Bender v. Colvin

Filing 23

Order ent. that the decision of the Commissioner of Social Security denying Plaintiffs claim for supplemental security income be AFFIRMED.. Signed by Magistrate Judge Sonja F. Bivins on 9/23/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
EDNA BENDER,

*
*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 13-00172-B

ORDER
Plaintiff,

Edna

Bender

(hereinafter

“Plaintiff”),

brings

this action seeking judicial review of a final decision of the
Commissioner
supplemental

of

Social

security

Security

income

under

denying
Title

Security Act, 42 U.S.C. §§ 1381, et seq.

her

XVI

of

claim
the

for

Social

On April 10, 2014, the

parties consented to have the undersigned conduct any and all
proceedings in this case.

(Doc. 19).

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) and
Federal Rule of Civil Procedure 73.

Upon careful consideration

of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
AFFIRMED.
I.

Procedural History
Plaintiff

protectively

filed

an

application

for

supplemental security income on June 14, 2010.
258).

(Tr. at 236-39,

In her application, Plaintiff alleged that she has been

disabled since May 30, 2010, due to “back problems” and “knee
pain.”

(Id. at 236, 258, 262).

denied

and

upon

administrative
Martin

timely

hearing

(hereinafter

Plaintiff’s applications were

request,

before

“ALJ”)

she

was

Administrative

on

June

14,

granted

Law

2012.

Judge
(Id.

at

an

Perry
31).

Plaintiff attended the hearing with her counsel and provided
testimony related to her claims.
expert

(“VE”)

also

appeared

testimony.

(Id. at 50).

unfavorable

decision

(Id. at 25).

at

(Id. at 35).
the

hearing

A vocational
and

provided

On July 19, 2012, the ALJ issued an

finding

that

Plaintiff

is

not

disabled.

The Appeals Council denied Plaintiff’s request for

review on February 8, 2013.

(Id. at 1).

The parties waived

oral argument (Doc. 20) and 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 substantial evidence supports
the ALJ’s RFC assessment with respect
to Plaintiff’s mental limitations?

B.

Whether the ALJ erred in relying on the
testimony of the vocational expert?

III. Factual Background
Plaintiff was born on

July 6, 1966,

2

and was

forty-five

years of age at the time of her administrative hearing on June
14, 2012.
children,

(Tr. 31, 35).
ages

20,

She testified that she lives with her

17,

and

12.

(Id.

at

36).

Plaintiff

graduated from high school and received training in “management”
and as an “accounting specialist” during two years of college.
(Id. at 37, 263).

In her Function Report dated July 25, 2010,

Plaintiff stated that her interests include reading and talking
to relatives on the telephone.

(Id. at 279).

In her Disability Report dated June 30, 2010, Plaintiff
reported

that

she

worked

from

1988

to

1991

at

a

telephone

collection agency, making collection calls for utility services.
(Id. at 263-64).

Following a maternity leave, Plaintiff did not

return to the job because of objections over her pay. 1

(Id. at

40).
On May 30, 2010, Plaintiff fell in Walmart and fractured
her left patella.

(Id. at 323).

On June 10, 2010, Plaintiff

underwent an open reduction internal fixation of the left knee.
(Id. at 331).
protectively

Four days later, on June 14, 2010, Plaintiff

filed

her

application

1

for

supplemental

security

Plaintiff testified that her employer offered to pay her $1.00
an hour less when she returned, and she did not think that was
fair.
(Tr. 40).
She did not work elsewhere after that job
because there were no jobs available in Selma “paying th[e] kind
of money” that she made in Atlanta and because her back pain
became worse after she had her baby. (Id.).

3

income benefits based on “back problems” and “knee pain.” 2

(Id.

at 258, 262).
The following month, on July 25, 2010, Plaintiff filed a
Function Report. In the Report, Plaintiff stated that she was
not able to care for her children, that she could not take care
of her personal needs, and that she could not do indoor or
outdoor chores.

(Id. at 276-77).

She also stated she is able

to handle her own bills, banking, and finances.

