Loftin-Taylor v. Astrue

Filing 20

Order entered that the decision of the Commissioner of Social Security, denying Plaintiffs claim for disability insurance benefits and supplemental security income, be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 8/21/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NELLINA L. LOFTIN-TAYLOR,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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CIVIL ACTION 11-00281-B

ORDER
Plaintiff

Nellina

L.

Loftin-Taylor

(“Plaintiff”)

brings

this action seeking judicial review of a final decision of the
Commissioner of Social Security denying her claim for a period
of disability, disability insurance benefits, and supplemental
security income under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401 et seq., and 1381 et seq.

On July 18,

2012, the parties consented to have the undersigned conduct any
and all proceedings in this case. (Doc. 16).

Thus, the action

was referred to the undersigned to conduct all proceedings and
order

the

636(c).

entry

(Doc.

administrative
hereby

ORDERED

AFFIRMED.

of
17).

judgment
Upon

record

and

that

the

the

in

accordance

careful
briefs

decision

with

28

U.S.C.

consideration
of

of

the
the

parties,

of

§

the

it

is

Commissioner

be

I.

Procedural History
Plaintiff protectively filed applications for a period of

disability,

disability

insurance

benefits,

security income on August 27, 2009.
has been disabled since

and

supplemental

Plaintiff alleges that she

May 22, 2008, due to

post-traumatic

stress disorder (PTSD), spinal injury, back pain, depression,
migraines,
sitting

for

Plaintiff’s

dizziness,
a

long

earnings

swelling,
time.
record

(Tr.

and

problems

134-5,

shows

that

standing

141-2,
she

181-5,

has

and
207).

sufficient

quarters of coverage to remain insured through December 31, 2012
(her “date last insured”), and that she is insured through that
date.

(Tr.

134,

251).

Her

applications

were

denied

at

the

initial stage (Tr. 137-40), and she filed a timely Request for
Hearing before an Administrative Law Judge (“ALJ”). (Tr. 146-8).
On April 19, 2010, Administrative Law Judge Katie H. Pierce held
an administrative hearing, which was attended by Plaintiff, her
attorney, and vocational expert Barry Murphy. (Tr. 119-33).

On

April 22, 2010, the ALJ issued an unfavorable decision finding
that Plaintiff is not disabled.

(Id. at 22-41).

Plaintiff’s

request for review was denied by the Appeals Council (“AC”) on
April 28, 2011.

(Id. at 1-6, 16-18).

2

The parties agree that this case is now ripe for judicial
review and is properly before this Court pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3).
II.

Issues on Appeal
A.

Whether the ALJ erred by finding that Plaintiff’s
depression is not a severe impairment?

B.

Whether the ALJ erred by improperly relying on
the opinions of a non-examining state Agency
mental health consultant rather than the opinion
of Plaintiff’s treating physicians?

III. Factual Background
Plaintiff was born on February 12, 1967, and was 43 years
old at the time of the administrative hearing.
181-3).

(Tr. 123, 134,

She earned a Bachelor of Arts degree in psychology, a

Master of Arts degree in counseling, and completed 9 hours in a
PhD program. She has worked in the past as a special education
teacher, track coach, case manager, disability specialist, and
retail manager. (Id. at 123-7).

Plaintiff reported that she

stopped working at her last job as a special education teacher
and track coach because her contract was not renewed.

According

to Plaintiff, it was her intention to return to work if her
contract was renewed. (Id. at 124).
Plaintiff testified that she has pain and swelling in her
lower back and that she receives beneficial treatment from a
chiropractor. (Id. at 128).

Plaintiff also testified that she

receives treatment at the VA Clinic for her headaches, but that
3

the

medication

does

not

help.

She

further

testified

that

sometimes she will go 4 or 5 days without sleeping and then will
go to the emergency room so that they can put her to sleep. (Id.
at 127-9). Plaintiff testified that she lives with her 2 teenage
sons and that she spends most of her time lying down because it
is painful for her to walk or sit up. (Id. at 128-9).
IV.

Analysis
A.

Standard Of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).1

Martin v. Sullivan, 894 F.2d

A court

may not decide the facts

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

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla but

1

This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
4

less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support a conclusion[]”).

In determining whether substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S.

