Perkins v. Astrue

Filing 22

Order entered that the decision of the Commissioner of Social Security, denying Plaintiffs claim for a period of disability, disability insurance benefits and supplemental security income, be REVERSED and REMANDED.. Signed by Magistrate Judge Sonja F. Bivins on 9/27/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
GLORIA ANN PERKINS,

*
*
Plaintiff,
*
*
vs.
*
*
MICHAEL J. ASTRUE,
*
Commissioner of Social Security,*
*
Defendant.
*

CIVIL ACTION 11-00293-B

ORDER
Plaintiff

Gloria

Ann

Perkins

(“Plaintiff”

or

“Perkins”)

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 April 4, 2012, the parties consented to have the undersigned
conduct any and all proceedings in this case, and waived oral
argument. (Docs. 17, 18).

Thus, the action was referred to the

undersigned to conduct all proceedings and order the entry of
judgment in accordance with 28 U.S.C. § 636 (c). (Doc. 20). Upon
careful consideration of the administrative record and memoranda
of the parties, the decision of the Commissioner is REVERSED and
REMANDED.

I.

Procedural History
Plaintiff

income

protectively

benefits

and

filed

supplemental

February 4, 2008. (Tr. 128-35).

applications
security

for

income

disability
benefits

on

In her applications, Plaintiff

alleges disability since January 18, 2008

due to high blood

pressure, a blood clot in the left leg, arthritis, and “severe
pain in body.”

(Id. at 143, 148).

Plaintiff’s applications

were denied initially (Id. at 74-78), and she timely filed a
Request

for

Hearing

Administrative

Law

(Id.
Judge

at

79).

Geoffrey

On

Casher

September

28,

(hereinafter

2009,
“ALJ”)

held an administrative hearing, which was attended by Plaintiff,
her attorney, and a vocational expert (“VE”).

(Tr. 39-69).

On

December 7, 2009, the ALJ issued an unfavorable decision wherein
he determined that Plaintiff is not disabled.

(Tr.

19-35).

Plaintiff’s request for review was denied by the Appeals Council
(“AC”) on May 2, 2011.

(Id. at 1-6).

The ALJ’s decision became

the final decision of the Commissioner in accordance with 20
C.F.R. § 404.981.

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 Appeal1
A.

Whether substantial evidence supports the ALJ’s
RFC assessment.

B.

Whether the ALJ erred in failing to develop the record
by
not
ordering
a
psychological
consultative
examination.

III. Background
Plaintiff was born on July 24, 1975, and was 34 years old
at the time of the administrative hearing.

(Tr. 70, 85, 119).

Plaintiff testified that she left school in the ninth grade due
to pregnancy.

(Id. at 44).

Plaintiff has past relevant work

(“PRW”) as a presser, laundry worker, and gas station attendant.
(Id. at 44-46, 149).

Plaintiff testified that she has constant

pain in her lower back for which she takes pain medications and
steroids,

pain

diabetes,

a

medication,

in

both

her

blood

clot

in

high

blood

legs,
her

possibly

leg

pressure,

that

as

was

recurrent

a

result

of

resolved

with

headaches,

and

depression. (Id. at 46-51).
With respect to her daily activities, Plaintiff testified
that

she

lives

with

her

father

1

and

her

three

children.

While Plaintiff argues that the ALJ erred because he did
not consider the effect of her obesity on her impairments, she
has not developed this argument, or set forth any facts in
support of her assertion.
Accordingly, this issue is deemed
abandoned and is denied as a result. See Flanigan’s Enters.,
Inc. v. Fulton County, Ga., 242 F. 3d 976, 987 n.16 (llth Cir.
2001)(party waives issue not developed in its briefs.)
3

According to Plaintiff, her two oldest children perform all the
household
grocery
“fast.”
not

chores,

shopping,

including
and

she

laundry.

cooks

Her

food

that

father
can

does

be

the

prepared

Plaintiff reported that she attends church, but does

attend

her

children’s

school

activities.

