ITHIER v. ASTRUE

Filing 16

ORDER: Decision of the Commissioner is AFFIRMED. Clerk directed to enter final judgment and close the file. Signed by MAGISTRATE JUDGE GARY R JONES on 3/14/2013. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
MANUELA ITHIER,
Plaintiff,
v.

CASE NO. 1:11-cv-238-GRJ

MICHAEL J ASTRUE, Commissioner
of Social Security,
Defendant.
_____________________________/
ORDER
Plaintiff appeals to this Court from a final decision of the Commissioner of Social
Security (the “Commissioner”) denying Plaintiff’s applications for disability insurance
benefits and supplemental security income pursuant to Titles II and XVI of the Social
Security Act (the Act). (Doc. 1.) The Commissioner has answered, and both parties
have filed briefs outlining their respective positions. (Docs. 10, 14, 15.) The parties
have consented to have the undersigned U.S. Magistrate Judge conduct all
proceedings in this case. (Docs. 8, 9.) For the reasons discussed below, the
Commissioner's decision is AFFIRMED.
I. PROCEDURAL HISTORY
Plaintiff filed applications for disability insurance benefits under Title II of the
Social Security Act (the “Act”) and supplemental security income benefits under Title
XVI of the Act on January 10, 2005 alleging a disability due to carpal tunnel syndrome
beginning December 15, 2004. (R. 233-39.) Plaintiff’s applications were denied initially
and upon reconsideration. (R. 76-78, 80-82.) An administrative hearing was held

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before an Administrative Law Judge (“ALJ”) on February 14, 2007, and on May 9, 2007,
and the ALJ issued a written decision finding that Plaintiff was not disabled. (R. 43-49.)
The Appeals Council reversed and remanded the decision, and consolidated the
remanded claims with Plaintiff’s subsequent claims filed on October 1, 2007. (R. 10711.) The ALJ conducted a second hearing on December 18, 2008, and denied
Plaintiff’s claims on July 31, 2009. (R. 16-23.) The Appeals Council denied review on
September 14, 2011. (R. 5-8.) Plaintiff then filed her Complaint in this case on
November 7, 2011 (Doc. 1.)
II. STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial
evidence.1 Substantial evidence is more than a scintilla, i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the
conclusion.2
Where the Commissioner's decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result as
finder of fact, and even if the reviewer finds that the evidence preponderates against
the Commissioner's decision.3 The district court must view the evidence as a whole,

1

See 42 U.S.C. § 405(g) (2000).

2

Foote v. Chater, 67 F.3d 1553, 1560 (11 th Cir. 1995) (citing W alden v. Schweiker, 672 F.2d 835,
838 (11 Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842
(1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11 th Cir. 1991).
th

3

Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 th Cir. 1991).

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taking into account evidence favorable as well as unfavorable to the decision.4
However, the district court will reverse the Commissioner's decision on plenary review if
the decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law.5
The law defines disability as the inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death, or has lasted or can be expected to last for a continuous
period of not less than twelve months.6 The impairment must be severe, making
Plaintiff unable to do his previous work, or any other substantial gainful activity which
exists in the national economy.7
The ALJ must follow five steps in evaluating a claim of disability.8 First, if a
claimant is working at a substantial gainful activity, he is not disabled.9 Second, if a
claimant does not have any impairment or combination of impairments which
significantly limit his physical or mental ability to do basic work activities, then he does

4

Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11 th Cir. 1992) (holding
that the court m ust scrutinize the entire record to determ ine reasonableness of factual findings); Parker v.
Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the court also m ust consider evidence detracting from
evidence on which the Com m issioner relied).
5

Keeton v. Dep’t Health and Hum an Servs., 21 F.3d 1064, 1066 (11 th Cir. 1994).

