Burford v. Commissioner of Social Security

Filing 23

OPINION AND ORDER. The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 3/9/2018. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KEVIN BURFORD,
Plaintiff,
v.

Case No: 8:16-cv-2839-T-DNF

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Kevin Burford, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying his claim for a period of disability,
Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”).

The

Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.” followed by
the appropriate page number), and the parties filed legal memoranda setting forth their respective
positions. For the reasons set out herein, the decision of the Commissioner is REVERSED AND
REMANDED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision

A. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The

impairment must be severe, making the claimant unable to do his previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405 (g). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that he is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit his physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that his impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If he meets this burden, he will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, he will be found not disabled. Id. In determining
whether the Commissioner has met this burden, the ALJ must develop a full and fair record
regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200,

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1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The
first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the
Commissioner meets this burden does the burden shift back to the claimant to show that he is not
capable of performing the “other work” as set forth by the Commissioner. Doughty v. Apfel, 245
F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed an application for a period of disability and DIB on January 27, 2014. (Tr.
194-202) Plaintiff filed an application for SSI on the same day. In both applications Plaintiff
alleged a disability onset date of April 10, 2012. (Tr. 194, 196). Plaintiff’s applications were
denied initially on March 27, 2014. (Tr. 141-43, 146-48). Plaintiff’s application for SSI was denied
upon reconsideration on April 11, 2014, and Plaintiff’s application for a period of disability and
DIB was denied upon reconsideration on May 29, 2014. (Tr. 149-53, 156-60). Plaintiff requested
a hearing and, on May 5, 2015, an administrative hearing was held before Administrative Law
Judge James G. Myles (“the ALJ”). (Tr. 31-50). On May 12, 2015, the ALJ entered a decision
finding that Plaintiff was not under a disability from April 10, 2012, through the date of the
decision. (Tr. 14-30). Plaintiff filed a request for review which the Appeals Council denied on
August 4, 2016. (Tr. 1-6). Plaintiff initiated this action by filing a Complaint (Doc. 1) on October
5, 2016.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since April 10, 2012, the alleged onset date. (Tr. 16). At step two, the
ALJ found that Plaintiff had the following severe impairments: degenerative disc disease, bipolar

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disorder, anxiety, and posttraumatic stress disorder. (Tr. 16). At step three, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that meets or medically equals
the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr.
17).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: The
claimant can occasionally crouch, balance, stoop, climb, kneel, and crawl.
However, he should avoid ladders, ropes, and scaffolds. The claimant
should avoid flashing lights. The claimant should also avoid concentrated
exposure to workplace hazards. Although the claimant can have
occasional interpersonal contact in the workplace, he should not work as
part of a team or hve more than superficial contact with the public. The
claimant’s work should not consist of quotas or pay for performance. The
claimant is limited to routine, unskilled work.
(Tr. 20). At step four, the ALJ found that Plaintiff is unable to perform his past relevant work as
a case manager for a non-profit organization, security guard, and a painter. (Tr. 23). The ALJ
noted that Plaintiff’s work as a clerk at Target did not qualify as past relevant work because it was
not performed at substantial gainful activity levels. (Tr.23).
At step five, the ALJ relied on the testimony of a vocational expert to find that, considering
Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that he can perform. (Tr. 24). Specifically, the ALJ found that
Plaintiff can perform such occupations as “housekeeping, cleaner,” “laundry,” and “packager.”
(Tr. 24). The ALJ concluded that Plaintiff had not been under a disability from April 10, 2012,
through the date of the decision, May 12, 2015. (Tr. 25).

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II.

Analysis
Plaintiff raises two issues on appeal: (1) whether the ALJ erred by failing to properly