Additionally,

Plaintiff testified that she reads, does puzzles, watches some
t.v., and assists her children with their school work. (Id. at
52-55).
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).2

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.
2

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

Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla but
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, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits must prove his disability.
416.912.
substantial

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

5

process for determining if a claimant has proven her disability.3
20 C.F.R. §§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
met the insured status requirements of the Social Security Act
through

December

31,

2011,

and

that

she

has

not

engaged

in

substantial gainful activity since her alleged onset date. (Tr.
22, 24).

The ALJ concluded that while Plaintiff has the severe

impairments

of

major

depressive

3

disorder

with

psychotic

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
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)).
6

features, neuropathy, chronic back pain, and obesity, they do
not

meet

or

impairments

medically

listed

Regulations No. 4.

in

equal
20

the

C.F.R.

(Tr. 24).

criteria

Pt.

404,

for

any

Subpt.

of

the

P,

App.

1,

The ALJ concluded that Plaintiff

retains the residual functional capacity (hereinafter “RFC”) to
perform light work.

According to the ALJ, Plaintiff can lift

and/or carry up to twenty pounds occasionally and up to ten
pounds frequently and can stand and/or walk about six hours in
an eight-hour workday but requires a sit/stand option at will.
The ALJ further determined that Plaintiff can frequently use her
bilateral lower extremity for the performance of pushing and/or
pulling movements, but that she is limited to occasional use of
her

bilateral

feet

for

foot

pedals.

Additionally,

the

ALJ

determined that Plaintiff can frequently climb, bend, balance,
stoop, kneel, crouch, or crawl and can frequently climb ramps
and/or stairs, but that she can never climb ladders, ropes or
scaffolds.

He also found that Plaintiff is prohibited from work

involving exposure to extreme heat and/or cold, vibration, and
noise,

as

well

work

involving

unprotected

heights,

dangerous

machinery, or uneven surfaces. The ALJ also limited Plaintiff to
simple,

routine

instructions

and

tasks
simple

involving

no

work-related

7

more

than

decisions

simple,
with

few

short
work

place changes. The ALJ also found that Plaintiff is unable to
work at a production pace.

(Id. at 25-26).

The ALJ utilized the services of a vocational expert and
determined that Plaintiff is unable to perform her PRW as a
presser or laborer but that she is capable of performing her PRW
as a gas station clerk. (Id. at 30). The ALJ further found that
considering Plaintiff’s age, education, work experience and RFC,
there are jobs that exist in significant numbers in the national
economy

that

Plaintiff

can

perform,

including

cloth

folder,

marker, and checker. Thus, he concluded that Plaintiff is not
disabled.

(Id. at 30-31).

The relevant evidence4 of record includes notes from Bryan
Whitfield Memorial Hospital dated May 6, 2007. On that date,
Plaintiff presented to the emergency department with complaints
of moderate side and back pain and dizziness. On physical exam,
Plaintiff

appeared

normal

and

stable,

but

in

mild

distress.

Examination of her back revealed tender paraspinal muscles and
muscle

spasm.

strain

and

Plaintiff

was

was

discharged

diagnosed
in

fair,

4

with
stable

acute

lumbosacral

condition.

At

While the undersigned has examined all of the medical
evidence contained in the record, including that which was
generated before Plaintiff’s alleged onset date of January 18,
2008, only that evidence which is relevant to the issues before
the Court is included in the summary.
8

discharge, she was provided nine Toradol5 pills and advised to
ice her back, not to lift or strain, and to take Motrin or Aleve
for pain. (Id. at 196-204).
The record also includes a physical therapy evaluation from
Bryan Whitfield Memorial Hospital dated October 2007.