Dist. LEXIS 10163

(S.D. Ala. 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

416.912.
substantial

prove

his

disability.

20

C.F.R.

§

404.1512,

Disability is defined as the “inability to do any
gainful

activity

by

reason

of

any

medically

determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months.”
42 U.S.C. §§ 423(d)(1)(A), 404.1505(a), 416.905(a).

The Social

Security regulations provide a five-step sequential evaluation
process for determining if a claimant has proven her disability.
20 C.F.R. § 404.1520, 416.920.2

2

The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
impairment or combination of impairments. If, at the third step,
the claimant proves that the impairment or combination of
(Continued)
5

In the case sub judice, the ALJ determined that Plaintiff
met

the

non-disability

requirements

benefits through December 31, 2012.

for

disability

insurance

(Tr. 25). The ALJ found

that Plaintiff has not engaged in substantial gainful activity
since

her

alleged

onset

date,

that

she

has

the

severe

impairments of lumbago, cervicalgia, and personality disorder3,
and that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals any of the listings

impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; (4) the claimant=s
age, education and work history. Id. at 1005. Once a claimant
meets this burden, it becomes the Commissioner=s burden to prove
at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
significant
numbers
in
the
national
economy,
given
the
claimant=s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
If the Commissioner can demonstrate that there are such jobs the
claimant can perform, the claimant must prove inability to
perform those jobs in order to be found disabled.
Jones v.
th
Apfel, 190 F.3d 1224, 1228 (11
Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
3

The ALJ determined that Plaintiff’s diagnosed
hypertension was a non-severe impairment. (Id. at 27-8).

6

benign

contained in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulations
No. 4.

(Id. at 27-8).

Relying on the testimony of the vocational expert and other
evidence of record, the ALJ concluded that Plaintiff retains the
residual

functional

capacity

(hereinafter

“RFC”)

to

perform

light work, except that she is limited to work which will only
require occasional stooping, kneeling, crouching, crawling, and
balancing.
climb

The

ALJ

also

ramps/stairs,

found

that

that

Plaintiff

she

can

can

frequently

never

climb

ropes/ladders/scaffolds, that she can occasionally interact with
coworkers, supervisors, and the public, that she cannot perform
any overheard work, and that she can perform simple, routine,
and repetitive tasks. (Id. at 29).
The

ALJ

next

determined

that

Plaintiff’s

medically

determinable impairments could reasonably be expected to cause
the

alleged

intensity,

symptoms

but

persistence

that

and

her

limiting

statements
effects

concerning
of

the

the

alleged

symptoms were not credible to the extent they are inconsistent
with the RFC assessment. (Id. at 30). The ALJ concluded that
Plaintiff’s RFC precludes her from performing any of her past
relevant

work

and

that,

considering

Plaintiff’s

RFC

and

vocational factors, such as age, education and work experience,
she

is

able

to

perform

other

jobs

existing

in

significant

numbers in the national economy, such as mail clerk, non-postal,
7

light bench assembly, and light packer. (Id. at 36). Thus, the
ALJ concluded that Plaintiff is not disabled. (Id. at 36-7).
The

relevant

active duty

evidence

of

record

reflects

that

while

on

in the military, Plaintiff fell down several steps

in 2001. Plaintiff was discharged shortly thereafter and ended
her military career with approximately four months of service.
(Id. at 237, 302, 330, 339, 432, 475, 506).
Plaintiff

was

treated

periodically

in

the

neurology

department at the University of South Alabama from March 17,
2003 through September 24, 2008. (Id. at 327-40). During her
initial visit to USA on March 17, 2003, Plaintiff reported to
Dr. M. Asim Mahmood that she suffered with headaches and neck
and back pain,

which had persisted 2 years. On exam, Plaintiff

appeared in no obvious distress, and she had mild to moderate
range

of

motion

restriction

paraspinal muscle tenderness.

secondary

to

pain

with

mild

Plaintiff’s active straight leg

raise was limited 20-30 degrees bilaterally secondary to pain,
although

when

distracted,

passive

straight

leg

raise

was

negative till 90 degrees bilaterally. Dr. Mahmood diagnosed low
back pain, neck pain, chronic daily headache, and migraine. He
recommended an MRI of Plaintiff’s lumbosacral spine and plain
films of her upper spine to rule out any old potential fracture
that may have not appeared on earlier films. He also recommended
physical therapy for her neck and back, a combination of muscle
8

relaxants

and

NSAIDs

for

pain. (Id. at 339-40).

pain,

and

Gabapentin

for

radicular

The records reflect that subsequent

neurologic exams were unchanged. (Id. at 333-7).
The USA treatment notes dated March 12, 2007 reflect that
Plaintiff continued to report back and neck pain and worsening
headaches.