(Id. at 277-

78).
Plaintiff was initially denied benefits by the Agency on
October 8, 2010.
updated

her

(Id. at 66).

condition

in

On November 2, 2010, Plaintiff

her

“Disability

Report

–

Appeal,”

stating that her leg was stiff and painful (although she could
drive), that her back pain was worse, and that she was depressed
by

the

screws.”

pain

and

the

fact

(Id. at 302).

that

her

leg

“look[ed]

ugly

with

Plaintiff reported, however, that she

had not sought any mental health treatment for her depression.
(Id. at 303).
Plaintiff
hearing

on

requested

June

14,

and

2012.

was
(Id.

granted
at

33).

an
At

administrative
the

hearing,

Plaintiff testified that she did not begin seeking treatment for
2

Three months later, in September 2010, Plaintiff likewise told
consultative psychological examiner, Dr. Nina Tocci, Ph.D., that
she was seeking disability based on low back pain and a broken
patella. (Tr. 363).

4

depression until July 2011.

(Id. at 46).

Plaintiff listed her

medications as Hydrocodone and Ibuprofen for knee pain.

(Id. at

264).
IV.

Analysis
A.

Standard of Review

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

is

a

limited

determining

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).

3

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
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

3

whether

substantial

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).

5

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

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in 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 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

§§

regulations
process

determining if a claimant has proven his disability. 4

4

C.F.R.

for

20 C.F.R.

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
6

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since June 14,
2010,

the

alleged

impairments

of

onset

status

post

depression, and obesity.
Plaintiff

does

not

date,

and

leg

an

she

injury,

(Tr. 17).

have

that

has

broken

the

left

severe

patella,

The ALJ further found that

impairment

or

combination

of

impairments that meets or medically equals any of the listed
impairments contained in 20 C.F.R. Part 404, Subpart P, Appendix
1.

(Id.).
The

ALJ

functional

concluded

capacity

that

Plaintiff

(hereinafter

“RFC”)

retains
to

the

perform

residual
sedentary

work, with the following limitations:
[T]he claimant must elevate her left lower
extremity to footstool height to relieve
pain or discomfort.
She is limited to
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
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, 836 (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.
Apfel, 190 F.3d 1224, 1228 (11th 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)).

7

occasional pushing or pulling movements with
her left lower extremity. The claimant is
restricted from climb ladders, ropes or
scaffolds but can occasionally climb ramps
and stairs. She can occasionally balance
with the use of a hand held assistive
device. The claimant is prohibited from
kneeling, crouching or crawling. She can
occasionally stoop.
[The claimant] must
avoid concentrated exposure to extreme heat
or cold, vibrations, humidity and wetness.
She
must
avoid
work
around
dangerous
machinery
and
unprotected
heights.
The
claimant is restricted from work requiring
walking
on
uneven
terrain
or
slippery
surfaces.
During
a
regularly
scheduled
workday, or the equivalent thereof, the
claimant can:
A.
Understand and remember short and
simple instructions, but is unable to
do
so
with
detailed
or
complex
instructions;
B. Do simple, routine, repetitive tasks
but is unable to do so with detailed or
complex tasks;
C. Have occasional and casual contact
with the general public and co-workers.
Accept constructive non-confrontational
supervisor criticism;
D. Deal with changes in the workplace,
if introduced gradually.
(Id. at 18-19).

The ALJ also determined that while Plaintiff’s

medically determinable impairments could reasonably be expected
to produce the alleged symptoms, her statements concerning the
intensity,
symptoms

persistence
were

not

and

credible

inconsistent with the RFC.
Given

limiting

Plaintiff’s

to

effects

the

extent

of

the

that

alleged

they

were

(Id. at 22).

RFC,

the

ALJ

found

that

Plaintiff

is

incapable of performing her past work as a collection clerk.

8

(Id. at 23).
concluded

However, utilizing the testimony of a VE, the ALJ

that

considering

Plaintiff’s

residual

functional

capacity for a range of sedentary work, as well as her age,
education and work experience, there are other jobs existing in
the national economy that Plaintiff is able to perform, such as
“addressing

clerk,”

and

“charge

account

clerk,”

and

“napper

tender,” all of which are classified as sedentary and unskilled.
(Id. at 24).
disabled.

Thus, the ALJ concluded that Plaintiff is not

(Id.).

Also pertinent to this appeal are the findings made by the
ALJ which informed his decision that Plaintiff is not disabled.
In determining that Plaintiff did not meet any Listing, the ALJ
made the following relevant findings:
The
severity
of
the
claimant’s
mental
impairment does not meet or medically equal
the criteria of listing 12.04. . . . In
activities of daily living the claimant has
mild restriction.
In social functioning,
the claimant has mild 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 have
been extended duration. . . . The claimant
is able to handle finances, shop, spend time
on the phone with friends and family, help
her children with their homes (sic) and play
games on the computer.
(Id. at 18).