6

42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505 (2005) (All further references to 20 C.F.R.
will be to the 2005 version unless otherwise specified.).
7

42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

8

20 C.F.R. §§ 404.1520, 416.920. The claim ant has the burden of proving the existence of a
disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 th Cir. 1991).
9

20 C.F.R. § 404.1520(b).

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not have a severe impairment and is not disabled.10 Third, if a claimant's impairments
meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is
disabled.11 Fourth, if a claimant's impairments do not prevent him from doing past
relevant work, he is not disabled.12 Fifth, if a claimant's impairments (considering his
residual functional capacity (“RFC”), age, education, and past work) prevent him from
doing other work that exists in the national economy, then he is disabled.13
The burden of proof regarding the plaintiff’s inability to perform past relevant
work initially lies with the plaintiff.14 The burden then temporarily shifts to the
Commissioner to demonstrate that “other work” which the claimant can perform
currently exists in the national economy.15 The Commissioner may satisfy this burden
by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive

10

20 C.F.R. § 404.1520(c).

11

20 C.F.R. § 404.1520(d).

12

20 C.F.R. § 404.1520(e).

13

20 C.F.R. § 404.1520(f).

14

W alker v. Bowen, 826 F.2d 996, 1002 (11th Cir. 1987); see also Doughty v. Apfel, 245 F.
3d 1274, 1278 (11 th Cir. 2001).
15

Doughty, 245 F.3d at 1278 n.2. In Doughty the court explained this burden shifting as follows:

In practice, the burden tem porarily shifts at step five to the Com m issioner. The
Com m issioner m ust produce evidence that there is other work available in significant
num bers in the national econom y that the claim ant has the capacity to perform . In order
to be considered disabled, the claim ant m ust then prove that he is unable to perform the
jobs that the Com m issioner lists. The tem porary shifting of the burden to the Com m issioner
was initiated by the courts, and is not specifically provided for in the statutes or
regulations.) (Internal citations om itted).

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determination that a claimant is disabled or not disabled.16
However, the ALJ should not exclusively rely on the Grids when “the claimant
has a non-exertional impairment which significantly limits his or her basic work skills or
when the claimant cannot perform a full range of employment at the appropriate level of
exertion.”17 In a situation where both exertional and non-exertional impairments are
found, the ALJ is obligated to make specific findings as to whether they preclude a wide
range of employment.18
The ALJ may use the Grids as a framework to evaluate vocational factors so
long as he introduces independent evidence of the existence of jobs in the national
economy that the claimant can perform.19 Such independent evidence may be
introduced by a Vocational Expert’s (“VE”) testimony, but this is not the exclusive
means of introducing such evidence.20 Only after the Commissioner meets this burden
does the burden shift back to the claimant to show that he or she is not capable of
performing the “other work” as set forth by the Commissioner.

16

W alker, 826 F.2d at 1002 (“[T]he grids m ay com e into play once the burden has shifted to the
Com m issioner to show that the claim ant can perform other work.”).
17

W olfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). See Jones v. Apfel, 190 F.3d 1224, 1229
(11 Cir. 1999); W alker, 826 F.2d at 1003 (“The grids m ay be used only when each variable on the
appropriate grid accurately describes the claim ant’s situation.”).
th

18

W alker, 826 F.2d at 1003.

19

W olfe, 86 F.3d at 1077-78.

20

See id.

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III. SUMMARY OF THE RECORD
A. Relevant Medical Records
Plaintiff alleged that she was injured in 2001 while working at Burger King, when
she was lifting a basket of french fries. In January 2002, she was treated at the Ocala
Orthopaedic Group for carpal tunnel syndrome. (R. 373.) She was treated in 2003 at
Shands for de Quervain’s tensosynovitis, and records from November 2003 indicate
some improvement in her symptoms. (R. 376.) Plaintiff was treated by Drs. Demmi
and Medero from January 2003 to June 2004 for wrist pain, and was placed on
restrictive duty at work, though a physical examination in June 2004 revealed a full
range of motion in her right arm. (R. 439.)
Plaintiff was treated for asthma at the Monroe Regional emergency room in
September 2004. (R. 492-94.) Plaintiff was again treated at Monroe Regional for
dyspnea and asthma in May 2006. (R. 489-91.) From October 2006 to November
2006, Plaintiff was treated by Thomas Mohan, ARNP for asthma, hypertension, sleep
apnea, and carpal tunnel syndrome. (R. 508-09.) In November 2006, Plaintiff was
treated by Dr. Kim for mild carpal tunnel syndrome and sleep apnea. (R. 515-20.) Dr.
Kim also treated Plaintiff for sleep apnea in January 2007. (R. 544.) In January and
February 2007, Dr. Reddy treated Plaintiff for carpal tunnel syndrome and chest pain,
and in May 2007 Plaintiff returned to ARNP Mohan for treatment for asthma. (R. 55071, 579-90.) Plaintiff’s asthma treatment with ARNP Mohan continued until May 2008.
On March 25, 2005, Dr. Lawrence Field evaluated Plaintiff on behalf of the state