evaluate the severity of Plaintiff’s mental impairments; and (2) whether the ALJ erred by failing
to properly evaluate the medical opinions of record. The Court will address each issue in turn.
A) Whether the ALJ erred by failing to properly evaluate the severity of Plaintiff’s
mental impairments.
Plaintiff argues that the ALJ failed to properly consider the severity of Plaintiff’s mental
impairments in several ways. First, Plaintiff argues that the ALJ erred by failing to evaluate the
effects Plaintiff’s panic attacks have on his ability to function. (Doc. 20 p. 5). Second, Plaintiff
contends that the ALJ improperly based his evaluation of Plaintiff’s mental impairments on
abilities Plaintiff had prior to his onset date. (Doc. 20 p. 5-6). Third, Plaintiff argues that the ALJ
improperly determined the severity of Plaintiff’s mental impairments based on Plaintiff’s short
appearance at the hearing. (Doc. 20 p. 6). Fourth, Plaintiff contends that the ALJ erred by relying
on the perceptions of a non-medical agency worker during a telephone call while failing to consider
the testimony of a lay witness that has known Plaintiff for seven years. (Doc. 20 p. 6). Finally,
Plaintiff argues that the ALJ erred when he rejected Plaintiff’s claim for disability because the
record was not suggestive of any marked limitations. (Doc. 20 p. 8).
In response, Defendant argues that the ALJ properly determined Plaintiff’s RFC of a
reduced range of light work based on the record as a whole and the record simply fails to show
that Plaintiff has work-related limitations beyond those assessed by the ALJ in his RFC. (Doc. 21
p. 5).
At the fourth step in the evaluation process, the ALJ is required to determine a claimant’s
RFC and based on that determination, decide whether the plaintiff is able to return to his or her
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previous work. McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). The determination of
a claimant’s RFC is within the authority of the ALJ and along with the claimant’s age education,
and work experience, the RFC is considered in determining whether the claimant can work. Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The RFC is the most a plaintiff is able to do
despite her physical and mental limitations. 20 C.F.R. § 404.1545(a)(1). In determining whether
Plaintiff can return to her past relevant work, the ALJ must determine the Plaintiff’s RFC using all
of the relevant medical and other evidence in the record. Phillips v. Barnhart, 357 F.3d 1232,
1238-39 (11th Cir. 2004), 20 C.F.R. §404.1520(e). An ALJ must consider all of a claimant’s mental
impairments which are sufficiently severe in combination with all of a claimant’s impairments.
Hurley v. Barnhart, 385 F. Supp. 2d 1245, 1256 (M.D. Fla. 2005).
Beginning with Plaintiff’s contention that the ALJ failed to consider Plaintiff’s allegations
of having panic attacks two to three times a month, the Court finds that Plaintiff has failed to
demonstrate reversible error. In his decision, the ALJ noted that Plaintiff testified to having panic
attacks two to three times a month. (Tr. 18). Plaintiff, however, fails to cite to any record where a
doctor diagnosed Plaintiff with panic attacks, or offer an opinion as to how these panic attacks
affect Plaintiff’s functional capacity. Further, the ALJ determined that Plaintiff's subjective
complaints of disabling conditions were not entirely credible, a finding that Plaintiff does not
challenge on review. See, e.g., Sanchez v. Comm'r of Soc. Sec., 507 F. App'x 855, 856 n.1 (11th
Cir. 2013) (holding claimant waived arguments by not expressly challenging ALJ's findings).
The Court also rejects Plaintiff’s argument that the ALJ committed reversible error by
considering work prior to his alleged onset date of April 10, 2012 in his decision. In his decision,
the ALJ found that Plaintiff’s ability to work in mostly semi-skilled jobs such as a clerk, case
manager and security guard belied his arguments that he had difficulty staying on tasks. (Tr. 19,

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22). As to the ALJ’s consideration of Plaintiff’s work history as a clerk, it was proper for the ALJ
to consider this fact in reaching his decision. The record shows that Plaintiff worked as a
retail/sales clerk at Target after his alleged onset date. (Tr. 225, 256-58). See 20 C.F.R. §§
404.1571, 416.971; Cooper v. Comm'r of Soc. Sec., 521 F. App'x 803, 808 (11th Cir. 2013). As
to the jobs of case manager and security guard with Saint Vincent De Paul, the record is ambiguous
as to whether these jobs were performed after the alleged onset date of April 10, 2012. The record
shows Plaintiff’s employment with Saint Vincent De Paul ended in April of 2012, thus potentially
overlapping with his alleged onset date. In any event, the ALJ did not rely heavily upon Plaintiff’s
work history at Saint Vincent De Paul in considering Plaintiff’s mental impairments, but
considered it as just one fact in the record as a whole.
Likewise, the Court rejects Plaintiff’s argument that the ALJ improperly discredited
Plaintiff’s testimony on the basis that he testified without difficulty. An ALJ is permitted to
consider a plaintiff’s appearance and demeanor in making a credibility determination. Cormier v.
Astrue, 2012 WL 4369667, *5 (M.D. Fla. Sept. 25, 2012). In this case, the ALJ did not discredit
Plaintiff or deny his claim solely on his demeanor at the administrative hearing, but considered it
as one factor in addition to the other evidence of record. See Norris v. Heckler, 760 F.2d 1154,
1158 (11th Cir. 1984) (providing that an ALJ is not prohibited from considering the claimant’s
appearance and demeanor during the hearing so long as the ALJ does not impose his observations
in lieu of the medical evidence presented).
The Court does not find it appropriate to remand this case because the ALJ remarked that
“there were no problems noted by the field office during the claimant’s teleclaim.” (Tr. 22). While
the Court agrees with Plaintiff that this statement is not probative of Plaintiff’s claim for disability,
the context of this observation shows that the ALJ did not unduly rely on this statement in his