In addition, in assessing Plaintiff’s RFC, the ALJ

made the following relevant findings:

9

At the hearing, the claimant testified she
is unable to work due to residuals from a
fall where she injured her left knee.
She
stated she fell at a discount store and
subsequently
underwent
surgery.
She
testified she stays in bed six to eight
hours a day and keeps her leg elevated. She
contends she tries not to walk without her
cane because her leg pops in the front.
[The claimant] testified she is able to walk
less than one hundred feet and can stand
only about five to ten minutes.
She has
problems sitting and can sit no more than
fifteen
minutes
and
then
starts
to
experience pain. She testified her children
perform all the household chores and do the
shopping.
She alleges she does not go
shopping by herself and uses a motorized
cart. She added she is not able to do much
cooking.
[The claimant] testified she started going
for mental health treatment on her own. She
stated she went to the emergency room the
month prior to the hearing for a Demerol
shot and it helped a little. She stated she
goes to Cahaba Mental health as often as she
can and see[s] a therapist. She stated she
is scheduled to see a psychiatrist.
She
noted it helps her to talk to somebody and
she has been trying to get them to give her
something for pain.
She reported she hears
voices and has a hard time sleeping.
She
testified that she was arrested and placed
in jail for something she did not do and
added she and her family have been through a
lot. She stated she is not able to walk and
cannot keep up with her children.
She is
not able to ride a bike and cannot kneel
down even to pray.
She stated all she
thinks about is her pain and getting rid of
it.
She is not able to get anyone to help
her.
She
alleges
she
does
not
watch
television and is in bed constantly trying
to get rest.
Mr.

Coplin,

the

claimant’s

10

representative,

argued that the claimant fell in Walmart and
hurt her left knee.
He stated she had a
broken patella in two pieces and underwent
orthopedic surgery.
He reported she has
stiffness in her knee and continues to have
pain.
He added that in July of last year,
she began having mental health problems. . .
.
At the request of the Office Of Disability
Determinations,
a
consultative
general
medical examination was performed by Dr. E.
Arnold Johnson, osteopath, on September 10,
2010. The assessments were pain in the knee
joint.
Dr. Johnson commented that the
claimant refused x-rays requested by the
Agency.
He opined that the claimant should
be able to perform a job that did not
require much walking.
There were no
limitations with her arms other than she
needs to use one to hold a cane.
He noted
she
should
be
able
to
drive
a
car
occasionally and perform office work or
retail work that did not require continuous
standing. . . .
Dr. Johnson wrote that he saw no objective
reason that would prevent [the claimant]
from working in an office or even retail if
it did not require frequent walking. . . .
He stated she used a cane to ambulate.
He
opined that objectively, he did not see any
limitation with her back and she exhibited
full effortless range of motion. . . .
On September 22, 2010 the claimant underwent
a
consultative
psychological
evaluation
conducted
by
Dr.
Nina
Tocci,
licensed
psychologist, at the request of the Agency.
The
diagnostic
impressions
were
pain
disorder, situational stress with authority
figures, chronic pain and she assigned a
Global Assessment of Functioning of 55
indicating moderate symptoms.
Dr. Tocci
summarized stating that the claimant had
some distress.
[The claimant] reported
constant pain in her knee and reported a

11

brief vocational history.
The examiner
noted the claimant had the ability to learn
and remember moderate tasks but pain could
interfere with her ability. Dr. Tocci noted
good insight into the claimant’s behavior
and in general, appeared to be functioning
within the average range of intellectual
ability. Thought content was appropriate to
mood and circumstance with logical thought
organization (Exhibit 5F).
The claimant began treatment with the Cahaba
Center for Mental Health in October 2011.
Intake therapist offered a diagnosis of
major depressive disorder, recurrent and
moderate; mood disorder and assigned a GAF
of 45 indicating serious symptoms.
The
claimant was first seen for counseling in
January
2012.
The
therapist
noted
appearance was appropriate and mood was
dysphoric.
Affect was inappropriate.
The
claimant was referred to a day program and
given contact numbers at the VA.
The GAF
remained 45 indicating serious symptoms. On
January 26, February 16 and March 5, 2012
the claimant was a no-show for counseling.
On March 12, progress notes indicated the
claimant had complaints of knee pain and
crying in regards to financial stressors.
She reported she was arrested for marching
in Jubilee. A GAF of 41 was assigned noting
serious symptoms and the therapist noted the
claimant was angry but was able to calm
down. The claimant continued treatment with
the Cahaba Center in April.
[The claimant]
reported she was very upset due to going
through a divorce and pain in her body. The
claimant
reported
she
had
no
medical
insurance and had been asking people for
prescription
drugs.
The
claimant
was
encouraged to go to the emergency room for
medications.
The claimant was noted to be
very distracted during the session due to
her medical bills.
She was assigned a GAF
of 38. In May, therapy notes indicated the
claimant got out of an abusive relationship
and reported the FBI was watching her. The