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agency. (R. 474-76.) Dr. Field diagnosed Plaintiff with hypertension, morbid obesity,
functional illiteracy, and right elbow and wrist pain, but found no mental or physical
impairments. On September 28, 2005, Dr. Raju examined Plaintiff on behalf of the state
agency. (R. 495-99.) Dr. Raju diagnosed Plaintiff with diabetes, hypertension, asthma,
joint pain, obesity, and post-carpal tunnel syndrome. He found that Plaintiff had a
normal gait, with no difficulties getting on or off the exam table, and found that Plaintiff
had a normal range of motion in her hands with normal hand grip and dexterity. (R.
498.)
Dr. Gona examined Plaintiff on behalf of the state agency on March 6, 2008.
(575-78.) Dr. Gona diagnosed Plaintiff with asthma, sleep apnea, hypertension,
degenerative joint disease, GERD, and right forearm pain. Dr. Gona found that Plaintiff
had a normal gait, with mild limping on the right leg, and found that Plaintiff had a
normal hand grip, with normal dexterity and fine manipulation of the hands. (R. 576.)
ARNP Mohan completed a Functional Capacity Evaluation for Plaintiff on July
28, 2008. (R. 623.) Mohan opined that Plaintiff was limited to lifting five pounds
occasionally, and was limited to rarely pushing or pulling, climbing, gross and fine
manipulation, bending and stooping, and reaching. Mohan opined that Plaintiff’s
impairments would frequently interfere with her concentration at work, and that she
would need to lay down and elevate her legs throughout the day.
More than three months after the conclusion of the December 2008 hearing
before the ALJ, Plaintiff was treated at the Centers for depression in March and April
2009. (R. 625-33.) Plaintiff was diagnosed with a mood disorder, and was prescribed
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medication for depression in March 2009, and that the treating nurse Heidi Crowe
recommended that Plaintiff participate in substance abuse counseling and therapy. (R.
632.) When Plaintiff returned in April 2009, she reported that the “meds are helping”
and that she was no longer crying for no reason, and that she was sleeping well. (R.
625.) In April 2009, Plaintiff was treated by John Grooms for bilateral knee arthritis,
and prescribed injections. (R. 624.)
B. Summary of Hearing Testimony
At the second hearing before the ALJ, Plaintiff testified as to her past work as a
food packager, as a food preparer at Burger King, and as a cashier at Dollar General at
One Stop Convenience Center. In response to the ALJ’s inquiry as to her “most serious
impairment,” Plaintiff responded that asthma was the most severe impairment. (R.
704.) The ALJ noted that Plaintiff had not listed asthma as an impairment on her initial
application for benefits, and inquired as to Plaintiff’s treatment for asthma and other
breathing issues. Plaintiff testified that her next most significant impairment was carpal
tunnel syndrome. (R. 706.) She further testified that she was treated for arthritis, blood
pressure, and diabetes. (R. 707.) Both the ALJ and Plaintiff’s attorney questioned
Plaintiff about her pain and breathing problems. At the conclusion of Plaintiff’s
attorney’s questioning, the attorney asked Plaintiff “if there is anything that I haven’t
asked you about that the Judge would need to know before he makes a decision on
why we’re here today.” (R. 729.) Plaintiff responded “No,” and stated that “I think we’ve
covered everything.” Id.
After Plaintiff’s testimony, the ALJ questioned vocational expert Donna Mancini
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regarding the classification of Plaintiff’s prior work. Ms. Mancini opined that a
hypothetical individual with Plaintiff’s limitations could perform a cashier position and a
hand packager position as Plaintiff actually performed those jobs. (R. 738-740.) She
also listed several examples of other work that exists in the national economy that the
hypothetical person could perform, including ticket seller, hospital television rental clerk,
and call out operator. (R. 741.)
At the conclusion of the hearing, the ALJ stated that the evidentiary record would
be closed. (R. 745, 746.) Plaintiff’s attorney did not request that the record remain
open for the submission of any additional evidence.
C. Findings of the ALJ
The Plaintiff’s medical history as summarized by the ALJ is not in dispute. The
Commissioner adopts the facts as set forth by the ALJ with regard to Plaintiff’s medical
treatment and vocational history. (Doc. 15, at 3.) The ALJ’s findings reflect the
following. The ALJ found that Plaintiff had not engaged in substantial gainful activity
since December 15, 2004. (R. 17.) The ALJ noted that Plaintiff worked after the
alleged disability onset date, but that her reported income did not rise to the level of
substantial gainful activity.
The ALJ found at step two that Plaintiff had the following severe impairments:
asthma, status-post right carpal tunnel surgery, and bilateral knee pain. (R. 17.) The
ALJ also found that while Plaintiff had been diagnosed with non-insulin dependent
diabetes mellitus, obstructive sleep apnea, and hypertension, these conditions were