On

exam,

Plaintiff

had

normal

alignment

and

significant lumbar tenderness in her back. She had full strength
in all 4 extremities, her gait was normal, and a Rhomberg test
was negative. Her diagnosis was chronic tension-type headache,
chronic back pain, chronic neck pain and depressive mood. The
treating physician noted that Plaintiff was depressed and might
even be suffering from PTSD; however, when he offered to refer
her to a psychiatrist or to personally prescribe her an antidepressant,

Plaintiff

denied

depression

and

became

offended.

Plaintiff was referred for pain management. (Id. at 330-2).
Dr.

John

E.

Semon,

at

the

Alabama

Orthopedic

Clinic,

treated Plaintiff for back pain August 19, 2004 through October
5, 2005. (Id. at 298-303). Plaintiff reported that her pain is
aggravated by walking or any activity and that pain medications
and rest give her relief. She also reported that she had not had
any epidural blocks and that no surgery had been recommended.
Dr. Semon observed that Plaintiff’s gait was slow, careful, and
normal. On exam, Plaintiff’s neck was tender generally over the
cervical spine and cervical musculature, bilaterally. There was
9

mild generalized tenderness over the dorsal spine and tenderness
generally

over

the

lumbar

spine.

Range

of

neck

motion

was

limited to 50% of normal by pain, and range of motion for the
lumbar spine was limited to 25% of normal by subjective pain.
Dr. Semon noted that x-rays, AP and lateral, dorsal and lumbar
spine films were within normal limits.

A MRI of the lumbar

spine showed a small bulge at L5/S1, and an MRI of the entire
spine showed small bulges at C4-5 and L5/S1.

Also, a hemangioma

was seen in the dorsal spine area. Dr. Semon diagnosed chronic
cervical strain, chronic dorsal back strain, chronic low back
strain,

and

questionable

depression.

Dr.

Semon

prescribed

Lexapro for depression and encouraged Plaintiff to use a RMS
stimulator on a permanent basis at home. (Id. at 299-302).
The record includes treatment notes from the VA Clinic from
July 26, 2005 to April 2, 2010. (Id. at 94-118, 425-505, 549-64,
582-91).

Plaintiff

received

sporadically in 2008 and 2009.

treatment

for

depression

The notes reflect that Plaintiff

was evaluated by the VA on October 5, 2007 in connection with
her

request

Examination

for
of

an

increase

Plaintiff’s

in

cervical

veteran’s
spine

compensation.

revealed

no

heat,

swelling, or redness, and all motion of the neck caused pain.
Examination of Plaintiff’s lumbar and thoracic spine revealed
pain

resulting

from

any

motion

of

the

neck

or

lower

back.

Plaintiff’s straight leg raise test was negative for radicular
10

pain, and grip strength and gait were normal.
assessed

with

degenerative

cervical

spine,

without

disc

objective

disease

of

findings

Plaintiff was

the
of

lumbar

and

radiculopathy.

Degenerative changes were noted at L2-L3 and L4-L5, as well as a
small disc protrusion at C4-C5, on MRI. (Id. at 432-3).
Plaintiff
Kathleen

was

Rhodes,

seen
at

the

for

depression

VA,

on

by

August

psychologist

29,

2008.

Susan

Plaintiff

reported that she previously taught 6th grade special education
but was not “called back.” She indicated that she did not seek
unemployment because she believed she would be called to return
to

work.

Plaintiff

further

reported

sleeplessness

since

she

started graduate school, nightmares, weight gain, isolation from
her family and friends, and behavior problems with her sons. She
also reported that she walks 2 miles most mornings and that
prior

to

her

back

injury,

she

jogged

and

played

sports.

Plaintiff’s mood was depressed, her affect was congruent, her
concentration and memory were intact, her judgment and insight
were fair, and she denied any current suicidal or homicidal
ideation. Plaintiff was diagnosed with major depressive, single
episode, and a GAF of 50.