Plaintiff

received physical therapy on at least October 9, October 10, and
October 11, 2007 for treatment of mid back pain. (Id. at 184).
The therapy consisted of 15 minutes of electric stimulation, 20
minutes

of

therapeutic

exercise,

and

15

minutes

of

hot/cold

application. (Id. at 185-88).
The
treated

by

record
Dr.

also

Judy

reflects

Cooke

that

Travis

Plaintiff

from

January

was

routinely

1998

through

January 2008. (Tr. 216-232). During March, May and October 2007
visits, Plaintiff reported a number of ailments including back
pain, dizziness, and lower abdominal pain. She was prescribed
Cephadyn6 and doxycycline hyclate.7 (Id. at 218-221). On January

5

Toradol is a nonsteroidal anti-inflammatory drug (NSAIDs)
that works by reducing hormones that cause inflammation and pain
in the body. It is used short-term (5 days or less) to treat
moderate to severe pain. See http://www.drugs.com/toradol.html
(last visited Jan. 20, 2012).
6

Cephadyn is the combination of acetaminophen (pain
reliever and fever reducer) and butalbital (a barbiturate that
relaxes muscle contractions) and is used to treat tension
headaches.
See http://www.drugs.com/mtm/cephadyn.html (last
visited Jan. 20, 2012).
9

24, 2008, Plaintiff reported low back pain that comes and goes,
and that her pain medication was not helping much. (Id. at 217).
Plaintiff

was

treated

at

Whatley

Health

Services

during

March and April 2008 for back pain, shoulder pain and a tingling
sensation in her legs. On examination, mild tenderness in the
lumbar region was observed, and Plaintiff was prescribed Lortab8.
(Id. at 235-236).
On March 27, 2008, Huey Kidd, D.O. (hereinafter “Dr. Kidd”)
conducted a consultative examination at the Agency’s request.
(Id. at 237-39). On examination, Dr. Kidd noted Plaintiff was
obese, alert, pleasant, and interactive. He noted that she had
full range of motion and 5/5 strength of her upper and lowers
extremities. Plaintiff was able to heel walk, toe walk, squat,
and stand. Dr. Kidd noted Plaintiff could bend and touch her
toes but that doing so took a lot of effort for her. Plaintiff
ambulated without difficulty, and her straight leg raises were
negative. Testing of Plaintiff’s deep tendon reflexes was 2/4
throughout.

In

addition

to

a

physical

examination,

Dr.

Kidd

7

Doxycycline Hyclate is a tetracycline antibiotic used to
treat
certain
bacterial
infections.
See
http://www.drugs
.com/cdi/doxycycline-hyclate.html (last visited Jan. 20, 2012).
8

Lortab is a narcotic pain reliever used to relieve
moderate to severe pain. See http://www.drugs.com/lortab. html
(last visited Jan. 24, 2012).
10

reviewed an x-ray of Plaintiff’s lumber spine and noted that it
was normal. The x-ray showed a normal curvature of the lumbar
spine and that the disc spaces were well preserved. Dr. Kidd
assessed Plaintiff with low back pain. (Id. at 238).
The record reflects that Plaintiff was treated by Maurice
J.

Fitz-Gerald,

M.D.

(hereinafter

“Dr.

Fitz-Gerald”)

from

September 2008 through July 2009 for headaches and abdominal
pain.

(Id.

at

258-316).

During

a

September

10,

2008

visit,

Plaintiff reported migraines, chest pain, back pain, and pain in
her right arm and leg. On examination, Plaintiff’s extremities
were symmetrical with good range of motion, she had no pedal
edema, and she had a stable gait. Dr. Fitz-Gerald impression was
depression
otherwise

and

possible

kidney

non-contributory.”

infection.
(Id.

at

“Review

301).

of

systems

Plaintiff

was

prescribed Garamycin IM9 and Cipro10, and given Imitrex11, and
directed to return in two weeks. (Id. at 300-02).
9

Garamycin is an antibiotic used to treat severe or serious
bacterial
infections.
See
http://www.drugs.com/mtm/
garamycin.html (last visited Jan. 24, 2012).
10

Ciprofloxacin (“Cipro”) is used to treat or prevent
certain infections caused by bacteria.
See http://www.ncbi
.nlm.nih.gov/pubmedhealth/PMH0000878/ (last visited Jan. 24,
2012).
11

Imitrex is used to treat migraine headaches by narrowing
blood
vessels
around
the
brain.
See
http://www.
drugs.com/imitrex.html (last visited Jan. 24, 2012).
11

A CT of Plaintiff’s head, taken on September 11, 2008, was
negative.