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well-controlled with medication and a CPAP device. (R. 18.) At step three, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that met
or equaled the listings. (R. 18.)
At step four, the ALJ determined that Plaintiff has the residual functional capacity
to perform light work, with the following restrictions: limited to occasional crawling; must
avoid climbing of ropes and scaffolds, and of ladders exceeding six feet; limited to
occasional pushing/ pulling with the lower bilateral extremities including the operation of
pedals, unless the pedal requires less than five pounds; occasional overhead reaching
and pushing/ pulling with the upper right extremity; must avoid prolonged exposure (6
hours of an 8-hour shift) to temperatures greater than 90 degrees Fahrenheit, joined
with wetness or humidity; must avoid moderate exposure (4 hours of an 8-hour shift) to
fumes, dusts, and gases; must avoid unprotected heights. (R. 18.)
In determining Plaintiff’s RFC, the ALJ first considered Plaintiff’s testimony at the
hearing. Plaintiff was 48 years old at the time of the hearing, and had previously
worked as a food packager and cashier. She testified that she suffered shortness of
breath and chest pain from her asthma, pain and swelling in both hands from carpal
tunnel syndrome, and pain in her knees due to her recently-diagnosed bilateral knee
arthritis. Plaintiff testified that her symptoms prevent her from performing daily activities
such as preparing meals, completing household chores, and taking care of her personal
needs.
With respect to Plaintiff’s asthma, the ALJ noted that while Plaintiff’s primary
care physician diagnosed her with asthma, medical records indicated a clear x-ray of

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Plaintiff’s lungs, and Plaintiff reported that her asthma was stable and controlled by
medication. (R. 19.) With respect to Plaintiff’s carpal tunnel syndrome, the ALJ
referenced records from Medero Medical that disclosed a full range of motion in the
right arm. The ALJ also referenced consultative examinations by Lawrence Field and
Vasantha Gona, who found the Plaintiff had normal fine manipulation abilities. (R. 19.)
With respect to Plaintiff’s knee pain, the ALJ found that the medical record “includes
evidence strongly suggesting that the claimant has exaggerated her symptoms and
limitations.” (R. 19.) The ALJ referenced records from Monroe Regional Medical
Center that showed mild degenerative changes, as well as consultative examinations
from Dr. Dantuluri P. Raju and Dr. Gona that noted that Plaintiff had a normal gait. (R.
19-20.) The ALJ also referenced a consultative examination by Dr. Andrew Petrella,
who found only mild degenerative changes in Plaintiff’s knees. (R. 20.)
The ALJ considered the opinion of Dr. Thomas Mohan,21 consultative physician,
but gave it little weight because the ALJ determined that the limitations identified by Dr.
Mohan were inconsistent with the overall medical evidence and inconsistent with
Plaintiff’s testimony at the hearing. The ALJ also considered the opinion of state
agency physician Dr. Gloria Hankins, and gave that opinion “some” weight. (R. 20.)
The ALJ determined that Plaintiff was able to perform her past relevant work as
a hand packager and cashier, as they were actually performed. (R. 21.) The ALJ relied
on the testimony of vocational expert Donna Mancini, who opined that in addition to
21