(Id. at 479-85).

During a September 18, 2008 visit with the psychologist,
Plaintiff reported that she was trying to find work but was on
the “no hire” list with the State, and that the issues with one
of her sons were ongoing. She also reported that she was dating
11

an older man, who is among the group of older men that she walks
with

each

morning.

Additionally,

involved in her church choir.
50,

and

was

offered

Plaintiff

reported

being

Plaintiff was assigned a GAF of

ongoing

individual

therapy

and

group

therapy. (Id. at 477-8).
Plaintiff sought treatment at the VA on November 5, 2008,
and reported that she fell getting out of the tub. She also
reported that she walked regularly but had not been walking at
all

for

the

past

4

weeks.

Attending

physician

Dr.

Seith

recommended the Plaintiff seek employment as the “best therapy”
for inactivity. (Id. at 464-5).

Plaintiff’s last record of

treatment at the VA is dated April 2, 2010. Plaintiff reported
that she was sleeping better with Ambien and was getting good
pain relief from Toradol. (Id. at 94-6).
The record includes treatment notes from the Emergency Room
at

the

University

of

South

Alabama

where

Plaintiff

received

medical care from February 21, 2009 until April 12, 2010.4 (Id.
at

44-87).

involved

in

On
a

February
motor

21,

vehicle

2009,

Plaintiff

accident.

reported

Several

being

radiological

images were taken of Plaintiff’s spine. CT scans of Plaintiff’s
thoracic and lumbar spine revealed the vertebral body heights,

4

Identical treatment notes are contained in the record on
pages 387-414.

12

alignment of the vertebral bodies, and the intervertebral disc
spaces were well maintained. A CT scan of Plaintiff’s cervical
spine showed a small osseous

density posterior to the C4-C5

intervertebral disc space and a small osseous fragment anterior
to

the

C6-C7

corticated.

intervertebral

Narrowing

of

the

disc

space;

both

intervertebral

appeared

disc

spaces

well
was

observed at C4-C5, C5-C6, and C6-C7. No radiographic evidence of
a

fracture

or

subluxation

within

the

thoracic,

lumbar,

and

cervical spine was seen. Plaintiff’s complaints of headache were
relieved with Tramadol. She was directed to follow up with her
primary care physician. (Id. at 55-73).
On April 12, 2010, Plaintiff reported a migraine headache
lasting

2

days,

left

arm

pain

lasting

2

days,

and

insomnia

lasting 4 days. She also reported that she had fallen multiple
times at home. On exam, she was alert and oriented times 4.
Plaintiff was provided Midrin and Tramadol and reported that her
headache improved. CT scans of Plaintiff’s chest and brain found
no

acute

chest

disease

and

no

acute

intracranial

findings,

respectively. (Id. at 44-52).
Following

an

auto

accident,

Plaintiff

sought

physical

therapy at the Alabama Injury and Pain Clinic, from February 21,

13

2009 through May 1, 2009.5
with

cryotherapy,

Plaintiff was treated 3 days per week

electrical

muscle

stimulation

(EMS),

ultrasound, manual traction, and trigger point therapy and was
educated on at-home stretches. The notes reflect that Plaintiff
had a positive straight leg raise test on March 5, 2009, that
Plaintiff made progress and steadily advanced to recovery, and
that Plaintiff ultimately reached a treatment plateau, with some
residual discomfort, on May 1, 2009. At that time, therapy was
discontinued. (Id. at 341-86).
Plaintiff was treated by Dr. Eddie Pace at Mobile Adult
Care during March 2009 and September 2009 following the abovereferenced automobile accident. (Id. at 415-22, 512-23, 580-1).
On exam, Plaintiff had full range of motion in her neck with
pain present. Right and left sided CVA tenderness to palpation
was also present. Dr. Pace assessed lumbago, cervicalgia, and
benign essential hypertension. (Id. at 421-2). In a follow-up
visit on September 21, 2009, Plaintiff

had full range of motion

with no muscle tenderness or CVA tenderness on palpation. She
had a positive straight leg raise test bilaterally. (Id. at 4168).

5

Identical treatment notes are contained in the record on
pages 565-79.

14

Plaintiff sought treatment at Springhill Medical Center in
September 2009 and March 2010.