No

intraparenchymal

hemorrhage,

visualized

effect, or midline shift were reflected on the CT.
the ventricles and cisterns were normal.

mass

In addition,

The visualized sinuses

were clear, and no acute bony abnormalities were present. (Id.
at 331-35).
During an October 6, 2008 examination of Plaintiff, Dr.
Fitz-Gerald

noted

a

marked

paravertebral

muscles

spasm

and

tenderness over L4 and L5, and that Plaintiff’s extremities were
symmetrical

with

good

range

of

motion.

Dr.

Fitz-Gerald

prescribed Lortab, Soma12, and a burst of steroids, and referred
Plaintiff for a CT scan of her back. (Id. at 293-94). A CT scan
of Plaintiff’s lumbar spine was performed on October 9, 2008,
and revealed a “[m]ild diffuse disc bulge at L5-S1”.

The scan

was “[n]egative for fracture, dislocation or anterior listhesis”
and “[n]o significant disc space narrowing” was noted. (Id. at
336-41).
During

a

January

20,

2009

visit,

Plaintiff

reported

a

migraine headache that was “worse than normal.” Dr. Fitz-Gerald
12

Soma is a muscle relaxant, is used with rest, physical
therapy, and other measures to relax muscles and relieve pain
and discomfort caused by strains, sprains, and other muscle
injuries.
See
http://www.ncbi.nlm.nih.gov/pubmedhealth/
PMH0000717/ (last visited Jan. 24, 2012).
12

diagnosed

uncontrolled

migraines

and

depression

and

referred

Plaintiff for a second CT scan. (Id. at 279-80). Like the first
head

CT

negative

scan,
and

the
no

second

CT

scan

intraparenchymal

on

January

hemorrhage,

21,

2009

visualized

was
mass

effect or midline shift were found. The ventricles and cisterns
were normal, the visualized sinuses were clear, and no acute
bony abnormalities were present.

(Id. at 326-30).

The treatment notes reflect that Plaintiff was treated by
Dr.

Fitz-Gerald

in

March

2009

for

pain

on

her

right

side,

coughing, and pain in the back of her legs. A chest x-ray showed
increased

bronchovesicular

markings,

and

a

CBC

test

showed

evidence of infection. Plaintiff was diagnosed with pharyngitis
and

pneumonitis,

depression

and

vascular

headaches

and

was

prescribed Rocephin, Toradol, Keflex, Lortab and Darvocet.(Id.
at 274-75).
During a May 14, 2009 visit, Dr. Fitz-Gerald noted that
Plaintiff had good range of motion in her extremities, a stable
gait and no pedal edema.
a

little

schizophrenic

He also noted that Plaintiff was “also
and

she

is

on

Seroquel.”13

She

was

advised to continue her same treatment program. (Id. at 268-70).
13

Seroquel is used to treat schizophrenia and bipolar
disorder (manic depression) in adults and children who are at
least 10 years old. See http://www.drugs.com/seroquel.html.
(Last visited Jan. 24, 2012).
13

The May 26, 2009 treatment notes reflect that Plaintiff had
broken out in a rash and had migraines.
a

short

burst

of

Decadron15 shot.

steroids,

Plaintiff was placed on

Periactin14,

(Id. at 267).

and

given

an

8mg

The June 16, 2007 treatment

notes reflect that Plaintiff had a rash on her leg that was very
tender.