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decision. Further, the ALJ did not commit reversible error by failing to directly address the opinion
of Plaintiff’s friend Phyllis Martin, who has known Plaintiff for seven years. Generally, the ALJ
must “state specifically the weight accorded each item of evidence and the reasons for his
decision.” Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986). However, where the ALJ fails
to make an explicit credibility determination as to a family member’s testimony or statements,
there is no error if the credibility determination was implicit in the rejection of the claimant’s
testimony. See Osborn v. Barnhart, 194 F. App’x 654, 666 (11th Cir. 2006). Here, the Court finds
that the ALJ implicitly rejected the lay opinion of Ms. Martin when he did not find Plaintiff entirely
credible. See Foreman v. Astrue, 2010 WL 3292810, at *6 (M.D. Fla. Aug. 3, 2010).
Finally, the Court rejects Plaintiff’s argument that the ALJ “erred in asserting that it must
find ‘marked’ limitations in order for there to be a disability.” (Doc. 20 p. 8). In his decision, while
explaining his RFC finding, the ALJ stated that “the record is not suggestive of any marked
limitations.” (Tr. 21). The ALJ did not assert, however, that Plaintiff must find marked limitations
to be disabled. After remarking that Plaintiff did not have any marked limitations in mental
functioning, the ALJ proceeded to summarize the medical record and explain his reasoning in
formulating Plaintiff’s RFC. (Tr. 21-23). While the ALJ did not find Plaintiff to have any marked
limitations in mental functioning, he nevertheless limited Plaintiff to routine, unskilled work, and
specified that Plaintiff could have only occasional interpersonal contact in the work place, but
should not work as part of a team or have more than superficial contact with the public. (Tr. 20).
Although the ALJ did not find Plaintiff to have marked mental limitations, the ALJ’s RFC finding
shows that the ALJ fully considered the record Plaintiff’s mental impairments, even if they were
not “marked.”

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Plaintiff has failed to demonstrate that the ALJ committed reversible error in evaluating
the severity of Plaintiff’s mental impairments. Accordingly, the Court will not disturb the ALJ’s
findings on review.
B) Whether the ALJ erred by failing to properly evaluate the medical opinions of record.
Plaintiff argues that the ALJ failed to properly evaluate the medical opinions of record in
several ways. First, Plaintiff argues that the ALJ erred by improperly evaluating the GAF scores
contained in the record. (Doc. 20 p. 9-10). Specifically, Plaintiff argues that the ALJ uses
Plaintiff’s GAF scores to belittle opinions of treating sources while belittling GAF scores that
bolster the opinions of treating physicians. (Doc. 20 p. 10). Second, Plaintiff argues that the ALJ
erred by failing to develop the record as to Dr. Gurrier. (Doc. 20 p. 10). Plaintiff notes that Dr.
Gurrier’s opinion provides that he has been treating Plaintiff for over five years, but there are no
records in evidence from Dr. Gurrier. Plaintiff contends that the ALJ should have sought
additional evidence from Dr. Gurrier before making his determination. Third, Plaintiff argues that
the ALJ erred in evaluating the opinions of Plaintiffs’ therapists. (Doc. 20 p. 11). Specifically,
Plaintiff argues that while the ALJ accorded some weight to the opinion of therapist Ashely
Hancock he did not specify what “some” means. (Doc. 20 p. 11). Further, Plaintiff argues that the
ALJ erred by according limited weight to the opinion from Plaintiff’s therapist at Suncoast Center.
(Doc. 20 p. 11). Plaintiff argues that it was improper for the ALJ to consider Plaintiff’s prognoses
as prognoses refer to future prospects, not Plaintiff’s current state. (Doc. 20 p. 11). Finally,
Plaintiff argues that the ALJ erred by failing to articulate the weight accorded to Dr. Bowman’s
opinions. (Doc. 20 p. 12).
In response, Defendant argues that the ALJ properly considered the opinions of record in
assessing Plaintiff’s RFC. (Doc. 21 p. 13-16). Defendant argues that the ALJ did not “cherry-