On September 22, 2009, Plaintiff

was diagnosed with a urinary tract infection and provided an
antibiotic.

(Id. at 619-20). A few

days later, on September

29, 2009, Plaintiff reported falling backwards in the bathtub,
and

was

diagnosed

fracture.

(Id.

at

Plaintiff

reported

with

musculoskeletal

604-18).
a

During

ground

level

a

strain

March
fall

and
2010

12,

4

occult
visit,

days

prior

and

resulting back pain. She was ambulatory, was given injections of
dexamethasone

and

hydromorphone

and

provided

zofran.

(Id.

at

592-603).
On November 29, 2009, Plaintiff underwent a consultative
examination by Thomas Bennett, PhD (hereinafter “Dr. Bennett”),
at the request of the Agency.

(Id. at 506- 510)

Plaintiff

reported that she was seeking disability on the basis of her
psychological problems rather than her back problems.
also reported that

Plaintiff

she was subjected to physical and sexual

abuses while in the military, that she cries all the time, and
that she does not function well as a result. (Id.)
Dr. Bennett observed that Plaintiff did not appear to have
any difficulty walking through the building or the parking lot
or

getting

handicapped

into

her

parking

vehicle,
space.

although

Plaintiff’s

she

was

mood

parked

was

in

noted

a
as

somewhat dramatically dysphoric, and her affect was blunted. She
15

had no difficulty with serial 7s or with calculations including
multiplication and division. Plaintiff had no obvious difficulty
with concentration and attention, and her immediate recall and
recall of remote events was adequate. Dr. Bennett noted that
Plaintiff showed signs of self-doubt and indecision, that she
demonstrated feelings of worthlessness, helplessness, that she
appeared suspicious and guarded, but not paranoid, and that she
was preoccupied with ways in which she has been victimized.
Dr. Bennett diagnosed rule out depressive disorder, rule
out

malingering,

personality

disorder

with

borderline,

histrionic, and passive-aggressive features, and a GAF score of
50. He opined that Plaintiff “could probably make significant
improvement
motivated

to

in
do

virtually
so

and

every
with

area

of

life

appropriate

if

she

were

intervention.”

He

further opined that Plaintiff “gives a subjective impression of
someone whose primary goal is to get disability benefits.” He
opined

that

Plaintiff’s

ability

to

relate

to

others

is

moderately impaired, her ability to understand and carry out
instructions would be average if she were motivated to do so,
her

ability

to

respond

appropriately

to

supervisors

and

coworkers is moderately impaired but could be improved, and her
ability to respond to work pressures is severely limited but
could be improved with intervention.

(Id. at 506).

that her financial judgment was adequate.
16

He opined

Shortly

thereafter,

Agency

medical

consultant

Janise

Hinson, PhD (hereinafter “Dr. Hinson”), conducted a review of
Plaintiff’s file, and prepared a Psychiatric Review Technique
form dated December 23, 2009. (Id. at 528-41). She diagnosed
Plaintiff

with

affective

disorder

and

personality

disorder,

specifically with borderline histrionic features and rule out
depressive disorder not otherwise specified. Dr. Hinson opined
that Plaintiff is mildly limited in maintaining concentration,
persistence,

and

pace

and

activities

of

daily

living,

is

moderately limited in maintaining social functioning, and that
she does not experience

episodes of decompensation. (Id.)

Dr. Hinson also completed a Mental RFC
2009.

on December 23,

She opined that Plaintiff is moderately limited in the

ability to interact appropriately with the general public, to
accept instructions and respond appropriately to criticism from
supervisors,

to

get

along

with

coworkers

or

peers

without

distracting them or exhibiting behavioral extremes, to maintain
socially appropriate behavior and adhere to basic standards of
neatness

and

cleanliness,

and

to

respond

appropriately

to

changes in the work setting. Dr. Hinson opined that Plaintiff
had no limitations in the remaining 15 categories.