Dr. Fitz-Gerald attributed it to a drug reaction, and

discontinued
prednisone.
17,

2009,

tenderness.

all

of

her

(Id. at 263).
Dr.

Fitz-Gerald

Extremities

medications

except

periactin

and

In the treatment notes dated July
noted

as

symmetrical

follows:

with

good

“No

masses

ROM.

.

.

or

Gait

stable. . . She has had an MRI of her back with some bulging
discs but not much.

I think this is a neuropathy.”

(Id. at

14

Periactin relieves red, irritated, itchy, watery eyes;
sneezing; and runny nose caused by allergies, irritants in the
air,
and
hay
fever.
See
http://www.ncbi.nlm.nih.gov/
pubmedhealth/PMH0000705/ (last visited Jan. 24, 2012).
15

Decadron is a corticosteroid, similar to a natural
hormone produced by the adrenal glands. It relieves inflammation
(swelling, heat, redness, and pain) and is used to treat certain
forms of arthritis; skin, blood, kidney, eye, thyroid, and
intestinal disorders (e.g., colitis); severe allergies; and
asthma. See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000773/
(last visited Jan. 24, 2012).
14

Plaintiff was prescribed Darvocet,16 Lortab, Lisinopril,

259).

and Lyrica.17

(Id. at 258-59).

The

includes

record

treatment

notes

Mental Health Center. (Id. at 241-57).

from

West

Alabama

Notes dated January 20,

2009 reflect that Plaintiff was treated in late 2008 and was
prescribed Seroquel after reporting hallucinations. According to
the notes, Plaintiff’s hallucinations ended after beginning the
medication therapy. (Id. at 256-7). Plaintiff was diagnosed with
recurrent

major

features. (Id.)

depressive

disorder,

severe

with

psychotic

Plaintiff was treated again on January 28,

2009.

On exam, her affect was normal.

four.

She was calm, and her sleep and appetite were noted as

good.

Treatment

notes

indicate

She was oriented times

Plaintiff

was

doing

better

despite the death of her grandmother. Plaintiff reported she
works on puzzles for relaxation, and the therapist opined that
Plaintiff “appears to be managing well.”

(Id. at 249).

16

Darvocet is used to relieve mild to moderate pain with or
without fever. See http://www.drugs.com/darvocet.html (last
visited Jan. 24, 2012).
17

Lyrica is used to relieve neuropathic pain (pain from
damaged nerves) that can occur in the arms, hands, fingers,
legs, feet, or toes of a person who has diabetes or in the area
of a rash if a person has had shingles.
See http://
www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000327/ (last visited Jan.
24, 2012).
15

During

a

February

25,

2009

visit,

Plaintiff

denied

hallucinations and reported that her sleep and appetite were
good.

The

therapist

medication

and

that

noted
she

Plaintiff
denied

was

any

compliant

side

with

effects.

In

her
an

individual session, plaintiff was conversational and friendly.
She was directed to return in one month. (Id. at 248).
Plaintiff reported, in a visit on April 2, 2009, that she
was experiencing high levels of stress involving her children.
She

further

reported

trouble

sleeping

and

difficulty

keeping

food down. (Id. at 247). On her next therapy visit on May 5,
2009,

Plaintiff

reported

continued

stress

stemming

from

her

children. She indicated however that she was “doing well” and
that

her

sleep

and

appetite

were

good.

She

was

directed

to

continue with relaxation activities. (Id. at 246).
During her June 3, 2009 visit, Plaintiff reported that she
was

doing

well

and

that

her

sleep

and

appetite

were

good.

According to the treatment notes, Plaintiff’s affect was normal,
she “appear[ed] stable”, her thinking was organized, and she
“denie[d]

any

significant

problems.”

(Id.

at

245).

In

a

treatment plan dated June 9, 2009, Plaintiff’s GAF score was
listed as 50. Her diagnoses were major depressive disorder D/O,
severe with psychotic features. The Treatment Plan reflects that
it

was

designed

to

address
16

Plaintiff’s

depression,

hallucinations,

anxiety,

and

suspiciousness.

