since her alleged onset
date. (Tr. 53). Notes from her three most recent therapy sessions (all postdating her

10

Furthermore, her most recent job, as a customer service representative at Sitel, ended
because of the company’s closure, not because of her conditions. (Tr. 628).
16

alleged onset date) report that she was making “progress” and “improvement.” (Tr.
672, 674, 677).
Therefore, there is substantial evidence to support the ALJ’s findings on
Garrard’s RFC, and her ability to perform past relevant work. (Tr. 27-30).11
VII. CONCLUSION
For the foregoing reasons, the decision of the Commissioner is due to be, and
hereby is, AFFIRMED. A separate final judgment will be entered.
DONE and ORDERED this the 9th day of December, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

11

In her brief, Garrard has referred to evidence that was first submitted to the Appeals
Council; it was not part of the record before the ALJ. (Tr. 686-814) She has not argued that the
Appeals Council was in error for declining to review the ALJ’s ruling. Nonetheless, the court has
reviewed this evidence. None of it is new, material, and chronologically relevant, which would
have required the Council to review the ALJ’s decision. Ingram v. Comm'r of Soc. Sec. Admin.,
496 F.3d 1253, 1261 (11th Cir. 2007) (citing 20 C.F.R. § 404.900(b)). Most of the evidence
predates the alleged onset date, making it chronologically irrelevant. Of the remaining evidence,
only a few records relate to her mental health problems, and these do not reveal any greater
restrictions on her functioning than were found by the ALJ, making them immaterial.
17