While the ALJ referred to Thomas Mohan as a doctor, it appears from the
medical records that he is actually a registered nurse practitioner. (R. 579.)
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these two unskilled, sedentary jobs, Plaintiff could perform “11,919 additional jobs in the
light and sedentary levels.” (R. 22.) Finally, the ALJ found that while Plaintiff had
previously used illicit drugs, it was unnecessary to determine if drug abuse was a
material contributing factor to the adjudication of disability, in light of the finding of no
disability. (R. 22.)
Plaintiff contends that the ALJ erred because 1) the ALJ failed to articulate good
cause for not crediting the opinion of Mr. Mohan, who opined that Plaintiff’s limitations
were more severe than noted in the RFC; 2) the ALJ failed to explain why he was not
crediting the opinion of the state agency medical expert, Dr. Hankins; and 3) the ALJ
failed to analyze Plaintiff’s alleged mental impairment, despite records submitted after
the hearing that indicated that Plaintiff was treated for depression.
IV. Discussion
A. The ALJ Gave Appropriate Weight to the Opinion of Thomas Mohan
Plaintiff argues that the ALJ erred by failing to articulate good cause for not
crediting the opinion of Thomas Mohan, who treated Plaintiff for asthma and referred
her to Dr. Reddy for further treatment. (R. 579-90, 550-71.) In July 2008, Mohan
completed a Functional Capacity Evaluation for Plaintiff, and opined that Plaintiff would
be limited to lifting five pounds occasionally, could stand or walk no more than one hour
in an eight-hour workday, and could rarely do any pushing or pulling, climbing, gross or
fine manipulation, bending, stooping, reaching, or operating a motor vehicle. As
previously noted, while the ALJ referred to Mohan as a physician, the medical records
indicate that he is actually a registered nurse practitioner (ARNP).
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In his opinion, the ALJ stated that he gave “little weight to Dr. Mohan’s opinion
because, not only is it inconsistent with the overall medical evidence, but it is also
inconsistent with the claimant’s allegations of limitations.” (R. 20.) Plaintiff argues that
the ALJ’s reasons for discounting Mohan’s opinions were “generic,” and asserts that
reversal is required in order for the ALJ to provide more specific reasons for discounting
this opinion.
It is well-established that substantial or considerable weight must be given to the
opinion, diagnosis and medical evidence of a treating physician unless “good cause” is
shown to the contrary.22 If a treating physician's opinion on the nature and severity of a
claimant's impairments is well-supported by medically acceptable clinical and laboratory
diagnostic techniques, and is not inconsistent with the other substantial evidence in the
record, the ALJ must give it controlling weight.23 The ALJ may discount a treating
physician's opinion or report regarding an inability to work if it is unsupported by
objective medical evidence or is wholly conclusory.24 Where a treating physician has
merely made conclusory statements, the ALJ may afford them such weight as is
supported by clinical or laboratory findings and other consistent evidence of a

22

Crawford v. Com m issioner of Social Security, 363 F. 3d 1155, 1159 (11 th Cir. 2004) (citing
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997)) (“W e have found ‘good cause’ to exist where the
doctor’s opinion was not bolstered by the evidence, or where the evidence supported a contrary finding.
W e have also found good cause where the doctors’ opinions were conclusory or inconsistent with their
m edical records.”). See also Edwards v. Sullivan, 937 F.2d 580, 583-584 (11 th Cir. 1991); Sabo v.
Com m issioner of Social Security, 955 F. Supp. 1456, 1462 (M.D. Fla.1996); 20 C.F.R. § 404.1527(d).
23

20 C.F.R. § 404.1527(d)(2).

24

Edwards, 937 F.2d at 584 (ALJ properly discounted treating physician's report where the
physician was unsure of the accuracy of his findings and statem ents).