Plaintiff

was

directed to attend individual counseling and to engage in stress
management,
monthly.

She

symptom/illness
was

directed

management,
to

have

and

medication

coping

skills

monitoring

and

physician assessment/treatment once quarterly. (Id. at 241-42).
During a therapy session on July 14, 2009, Plaintiff had a
normal affect, and reported her sleep and appetite were fair.
She relayed to the therapist that she was having higher stress
and higher anger but did not know why. She also indicated that
she was having issues with her boyfriend, that she was managing
her stress adequately, and overall, she was doing okay.

(Id. at

244). During her August 12, 2009 treatment session, Plaintiff
reported

progress

and

improvement.

According

to

Plaintiff,

Vistaril18 helped her have less anxiety and temper outbursts.
(Id. at 243).

18

Vistaril is used to relieve the itching caused by
allergies and to control the nausea and vomiting caused by
various conditions, including motion sickness. It is also used
for anxiety and to treat the symptoms of alcohol withdrawal.
See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000796/ (last
visited Jan. 24, 2012).
17

Whether the ALJ erred in failing to develop the record
by
not
ordering
a
psychological
consultative
19
examination.
Plaintiff argues that the ALJ erred in failing to develop a
full

and

fair

record

with

According to Plaintiff,

regard

to

her

although the ALJ

mental

impairment.

found that she has

major depressive disorder with psychotic feature and found it to
be

severe,

he

erred

in

failing

to

order

a

psychological

consultative examination in order to evaluate any limitations
stemming from Plaintiff’s mental impairment for inclusion in his
RFC determination. (Doc. 14 at 8-9).

The Commissioner counters

that it is Plaintiff’s burden to prove that she is disabled and
to introduce evidence to support her application.

According to

the Commissioner, the ALJ need develop the record only if the
record shows evidentiary gaps that result in unfairness or clear
prejudice, and no such gaps are reflected here. The Commissioner
also asserts that nothing in the record suggests Plaintiff’s

19

Because the Court determines that the decision of the
Commissioner should be reversed and remanded for further
proceedings based on the Plaintiff’s second claim, there is no
need for the Court to address Plaintiff’s first claim.
See
Robinson v. Massanari, 176 F. Supp. 2d 1278, 1280 and n.2 (S.D.
Ala. 2001); cf., Pendley v. Heckler, 767 F. 2d 1561, 1563 (llth
Cir. 1985)(“Because the ‘misuse of the expert testimony alone
warrants reversal’ we do not consider the appellant’s other
claims.”) (citations omitted).
18

mental limitations were any greater than those found by the ALJ
(Doc. 15 at 14-15).
An administrative hearing before an ALJ is not adversarial
in nature. Thus, it is well-established that “the ALJ has a
basic

duty

to

develop

a

full

and

fair

record.”

Ellison

v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam).
This duty to develop the record exists even when the claimant is
represented by counsel. Brown v. Shalala, 44 F.3d 931, 934 (11th
Cir. 1995). In fulfilling the duty to conduct a full and fair
inquiry,

the

ALJ

is

not

required

to

order

a

consultative

examination unless the record establishes that such is necessary
to enable the ALJ to render a decision. Holladay v. Bowen, 848
F.2d 1206, 1210 (llth Cir. 1988) (the ALJ is not required to
order a consultative examination and has discretion to order
such an exam only when necessary); see also Good v. Astrue, 240
Fed. Appx. 399, 404 (llth Cir. 2007)(rejecting claim that ALJ
reversibly erred in failing to order an additional consultative
examination because no physician had recommended an additional
consultation

and

permit

ALJ’s

the

the

record

RFC

contained

determination).

sufficient
While

evidence
the

ALJ

to
is

responsible for making every reasonable effort to obtain from
the claimant’s treating physician(s) all the medical evidence
necessary to make a determination as to disability, it is the
19

claimant’s

burden

to

prove

he

is

disabled

and

to

produce

evidence in support of her claim. See Ellison, 355 F. 3d at
1276; 20 C.F.R. § 416.912(a) and (c).20