12

therapist noted the claimant was in a poor
mood and current GAF was 41 (Exhibits 9F,
11F and 12F). . . .
I have assigned great weight to the findings
and opinion of the consultative examiner,
Dr. Johnson who opined the claimant was
capable of performing office or retail work
that did not require extensive walking or
standing and I have allowed for this
limitation
in
the
residual
functional
capacity. He found that the claimant’s limp
revealed a mild to moderate limitation and
range of motion was mildly to moderately
limiting. Dr. Johnson wrote that he saw no
objective reason that would prevent [the
claimant] from working.
He acknowledged
that
she
used
a
cane
but
noted
no
instability.
He did not see any limitation
with
her
back
as
she
exhibited
full
effortless range of motion.
With
regards
to
the
claimant’s
mental
allegations, I find that the claimant has a
mild to moderate condition. She appears to
have
situational
depression
as
she
is
currently going through a divorce and has
financial
problems
with
no
medical
insurance. While the record makes reference
to her depression, the medical evidence does
not show that this would cause a significant
limitation in [the] claimant’s ability to
perform
basic
work
activities.
The
undersigned notes that the claimant has not
required intensive psychotherapy treatment
and
has
not
required
psychiatric
hospitalization. She is currently receiving
counseling.
I know that the therapist has
assigned a GAF of between 38 and 45
indicating serious symptoms; however, it is
noted that this
assessment is from a
therapist
and
not
a
mental
health
specialist.
For example, the assessment of
a GAF of 38 to 45 suggests that the claimant
experienced serious symptoms that included
suicidal ideations or serious impairment
socially or occupationally; however, during

13

the sessions, the therapist noted that
claimant was not suicidal or homicidal
was distraught and did not want to go to
emergency room. Therefore, I found that
assessment of a GAF in this range
unsupportive.

the
but
the
the
is

Instead, I have assigned great weight to the
findings and opinion of the consultative
psychologist Dr. Tocci whose diagnostic
impressions
were
pain
disorder
and
situational stress.
She assigned a GAF of
55 indicating moderate symptoms.
She noted
good
insight
with
thought
content
appropriate
and
logical
thought
organization. Dr. Tocci opined the claimant
had
some
distress
but
indicated
[the
claimant] had the ability to learn and
remember moderate tasks.
I agree with her
assessment
and
find
it
persuasive
and
consistent with the other medical evidence
of record.
To give the claimant the benefit of doubt, I
have limited her to sedentary work with the
ability to elevate her left lower extremity
to footstool height to relieve pain or
discomfort.
The claimant [also] has been
limited to simple, repetitive routine tasks.
(Tr. at 19-23) (emphasis added).

The Court now considers the

foregoing in light of the record in this case and the issue on
appeal.
1.

Issue
Whether substantial evidence supports
the ALJ’s RFC assessment with respect
to Plaintiff’s mental limitations?

Plaintiff argues that the ALJ’s finding that she retained
the RFC to perform a range of sedentary work, conditioned upon
the work being limited to understanding and remembering short

14

and

simple

instructions;

doing

simple,

routine,

repetitive

tasks; having occasional and casual contact with the general
public

and

co-workers;

accepting

constructive

non-

confrontational supervisor criticism; and dealing with changes
in the workplace, if introduced gradually (id. at 18-19), is not
supported by substantial evidence.5 (Doc. 14 at 3). Specifically,
Plaintiff

maintains

that

the

ALJ

erred

in

finding

that

her

depression is “severe” but that it does not “cause a significant
limitation in [her] ability to perform basic work activities.”
(Id.).

The Commissioner counters that the

ALJ’s Mental RFC

determination is fully supported by substantial medical evidence
in the record.

The Court has reviewed the record at length and

finds that substantial evidence supports the ALJ’s Mental RFC
assessment.
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
404.1545.