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pick” GAF scores, but discounted the lower GAF scores when they were inconsistent with the
record as a whole. (Doc. 21 p. 14). Defendant argues that the ALJ properly weighed the opinions
of Plaintiff’s therapists and that it was proper to consider Plaintiff’s prognoses. (Doc. 21 p. 15-16).
Finally, Defendant argues that Dr. Bowman’s opinion provides substantial evidence to support the
ALJ’s determination of Plaintiff’s mental functional limitations and, therefore, the ALJ was not
required to explicitly state the weight he gave the opinion. (Doc. 21 p. 16).
The Eleventh Circuit has held that whenever a physician offers a statement reflecting
judgments about the nature and severity of a claimant’s impairments, including symptoms,
diagnosis, and prognosis, what the claimant can still do despite his or her impairments, and the
claimant’s physical and mental restrictions, the statement is an opinion requiring the ALJ to state
with particularity the weight given to it and the reasons therefor. Winschel v. Comm’r of Social
Security, 631 F3d 1176, 1178-79 (11th Cir. 2011). Without such a statement, “it is impossible for
a reviewing court to determine whether the ultimate decision on the merits of the claim is rational
and supported by substantial evidence.” Id. (citing Cowart v. Shweiker, 662 F.2d 731, 735 (11th
Cir. 1981)). A doctor’s opinion may be discredited when it is contrary to or unsupported by the
evidence of record, or the opinion is inconsistent with the doctor’s own medical records. Id. (citing
Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004)).
Here, the Court finds that the ALJ erred in evaluating the medical opinions of record. First,
the ALJ erred in his consideration of therapist Ashely Hancock’s opinion. The ALJ addressed Ms.
Hancock’s opinion as follows:
I also considered the opinion of Ashley Hancock, LMHC, (SSR 06-3p, Ex.
12F). The record reflects that the claimant had eight therapy sessions with
Ms. Hancock. Further, Ms. Hancock opined that the claimant’s GAF score
was 45, suggestive of serious limitation. Some weight is given to this
opinion but a GAF score is not indicative of disability. To the contrary,

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GAF scores are only an indication of one’s function the day of assessment
and provide no longitudinal application.
(Tr. 23). While the ALJ specifies that he is according “some” weight to the opinion, he fails to
identify the opinion. The only aspect of Ms. Hancock’s opinion the ALJ discussed is the GAF
score, which the ALJ specifically rejects because it is not indicative of disability. The ALJ’s
decision to give “some” weight to an opinion that he does not discuss does not satisfy Winschel’s
requirement that ALJ’s state the particular weight given to medical opinions and the reasons
therefor.
Similarly, the Court finds that the ALJ erred by failing to state the weight accorded to the
opinion of consultative psychologist Paula Bowman, Psy.D. The Court rejects Defendant’s
argument that the ALJ’s failure was harmless because Dr. Bowman’s opinion was consistent with
the ALJ’s RFC finding. As the ALJ noted in his opinion, Dr. Bowman opined that Plaintiff had
marked difficulty coping with stress. While the ALJ’s comment that Dr. Bowman did not define
“marked difficulty coping with stress” seems to suggest he did not give weight to this portion of
the opinion, the ambiguity of the ALJ’s treatment of Dr. Bowman’s opinion underscores the
importance of requiring the ALJ to state the precise weight given to medical opinions.
As to the remainder of Plaintiff’s arguments, the Court rejects them as grounds for remand.
As Defendant notes it is proper for an ALJ to consider prognoses in formulating the RFC.
Winschel, 631 F.3d at 1178-79 (providing whenever a physician offers a statement reflecting
judgments about the nature and severity of a claimant’s impairments, including symptoms,
diagnosis, and prognosis . . . the statement is an opinion requiring the ALJ to state with
particularity the weight given to it and the reasons therefor.) (emphasis added). Unlike the
opinions of Ms. Hancock and Dr. Bowman, the ALJ stated the weight he accorded the opinions
from Plaintiff’s therapists at Suncoast Center. (Tr. 22-23). Finally, Plaintiff has failed to show that
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the ALJ erred by failing to develop the record by not securing records from Dr. Gurrier. It is the
claimant’s burden to establish that she is disabled and, consequently, to produce evidence in
support of her claim. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20 C.F.R.
§ 416.912(a)).
III.

Conclusion

The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the
Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on March 9, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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