See also Hale v. Bowen,

831 F.2d 1007, 1011 (11th Cir. 1987).
In McCall v. Bowen, 846 F.2d 1317, 1320 (llth Cir. 1988),
the Eleventh Circuit held that a plaintiff’s testimony regarding
problems

with

physicians’

her

memory

suggestions

that

and
she

nerves,
might

and

her

treating

have

psychological

problems might well be enough to require the appointment of a
psychiatrist or psychologist under the requirements of § 421(h).
The court found that since the case was being remanded on other
grounds, the applicability of § 421 should also be considered on
remand.
Later, in Sneed v. Barnhart, 214 Fed. Appx. 883 (llth Cir.
2006), a panel of the Eleventh Circuit observed as follows:
20

The regulations provide circumstances under which an ALJ will
usually order a consultative evaluation: when additional
evidence is needed and is not included in the medical record;
when evidence from a treating source cannot be obtained; when
there exists conflict, inconsistency, ambiguity or insufficiency
in the evidence that cannot be resolved by recontacting a
treating source; when there is an indication that Plaintiff’s
condition has changed in a way that will likely affect
Plaintiff’s ability to work, but such change is not reflected in
the record, and when necessary to secure highly technical or
specialized medical evidence that is not available from a
treating source. 20 C.F.R. §§ 404.1519a(b), 416.919a(b).

20

In any case where there is evidence
that indicates the existence of a mental
impairment, the Commissioner may determine
that the claimant is not under a disability,
only if the Commissioner has made "every
reasonable effort to obtain the opinion of a
qualified
psychiatrist
or
psychologist."
McCall v. Bowen, 846 F.2d 1317, 1320 (llth
Cir. 1988)(quoting 42 U.S.C. § 421(h).
McCall interprets § 421(h), which requires
an ALJ to order a psychological consultation
where
there
is
evidence
of
a
mental
impairment. The Third Circuit has held that
the
normal
requirement
to
order
a
psychiatric consult pursuant to § 421 (h)
does not apply to cases falling under the
limited exception found in § 421(d), or
cases heard by an ALJ.
Plummer v. Apfel,
186 F.3d 422, 433 (3d Cir. 1999) (holding
that
§
421(h)
consultation
requirement
applies only to cases falling under §
421(a), (c), (g), (i) at the initial and
reconsideration levels).
In such cases, an
ALJ has regulatory flexibility to evaluate
mental
impairments
to
determine
their
severity.
Id.;
see
also
20
C.F.R.
§
404.1520a
(evaluation
of
mental
impairments).
Id. at 886.
The

Court

in

Sneed

went

on

to

reject

the

plaintiff’s

assertion that the ALJ erred because he did not consider the
effects of a doctor’s opinions regarding her marked restrictions
in the ability to respond to customary work pressures or to
maintain

attention,

concentration

or

pace

for

at

least

two

hours. In rejecting the plaintiff’s assertion, the court noted
that the evidence relied upon by the plaintiff was presented to
the appeals council after it had denied review, and that the
21

doctor had not rendered his opinions until four months after the
ALJ’s decision.

Thus, the Court concluded that it was unclear

how the ALJ could have failed to consider evidence and order a
consultative

examination

based

on

evidence

that

was

never

presented to him. The Court further noted that the evidence that
was before the ALJ consisted of the plaintiff’s testimony that
she was tearful, and that she was on Zoloft, an antidepressant,
and medical records which indicated that the plaintiff was also
treated with Xanax and that she had a “fair prognosis” from her
diagnosis

of

depression.