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claimant's impairments.25
Because Mohan is a nurse practitioner and not a treating physician, the ALJ was
not required to evaluate his opinion as a treating physician’s statement. Nurse
practitioners are not an “acceptable medical source” who can offer medical opinions to
establish an impairment.26 However, the ALJ may consider evidence from nurse
practitioners to show the severity of impairments or how it affects a claimant’s ability to
work.27 Unlike treating physician evidence, the ALJ was not required to give any
particular weight to Mohan’s “other source” opinion.
Whether Mohan is a treating physician or a nurse practitioner, however, the
Court, nonetheless, concludes that the ALJ properly evaluated his opinion and did not
err in not assigning controlling weight to that opinion. Mohan’s Residual Functional
Capacity assessment is inconsistent with other record evidence, including other medical
records and Plaintiff’s testimony at the hearing about her impairments. While Mohan
opined that Plaintiff could rarely push or pull with her arms and legs, and could rarely
perform gross or fine manipulation, the ALJ correctly noted that medical records from
Medero Medical indicated that Plaintiff had a full range of motion in her right arm and
consultative examinations by Dr. Field and Dr. Gona indicated that Plaintiff had a
normal grip strength in her hands and normal abilities to perform fine manipulation. (R.

25

W heeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.1986); see also Schnorr v. Bowen, 816
F.2d 578, 582 (11th Cir.1987).
26

20 C.F.R. § 404.1513.

27

Id. at § (d)(2) (“we m ay also use evidence from other sources to show the severity of your
im pairm ent(s) and how it affects your ability to work. Other sources include” social workers.)

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576.)
Mohan’s assessment of Plaintiff’s abilities is also contradicted by Plaintiff’s
testimony at the hearing, in which she stated that she was able to stock small items in
her position as a cashier, and was able to lift bakery pans during her work as a bakery
helper. In her role at the bakery, Plaintiff further testified that she was able to pack
baked goods into small boxes and bags. (R. 701-02.) Finally, while Mohan opined that
Plaintiff would need to lay down or elevate her legs periodically throughout the day to
alleviate her pain, Plaintiff did not testify to this restriction and the restriction is
unsupported elsewhere in the medical records. Consultative examining physician Dr.
Gona found that Plaintiff had a normal gait with only a mild limp on one leg, and
Plaintiff’s treating physician Dr. Petrella noted improvement in Plaintiff’s knee pain with
Hyalgan injections. (R. 576, 619.)
The ALJ’s decision to decline to assign controlling weight to the opinion
expressed by Thomas Mohan regarding the effects of Plaintiff’s impairments is
supported by substantial evidence. Accordingly, the Court concludes that the ALJ did
not err in not assigning controlling weight to Mohan’s opinion. The Court further finds
that the ALJ adequately specified why he gave little weight to that opinion, noting that
Mohan’s assessment was inconsistent with the record evidence and Plaintiff’s
testimony.
B. The ALJ Did Not Err Regarding the Opinion of Dr. Gloria Hankins, a State
Agency Doctor
Dr. Gloria Hankins, state agency medical consultant, completed a Physical

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Residual Functional Capacity Assessment form after reviewing Plaintiff’s medical
records. (R. 636-43.) Dr. Hankins opined that Plaintiff was limited to occasionally lifting
20 pounds, frequently lifting 10 pounds, and standing or walking for six hours out of an
eight-hour workday. Dr. Hankins opined that Plaintiff could perform unlimited pushing
and pulling, but was limited to occasional climbing, balancing, stooping, kneeling,
crouching, and crawling. She also found that Plaintiff was limited in reaching in all
directions, handling and fingering, and feeling. Specifically, Dr. Hankins found that
Plaintiff would be limited to “frequent reaching, handling, fingering, & feeling.” (R. 639.)
The ALJ stated in his opinion that he gave “some weight” to Dr. Hankins’ opinion, and
summarized her findings. (R. 20.)
Plaintiff argues that the ALJ inadequately articulated reasons discounting Dr.
Hankins’ opinion. Specifically, Plaintiff contends that the ALJ should have incorporated
Dr. Hankins’ findings that Plaintiff was limited in her ability to reach in all directions and
was limited in her abilities in fingering and feeling. (Doc. 14, at 15-16.) However, Dr.
Hankins was a state agency physician who never personally examined Plaintiff. The
ALJ therefore was not required to place controlling weight on her opinion. The Eleventh
Circuit has “held that the ‘reports of physicians who do not examine the claimant, taken
alone, do not constitute substantial evidence on which to base an administrative
decision.’” Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985) (quoting Spencer
ex rel. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985)).
While Plaintiff argues that the ALJ erred by failing to include Dr. Hawkins’ opinion