See 20 C.F.R. §

Determinations of a claimant’s residual functional

capacity are reserved for the ALJ, and the assessment is to be
based upon all the relevant evidence of a claimant’s remaining
ability to work despite his impairments, and must be supported
5

On appeal to this Court, Plaintiff challenges the ALJ’s RFC
assessment only with respect to her psychological impairment,
i.e., depression, and does not contest the ALJ’s RFC assessment
as it relates to her physical impairments.
(Doc. 13 at 3-5).
Thus, the Court limits its discussion of the ALJ’s RFC to
Plaintiff’s mental impairments.

15

by substantial evidence.

See Beech v. Apfel, 100 F. Supp. 2d

1323, 1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 404.1546 and
Lewis

v.

Callahan,

125

F.3d

1436,

1440

(11th

Cir.

1997));

Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10, 2012 WL
997222,

*4

determined
claimant

(M.D.
the

bears

Ala.

March

23,

2012).

Plaintiff’s

residual

the

of

burden

Once

functional

demonstrating

the

ALJ

has

capacity,

the

that

decision is not supported by substantial evidence.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).

the

ALJ’s

See Flynn v.
Plaintiff has

failed to meet her burden in this case.
As the ALJ found, the record confirms that Plaintiff did
not mention any mental impairment when she filed her initial
application for disability in June 2010, despite the fact that
the form specifically requires the claimant to list any mental
conditions that limit her ability to work.

(Tr. at 262).

In

fact, Plaintiff did not seek mental health treatment until more
than one year later, in July 2011, after she was denied benefits
by the Agency in October 2010.
Moreover,

the

report

(Id. at 46, 66, 262).
of

consultative

psychological

examiner, Dr. Nina Tocci, Ph.D., supports the ALJ’s finding that
Plaintiff’s depression does not cause “a significant limitation
in [her] ability to perform basic work activities.”
22).

(Id. at

Dr. Tocci examined Plaintiff on September 22, 2010, and

Plaintiff told Dr. Tocci that she was seeking disability solely

16

on the basis of two health problems, her lower back and a broken
patella.

(Id.

at

363).

Dr.

Tocci’s

notes

reflect

that

Plaintiff had good eye contact, responsive facial expressions,
and a cooperative attitude; her affect was appropriate, normal,
and stable; her mood was “okay;” her orientation was normal; her
concentration
information
intact;

was

and

her

focused;

she

comprehension;

thought

content

demonstrated
her

was

“ability

a

good

to

appropriate;

fund

abstract”

she

denied

of
was
any

change in appetite, crying spells, or sleep disturbances; she
denied suicidal or homicidal ideations; she demonstrated good
insight into her behavior

and fair social judgment; and she

appeared to be functioning in the average range of intellectual
ability.

(Id.

at

364-65).

Although

Dr.

Tocci

noted

that

Plaintiff was in “some distress,” she found that Plaintiff has
the ability to learn and remember moderate tasks.
Dr.

Tocci

“situational

diagnosed
stress”

Plaintiff
and

assigned

indicating only moderate symptoms.6

6

with

“pain

her
(Id.).

a

GAF

(Id. at 365).
disorder”
score

of

and
55,

Dr. Tocci’s opinions

GAF (Global Assessment of Functioning) 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 41-50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or
serious social dysfunction (e.g., no friends, unable to keep a
job).
A GAF score of 51-60 suggests moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
17

are based on her clinical findings and are consistent with the
other

record

great weight.

evidence;

thus,

the

ALJ

properly

assigned

them

(Id. at 23).

Also, the ALJ’s RFC determination related to Plaintiff’s
mental limitations is supported by the Mental RFC Assessment and
Psychiatric

Review

Technique

forms

completed

by

State

Agency

medical consultant, Dr. Ellen N. Eno, Ph.D., in October 2010.
(Id. at 369-86).

After reviewing the medical evidence, Dr. Eno

determined

Plaintiff

that

had

only

mild

restrictions

in

activities of daily living, moderate difficulties in maintaining
social functioning and concentration, persistence, or pace and
no episodes of decompensation.

(Id. at 379).

In addition, Dr.

Eno found that Plaintiff was not significantly limited in her
ability to understand, remember, and carry out very short and
simple instructions, to concentrate for reasonable periods of
time, and to respond appropriately to changes in work settings.
(Id. at 383-85).

Overall, Dr. Eno found that Plaintiff was only

“moderately limited” in four areas, those being, her ability to
understand, remember, and carry out detailed instructions, her

functioning (e.g., few friends, conflicts with peers or coworkers). A GAF score of 61-70 is indicative of mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy,
or
theft
within
the
household),
but
generally
functioning pretty well, has some meaningful interpersonal
relationships. See http://www.gafscore.com.