The

Eleventh

Circuit

found

that

“[t]hese brief references to depression, which was apparently
being treated with medication, were insufficient to trigger the
ALJ's duty to obtain a psychological consultative report.” Id.
In this case, the ALJ found as follows:
In activities of daily living, the
claimant has moderate restriction.
In
social
functioning,
the
claimant
has
moderate difficulties.
With regard to
concentration, persistence or pace, the
claimant has moderate difficulties.
As for
episodes of decompensation, the claimant has
experienced no episodes of decompensation,
which has been of extended duration. . . .
With
regard
to
the
claimant’s
mental
impairment, I find that the claimant has
major depressive disorder with psychotic
features.
I find that the claimant has a
severe limitation, but find that it does not
rise
to
a
severity
to
be
disabling.
Progress notes indicated that the claimant
has
experienced
improvement
with
her
medications and she, in fact, testified at
22

the hearing that she was no longer hearing
voices.
Progress notes from the treating
psychiatrist indicated improvement with no
hallucinations
and
no
delusions.
I
acknowledge that the claimant was assigned a
Global Assessment of Functioning of 50 in
June 2009.
However, in July 2009, Ms.
Perkins reported she was sleeping well with
decreased
anxiety
and
decreased
temper
outbursts. I find that the claimant is well
maintained on her medications and appears to
be improving with continuing therapy and
treatment. To give the claimant the benefit
of doubt, I have limited her to unskilled
work requiring only simple routine tasks
with few work place changes and no work at
production rate pace.
(Tr. at 25, 29).
The undersigned finds that unlike the plaintiff in Sneed,
the plaintiff in the instant case has a documented history of
regular and extended treatment for major depression d/o severe
with

psychotic

features

such

anxiety and suspiciousness.

as

depression,

hallucinations,

Further, while the medical records

reflect that Plaintiff responded well to medication, there is
also

evidence

that

her

symptoms

waxed

and

waned.

At

the

hearing, she reported that she was no longer hearing voices, but
that she was still experiencing nightmares that caused her to
scream out at night. Further, the treatment notes reflect that
at times, Plaintiff reported that her sleep and appetite were
good, and that she was doing well, and on other visits, she
indicated she was experiencing high levels of stress and anger,
23

and

that

her

Plaintiff’s
“50.”21

sleep

highest

Further,

and

appetite

GAF
the

for
ALJ’s

the

were

past

listing

fair.

In

year

was

of

mild

June

deemed
and

2009,
to

be

moderate

limitations flowing from Plaintiff’s mental impairments does not
include any facts or evidence he relied upon to formulate the
limitations.
mental

Thus,

it

limitations.

given the
treatment

is

not

clear

Accordingly,

the

how

he

arrived

undersigned

at

finds

these
that

evidence regarding Plaintiff’s regular and extended
for

major

depression

d/o

severe

with

psychotic

features coupled with evidence of her limited education, the ALJ
erred in not ordering a mental health consultative assessment in
order to determine the resulting mental functional limitations.
See Stewart v. Astrue, 551 F.Supp. 2d 1308, 1317 (N.D. Fla.
2008)(where the plaintiff received psychotropic medications for
an extended period of time and had very limited educational
21

The Global Assessment of Functioning (GAF) is a numeric
scale (0 through 100) used by mental health clinicians that
measures a patient’s overall level of psychological, social, and
occupational functioning on a hypothetical continuum. A GAF
score of 31-40 suggests that behavior is considerably influenced
by delusions or hallucinations or serious impairment, in
communication or judgment (e.g., sometimes incoherent, acts
grossly inappropriately, suicidal preoccupation) OR inability to
function in almost all areas (e.g., stays in bed all day, no
job, home, or friends). A GAF score of 41-50 indicates serious
symptoms indicative of antisocial behavior (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or
serious social dysfunction (e.g., no friends, unable to keep a
job).
24

skills,

case

should

be

remanded

to

obtain

a

mental

health

consultative assessment and intelligence testing).
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 a period of disability,
disability insurance benefits and supplemental security income,
be REVERSED and REMANDED.
DONE this 27th day of September, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

25