(Id. at 542-

5).
The record also includes a Physical Capacities Evaluation
completed by Dr. Carter Smith, a chiropractor, on May 17, 2010.
17

In the evaluation, Dr. Smith
stand, or walk for no

opined that Plaintiff can sit,

more than 2 hours at one time or no more

than 3 hours total during an 8 hour workday. He further opined
that

Plaintiff

can

continuously

lift/carry

0

to

10

pounds,

frequently 11-20 pounds, occasionally 21-25 pounds, and never
lift/carry more than 26 pounds. Dr. Carter opined that Plaintiff
can use her hands bilaterally for grasping, pushing and pulling,
and

fine

manipulations

but

can

not

use

either

foot

for

repetitive movements as in pushing/pulling leg controls. He also
opined

that

Plaintiff

can

never

bend

or

climb,

she

can

occasionally squat and crawl, and she can frequently reach. He
noted

that

Plaintiff

is

totally

restricted

from

unprotected

heights and mildly restricted from exposure to marked changes in
temperature and exposure to dust, fumes, and gases. Dr. Carter
opined that Plaintiff’s pain is frequently present and found to
be intractable and virtually incapacitating and that medication
side

effects

can

be

expected

to

be

severe

and

limiting

to

Plaintiff’s effectiveness due to distraction, inattention, and
drowsiness. (Id. at 546-47)6.

6

After the ALJ issued her decision, Plaintiff submitted
additional evidence to the Appeals Council.
Included in the
evidence submitted to the Appeals Council is a treatment summary
dated January 21, 2010 from Dr. Carter Smith. (Id. at 88-93). In
the summary, Dr. Smith states that Plaintiff was injured in an
automobile accident in September 2009 which resulted in
sprain/strain injuries of her cervical spine, mid back and
(Continued)
18

1.

Plaintiff

Whether the ALJ erred by finding that
Plaintiff’s
depression
is
not
a
severe impairment?
argues

that

the

ALJ

erred

by

finding

that

Plaintiff’s depression is not a severe impairment. Specifically,
Plaintiff submits that a plaintiff’s burden of proving that an
impairment

is

severe

is

minimal

and

that

she

has

met

this

burden, as evidenced by treatment records from the VA which
reflect that she received treatment for depression from at least
August 2008 until February 2010. Plaintiff further points to the
fact that her primary care provider, Dr. Rhodes, diagnosed her
with major depressive episode and assigned a GAF score of 50.
According to Plaintiff, a GAF score of 50 describes “serious”
symptoms which would render her “unable to keep a job” and that
the testimony of the VE bolsters this claim. In other words,

lumbar spine.
Plaintiff began treatment with Dr. Carter’s
office in October 2009, and
was diagnosed with lumbar
sprain/strain, thoracic sprain/strain, cervical sprain/strain,
and myospasms.
Her treatment has included cryotherapy, soft
tissue
massage, trigger point, traction, and electro muscle
stimulation.
According to Dr. Smith, on final examination,
Plaintiff reported that her pain had improved, although she
continued to be aggravated by sitting, standing, and bending.
Dr. Carter opined that Plaintiff’s prognosis for relief of neck
pain, mid back, and low back pain was poor, that treatment
yielded slower recovery results than expected, and that
Plaintiff’s “disability” may increase with age, and that she
will require periodic treatment as relapses, exacerbations, and
degenerations occur. (Id. at 88-93).

19

Plaintiff asserts that a GAF score of 50 is enough to find that
her depression is “severe.”

Defendant responds that the ALJ did

not err.
Based upon a careful review of the record, the undersigned
finds that notwithstanding the fact that the ALJ did not include
Plaintiff’s

depression

as

a

severe

impairment,

the

record

demonstrates that the ALJ carefully considered all the relevant
evidence,

including

that

relating

to

depression,

through

all

five steps of the sequential inquiry; thus, the error at step
two is harmless and not cause for reversal. Delia v. Comm’r of
Soc.

Sec.,

433

Fed.

Appx.

885

(llth

Cir.

2011)(although

substantial evidence does not support the ALJ’s finding at step
two, that claimant’s mental impairments were not severe, error
was harmless because the ALJ deemed other impairments severe and
therefore

continued

the

sequential

inquiry,

and

considered

consequences of mental impairments at steps three, four and five
of the inquiry)(citing Reeves v. Heckler, 734 F. 2d 519, 524
(llth Cir. 1984)(rejecting a challenge to an ALJ’s conclusion as
harmless error when the ALJ had considered the relevant evidence
in making the disability determination.))
As noted supra, at step two of the five-step evaluation
process prescribed by the regulations, the ALJ is called upon to
determine whether a claimant’s impairments are severe. 20 C.F.R.
§§

404.1520,

416.920.