18

ability to maintain concentration for extended periods, and her
ability to interact appropriately with the general public.

Dr.

Eno found that Plaintiff was “not significantly limited” in the
remaining sixteen functional areas.
In

addition,

the

evidence

(Id. at 383-84).

of

Plaintiff’s

activities

of

daily living supports the ALJ’s RFC assessment with respect to
Plaintiff’s mental limitations.

Plaintiff testified that she

drives and that she drove herself to her hearing.
37).

(Id. at 36-

She also shops and handles her own banking and finances.

(Id. at 45, 278).

In addition, she enjoys reading as a hobby

and visiting with distant relatives over the telephone.
45, 279).

(Id. at

This evidence further belies Plaintiff’s assertion of

a disabling mental impairment.
Last,
Cahaba

the

Center

Court
for

has
Mental

reviewed
Health

the

treatment

where

treatment from October 2011 to May 2012.

notes

Plaintiff

from

received

(Id. at 388-403).

Plaintiff claims that the ALJ erred in rejecting the opinions of
her therapists regarding her GAF scores.

Plaintiff’s treatment

records at Cahaba reflect a range of GAF scores from 38 to 50,
indicating serious symptoms at times.

(Id. at 391-96, 402-03).

As a preliminary matter, the Court notes that the opinion
of a therapist, who is not a physician, is not an acceptable
medical

source

impairment.

to

establish

the

existence

of

a

medical

See Szilvasi v. Commissioner Soc. Sec. Admin., 555

19

F.

Appx.

898,

901

(11th

Cir.

2014)

(citing

20

C.F.R.

§

404.1513(a), (d)(1)) (“[B]ecause McCartney is a therapist, not a
physician, his opinions are not an acceptable medical source to
establish

the

existence

Nonetheless,

“medical

sources

considered

are

of

sources
other

who

a

medical

are

sources

not
and

impairment.”).

acceptable
their

medical

opinions

and

evidence may be used to show the severity of an impairment and
how it affects [the] ability to work[.]”

Grayer v. Colvin, 2014

U.S. Dist. LEXIS 28016, *26-27, 2014 WL 852451, *9 (S.D. Ala.
Mar. 5, 2014)

(citing 20 C.F.R. §§ 404.1513(d) & 416.913(d)

(internal quotation marks omitted).
In

this

case,

the

ALJ

found,

and

the

record

confirms,

inconsistencies in the therapists’ assignment of GAF scores and
their

own

contemporaneous

treatment

notes,

inconsistencies with the other record evidence.

as

well

as

For example, as

the ALJ found, Plaintiff’s treatment notes at Cahaba on April
26, 2012, and May 21, 2012, reflect that Plaintiff was neither
suicidal nor homicidal; yet, she was assigned GAF scores of 38
and

41,

respectively,

indicating

otherwise.

7

(Tr.

402-03).

Moreover, the GAF scores are inconsistent with the evidence of
Plaintiff’s

activities

of

daily

7

living,

as

established

by

The treatment notes reflect that while Plaintiff was distraught
over her divorce, physical pain, and her financial situation,
she was not suicidal or homicidal. (Tr. 402-03).

20

Plaintiff, and with the opinions of consultative psychological
examiner, Dr. Tocci, as set forth above.

For each of these

reasons, the ALJ did not err in assigning no weight to the
therapists’ GAF scores.
In light of the foregoing, the Court finds that the ALJ’s
determination that Plaintiff’s mental impairments do not cause a
significant

limitation

in

her

ability

to

perform

activities is based on substantial record evidence.

basic

work

There is no

question in this case that the ALJ considered all the evidence
of record and took into account Plaintiff’s treatment records,
the observations of medical sources concerning the severity of
Plaintiff’s limitations caused by her mental impairments, the
credible

opinions

provided

by

medical

sources

about

what

Plaintiff still can do, the reports provided to the Agency by
Plaintiff, and the Plaintiff’s testimony.
ALJ

copiously

evaluated

all

of

the

(Id. at 34-56).

foregoing

evidence

The
in

reaching his determination that Plaintiff retains the residual
functional capacity to perform a range of sedentary work, with
the conditions and restrictions set forth above, which fully
account

for

impairments.

the

limitations

(Id.).

Thus,

caused
the

by

Plaintiff’s

undersigned

mental

concludes

that

Plaintiff’s assignment of error related to the ALJ’s Mental RFC
assessment is without merit.

21

2.

Issue
Whether the ALJ erred in relying on the
testimony of the vocational expert?

Plaintiff next argues that the ALJ erred in relying on the
testimony of the vocational expert (“VE”) that Plaintiff could
perform

other

jobs,

namely,

clerk, and napper tender.

addressing

clerk,

charge

account

Specifically, Plaintiff argues that,

although the VE testified that his testimony was consistent with
the Dictionary of Occupational Titles (DOT) (Tr. 53), “the DOT
does not indicate [that] these jobs, or any jobs, would allow
for elevating the left leg to footstool height. . . [and] would
allow

for

the

use

of

a

cane

for

occasional

required by the ALJ’s RFC assessment.

balancing,”

(Doc. 13 at 6).

as
The

Commissioner counters that, while the DOT does not specifically
address the postural limitations imposed by the ALJ related to
footstool height elevation and the use of a cane, that does not
make the VE’s testimony inconsistent with the DOT.
13).

(Doc. 17 at

The Court has reviewed the record at length and finds

Plaintiff’s claim to be without merit.
As
retains

discussed
the

RFC

above,
to

the

perform

ALJ

concluded

sedentary

work,

that

conditioned

specified limitations, including:
[T]he claimant must elevate her left lower
extremity to footstool height to relieve
pain
or
discomfort.
.
.
.
She
can
occasionally balance with the use of a hand

22

Plaintiff
upon

held assistive device.
(Id. at 18).

At Plaintiff’s hearing, a VE was called to testify

as to jobs Plaintiff could perform with these and her other
specified limitations.

The VE testified that, considering an

individual of Plaintiff’s age, education, and work experience,
with all of the limitations contained in the RFC (as set forth
above), there are jobs existing in the regional and national
economies that such an individual could perform, in numbers the
ALJ found to be significant.

(Id. at 51-52).

The VE listed

addressing clerk, charge account clerk, and napper tender, all
of which are sedentary and unskilled.

(Id. at 52-53).

The ALJ

asked the VE if his opinion was consistent with the Dictionary
of Occupational Titles (DOT), and the VE answered affirmatively
that it was consistent.8

(Id. at 53).

8

The precise hypothetical posed to the VE by the ALJ was as
follows:
I’d like you to assume an individual of
[claimant’s]
age,
education,
and
work
experience,
could
perform
work
at
the
sedentary
exertional
level
with
the
following limitations: elevate left lower
extremity to foot stool height at will to
relieve
pain
or
discomfort;
occasional
pushing
or
pulling
with
left
lower
extremity;
no
climbing
ladders,
ropes,
scaffolds, occasional climbing of ramps and
stairs, occasional balancing with use of a
handheld assistive device, no kneeling,
crouching, crawling, occasional stooping,
avoid concentrated exposure to extreme heat
and
cold,
concentrated
exposure
to
23

As stated, Plaintiff argues that because the DOT does not
specifically address the ALJ’s postural limitations related to
elevating her left lower extremity to footstool height and the
use

of

a

cane

as

an

assistive

device,

between the DOT and the VE’s testimony.

there

is

a

conflict

Contrary to Plaintiff’s

argument, however, the fact that the DOT does not address the
vibration, concentrated exposure to humidity
and wetness, avoid all hazardous machinery,
unprotected
heights,
no
work
requiring
walking on uneven terrain or on slippery
[surfaces], also during a regular schedule
workday [INAUDIBLE] understand and remember
short and simple instructions, but unable to
do so in detailed [INAUDIBLE], and do
simple, routine, repetitive
tasks, unable
to do [INAUDIBLE] and complex tasks, contact
with the general public not be a usual job
duty
except
constructive,
non
confrontational supervisory criticism, and
can deal with changes in the workplace
instituted occasionally gradually. . . .
Could such a person with those limitations
perform any work in the national or regional
economy?
(Tr. 51-52).

The VE responded:

Yes, there would be jobs a person could do,
I would think, in an office setting of an
addressing clerk: DOT Number is 209.587-010;
it’s unskilled and sedentary work;. . . .
Another
possibility
would
be
a
charge
account
clerk;
DOT
Number
205.367-014;
that’s unskilled sedentary work; . . . .
The job as a Napper Tender would be an
appropriate job, the DOT number is 585.665010; that’s unskilled and sedentary work. .
. .
(Id. at 52-53).

24

postural limitations at issue does not suggest the existence of
a conflict between the DOT and the VE’s testimony; rather, it
indicates the absence of a conflict.