The

burden
20

at

this

step

is

on

the

claimant. Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir. 1986).
A

“[c]laimant

need

show

only

that

her

impairment

is

not

so

slight and its effect not so minimal.” McDaniel v. Bowen, 800
F.2d 1026, 1031 (11th Cir. 1986). This inquiry is a “threshold”
inquiry.

It

allows

only

claims

based

on

the

slightest

abnormality to be rejected. Brady v. Heckler, 724 F.2d 914, 920
(11th Cir. 1984).
Here, consistent with the regulations and applicable law,
at

step

two,

the

ALJ

found

that

Plaintiff

has

the

severe

impairments of lumbago, cervicalgia and personality disorder.
Because the ALJ found severe impairments, she did not end her
analysis at step two, but proceeded forward with the sequential
evaluation, and considered the effects of all of Plaintiff’s
impairments, including those from her mental impairment. Indeed,
the

ALJ

discussed

personality

Plaintiff’s

disorder,

and

treatment

expressly

for

found,

depression

and

based

the

on

evidence, that Plaintiff has mild restrictions in daily living,
concentration, persistence and pace, and moderate restrictions
in her social functioning.

Further, in establishing Plaintiff’s

RFC, the ALJ took in account functional limitations arising from
Plaintiff’s
occasionally

mental

impairments,

interact

with

and

found

co-workers,

that

Plaintiff

supervisors

and

can
the

public, and that she is limited to the performance of simple,
routine and repetitive tasks.

Thus, the ALJ’s error in not
21

including depression as a severe impairment at step two was not
fatal because the ALJ

considered all of the evidence relating

to Plaintiff’s mental impairment at every step of the analysis,
and

her

conclusions

regarding

functional

limitations

arising

from Plaintiff’s mental impairment are supported by substantial
evidence.
2.

In

her

Whether the ALJ erred by improperly relying
on the opinions of a non-examining state
Agency psychologist regarding the impact
of Plaintiff’s mental impairment over the
opinions of Plaintiff’s treating
physicians?
brief,

Plaintiff

argues

that

the

ALJ

erred

by

assigning significant weight to the opinions of non-examining
State Agency psychologist Dr. Hinson regarding the impact of
Plaintiff’s mental impairment over the opinions of Plaintiff’s
treating physicians. The Commissioner responds that Dr. Hinson
is an acceptable medical source; thus, the ALJ could properly
consider Dr. Hinson’s opinions. The Commissioner further argues
that Dr. Hinson’s opinions regarding the impact of Plaintiff’s
mental

impairments

psychologist

Dr.

are

Bennett

consistent
who

with

evaluated

the

opinions

Plaintiff

and

of

whose

opinions the ALJ discussed in her decision.
Social Security Ruling 96-2p, 1996 SSR LEXIS 9, sets forth
certain rules for determining what weight to give the opinions
of treating physicians and directs an ALJ to explain the weight

22

given

to

the

treating

physicians’

opinions.

Consistent

therewith, Eleventh Circuit case law provides that “[t]he ALJ
must

generally

give

the

opinion

of

a

treating

physician

‘substantial or considerable weight’ absent a showing of good
cause not to do so.” Newton v. Astrue, 297 Fed. Appx. 880, 883
(11th Cir. 2008). See also Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997) (a treating physician’s opinion must be
given

substantial

contrary).

The

weight

Eleventh

unless

good

Circuit

has

cause

is

shown

concluded

“good

to

the

cause”

exists when a treating physician’s opinion is not bolstered by
the evidence, is contrary to the evidence, or when the treating
physician’s opinion is inconsistent with his or her own medical
records. Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir.
2004).
If an ALJ elects to disregard the medical opinion of a
treating physician, then he or she must clearly articulate the
reasons for so doing. Id. The ALJ may also devalue the opinion
of a treating physician where the opinion is contradicted by
objective medical evidence. Ellison v. Barnhart, 355 F.3d 1272,
1275-76

(11th

Cir.