See Thomas v. Colvin, 2014

WL 2611720, *14 (D.S.C. June 11, 2014) (“[Plaintiff] concedes
that the DOT ‘does not address the extent of ongoing interaction
with the public in its description of the requirements of the
occupations.’ . . . Because the DOT does not address whether a
job requires ongoing interaction with the public, there is no
apparent unresolved conflict between the VE’s testimony and the
DOT

on

this

3880132,

*6

issue.”)
(D.S.C.

(citing

July

26,

Bilodeau
2013)

v.

Colvin,

(finding

that

2013
where

WL
the

plaintiff conceded the DOT did not address limitations in public
interaction, there was no apparent conflict to resolve)).
Moreover, SSR 00-4p requires only that the ALJ resolve an
“apparent

unresolved

conflict”

between

the

DOT

and

the

VE’s

testimony.

At the administrative hearing, the ALJ asked the VE,

“has

testimony

your

been

consistent

with

the

Dictionary

Occupational Titles,” and the VE replied “[i]t has been.”
53).

of

(Tr.

At no time did Plaintiff’s counsel raise any objection to

the VE’s testimony or his qualifications, nor did he suggest a
conflict between the VE’s testimony and the DOT.
was no apparent conflict for the ALJ to resolve.

Thus, there
See Leigh v.

Commissioner of Social Security, 496 F. Appx. 973, 975 (11th
Cir.

2012)

(unpublished)

(finding

25

no

apparent

inconsistency

between the VE’s opinion and the DOT where “the ALJ asked the VE
if there were any inconsistencies between his opinion and the
DOT . . .[;] the VE responded that there were not[;]” and the
claimant

“did

not

offer

any

evidence

controverting

opinion, nor did she object to the opinion.

the

VE’s

Even assuming that

there was an inconsistency between the VE’s opinion and the DOT,
the ALJ did not err in relying on the VE’s opinion to determine
that [the claimant] was not disabled.”).
“If no apparent conflict between the VE’s testimony and the
DOT

are

raised

at

address SSR 00-4p.”

the

hearing,

the

ALJ

Riddle v. Colvin,

is

not

required

to

2013 U.S. Dist. LEXIS

178621, *18, 2013 WL 6772419, *7 (M.D. Ala. 2013) (citing Gibson
v. Astrue, 2010 WL 3655857, *15 (N.D. Ga. 2010)).

Where, as

here, Plaintiff’s counsel did not identify any conflicts, “the
ALJ need not independently corroborate the VE’s testimony and
should

be

able

to

rely

on

such

conflict exists with the DOT.”

testimony

where

no

apparent

Id. (citing Brijbag v. Astrue,

2008 WL 276038, *2 (M.D. Fla. 2008) (citing cases); see also
Dickson v. Commissioner of Soc. Sec., 2014 WL 582885, *5 (M.D.
Fla. Feb. 13, 2014) (“SSR 00-4p does not require an ALJ to
independently investigate whether a conflict exists[;] it simply
requires that that ALJ ask the vocational expert if a conflict
does exist, and if a conflict exists, then the ALJ must explain
and resolve the conflict.”).

26

Last, the Court finds the ALJ did not err in relying on the
VE’s

testimony

testimony

because,

trumps

any

“in

the

Eleventh

inconsistent

Circuit,

provisions

the

of

the

VE’s
DOT.”

Riddle, 2013 U.S. Dist. LEXIS 178621, *19, 2013 WL 6772419, *7
(M.D. Ala. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1229-30
(11th Cir. 1994) (“[W]hen the VE’s testimony conflicts with the
DOT, the VE’s testimony ‘trumps’ the DOT.”).

Thus, for each of

these reasons, Plaintiff’s claim must fail.
In sum, “[i]n order for a vocational expert’s testimony to
constitute

substantial

hypothetical

question

impairments.”
Appx.

1006,

evidence,

which

the

comprises

ALJ

all

must

of

pose

the

a

claimant’s

Neefe v. Commissioner of Soc. Sec., 531 Fed.
1007

(11th

Cir.

2013)

(unpublished)

(quoting

Winschel v. Commissioner of Soc. Sec., 631 F.3d 1176, 1180 (11th
Cir. 2011) (internal quotation marks omitted)).

Plaintiff does

not dispute that the ALJ’s hypothetical correctly set forth all
of

her

limitations.

question,

which

constituted

Therefore,

created

substantial

no

the

apparent

evidence

in

VE’s

response

conflict
support

of

that

the

with

to

DOT,

the

ALJ’s

finding.
V.
For

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

27

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be AFFIRMED.
DONE this 23rd day of September, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

28