2003)

(per

curiam)

(citing

Oldham

v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (holding that
“the ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion”) (citation omitted));
Kennedy v. Astrue, 2010 U.S. Dist. LEXIS 39492, *22-23 (S.D.
23

Ala. Apr. 21, 2010) (“[I]t is the ALJ’s duty, as finder of fact,
to choose between conflicting evidence[,] and he may reject the
opinion

of any physician when the evidence supports a finding

to the contrary.”).
Based upon a careful review of the record, the undersigned
finds

that

substantial

evidence

supports

the

ALJ’s

decision

regarding Plaintiff’s mental impairments, and that she did not
err

in

according

Hinson.

As

significant

an

initial

weight

matter,

the

to

the

opinions

undersigned

of

notes

Dr.
that

Plaintiff does not identify the opinions of which particular
treating

physician

greater weight.

she

contends

should

have

been

accorded

Plaintiff refers to her treating physicians at

the VA, but points to no physician’s assessment which attributed
any functional limitation resulting from her physical or mental
impairments, or which opined that Plaintiff’s mental impairment
resulted in marked limitations in her ability to function.
Further, as noted supra, Dr. Hinson completed the Mental
RFC after reviewing Plaintiff’s medical records.

Dr. Hinson

concluded

maintaining

that

Plaintiff

is

mildly

limited

in

concentration, persistence and pace, and is moderately limited
in

the

public,

ability
to

to

accept

interact

appropriately

instructions,

and

respond

with

the

general

appropriately

to

criticism fro supervisors, to get along with coworkers or peers
without distracting them or exhibiting behavioral extremes, to
24

maintain

socially

standards

of

appropriate

neatness

behavior

and

and

adhere

cleanliness,

and

to

to

basic
respond

appropriately to changes in the work setting. (Id. at 542-5).
Dr.

Hinson’s

Plaintiff

Mental

underwent

a

RFC

was

consultative

prepared
mental

shortly

evaluation

after
by

Dr.

Bennett, who diagnosed Plaintiff with depressive disorder, rule
out

malingering,

personality

disorder

histrionic, and passive-aggressive features.
assigned

Plaintiff

a

GAF

of

50,

he

with

borderline,

While Dr. Bennett

found

that

her

social

judgment and judgment for how to behave in the work situation,
and

respond

impaired.

to

co-workers

Additionally,

and

he

supervisors

opined

that

is

while

moderately
Plaintiff’s

ability to respond to work pressures is severely limited, he
felt that she “could probably make significant improvement in
virtually every area of her life if she were motivated to do so
and

with

Plaintiff
primary

appropriate
“gives

goal

is

a
to

intervention.”

subjective
get

He

impression

disability

also
of

benefits.”

noted

that

someone

whose

(Id.

506).

at

Additionally, treatment notes from the VA reflect that while
Plaintiff complained of depression, sleeplessness and isolation
from family and friends, she also reported that she walks almost
two miles most morning, that she was dating an older guy in her
walking group, and that she was involved in her church choir.
Indeed,

in

November

2008,

attending
25

physician

Dr.

Seith

recommended that Plaintiff seek employment as the “best therapy”
for inactivity.

(Id. at 464-5).

In this case, it is clear from the ALJ’s thorough opinion
that she considered all of the evidence of record, including
that of Plaintiff’s physicians at the VA Clinic, Dr. Bennett and
Dr. Hinson, in establishing Plaintiff’s RFC. Plaintiff does not
point to any mental limitation resulting identified by any of
her

treating

opinions

or

physicians
that

does

that

is

not

at

odds

comport

with

with

Dr.

the

Hinson’s

ALJ’s

RFC

determination. Accordingly, the undersigned finds that the ALJ
properly

assigned

opinions

of

evidentiary

medical

weight

consultants

Dr.

to

the

Bennett

and

findings
Dr.

and

Hinson,

considered Plaintiff’s medical condition as a whole, including
her mental impairment and the other evidence of record, and that
substantial

record

evidence

supports

the

ALJ’s

finding

that

Plaintiff is not disabled.
V.

Conclusion

For the reasons set forth, and upon careful consideration
of the administrative record and memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner of Social
Security,

denying

Plaintiff’s

claim

for

disability

benefits and supplemental security income, be AFFIRMED.
DONE this 21st day of August 2012.

26

insurance

/s/ SONJA F. BIVINS_ ___
UNITED STATES MAGISTRATE JUDGE

27