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on her manipulative limitations, Plaintiff fails to note that in other areas, the ALJ actually
included more limitations in the RFC than were reflected in Dr. Hawkins’ report. For
example, Dr. Hawkins opined that Plaintiff could engage in unlimited pushing and
pulling, but the ALJ limited Plaintiff to occasional pushing and pulling with the lower
bilateral extremities and occasional pushing and pulling with the upper right extremity.
(R. 637, 18.) Similarly, while Plaintiff argues that the ALJ should have credited Dr.
Hankins’ opinion that Plaintiff was limited to frequent reaching, the ALJ actually stated
in the RFC that Plaintiff was limited to occasional overhead reaching—a greater
limitation than that suggested by Dr. Hankins. (R. 639, 18.) The ALJ was not required
to credit Dr. Hankins’ opinion that Plaintiff was limited to frequent fingering and feeling,
particularly in light of the other medical evidence and Plaintiff’s hearing testimony
discussed above. The Court therefore concludes that the ALJ’s review of Dr. Hankins’
opinion is supported by substantial evidence.
C. The ALJ Did Not Err I Failing to Consider Plaintiff’s Mental Impairment
As previously discussed, Plaintiff’s testimony at the ALJ hearing in December
2008 focused on the following impairments: carpal tunnel syndrome, asthma, and knee
pain. Plaintiff had not listed asthma as a disabling impairment in her initial application
for benefits, and the ALJ asked her a number of questions about her treatment for
asthma when the subject was raised at the hearing. (R. 704-06.) After discussing the
effects of these impairments with both the ALJ and her counsel, Plaintiff engaged in the
following discussion with her counsel:

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COUNSEL: Manuela, do you think there is anything that I haven’t asked
you about that the Judge would need to know before he makes a decision
on why we’re here today, why you don’t feel that you’re capable of
working?
PLAINTIFF: No.
COUNSEL: Do you think we’ve covered everything?
PLAINTIFF: Yeah, I think we covered everything.
(R. 729.) At the conclusion of the hearing, the ALJ asked Plaintiff’s counsel if there was
any need for “post hearing development,” and counsel stated that she was aware of no
such need. (R. 745.) The ALJ stated that he would close the evidentiary record at the
conclusion of the day’s hearing and prepare his decision. (R. 745, 746.)
Following the hearing, but prior to the ALJ’s issuance of his decision in July
2009, the ALJ received nine pages of records reflecting Plaintiff’s treatment for mental
health issues. (R. 625-33.) The records indicate that Plaintiff was treated for
depression at The Centers, Inc. on March 10, 2009 and April 27, 2009. The records
indicate that Plaintiff self-reported that she attempted to commit suicide in November
2008 and was “in CSU,” though there are no accompanying medical records related to
this suicide attempt. (R. 631.) The records do state that Plaintiff was prescribed
medication for depression in March 2009, and that the treating nurse Heidi Crowe
recommended that Plaintiff participate in substance abuse counseling and therapy. (R.
632.) When Plaintiff returned in April 2009, she reported that the “meds are helping”
and that she was no longer crying for no reason, and that she was sleeping well. (R.
625.)
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Plaintiff did not mention a suicide attempt or hospitalization at her December
2008 ALJ hearing, and never listed depression as a factor in her disability application.
In her original 2007 ALJ hearing, Plaintiff stated that she was not being treated for
depression. (R. 678.) There is no cover letter accompanying these documents
available in the record, and therefore no record that Plaintiff or her counsel requested
the ALJ to reopen the evidentiary record following the December 2008 hearing to
include records of this new impairment. There is also no record of Plaintiff’s counsel’s
brief to the Appeals Council following the ALJ’s decision—if such a brief was
submitted—so the Court is unable to conclude that Plaintiff requested the Appeals
Council to consider the mental health records. Plaintiff now argues that the ALJ erred
by failing to consider evidence of Plaintiff’s mental impairment, and that this error
justifies reversal and remand.
The Social Security regulations provide procedures for submitting evidence after
the ALJ has concluded a hearing, but before the final decision is entered. Generally, all
medical evidence must be submitted within five business days prior to the hearing. 20
C.F.R. § 405.331(a). If the claimant misses that deadline, and wishes
to submit evidence after the hearing and before the hearing decision is
issued, the administrative law judge will accept the evidence if you show
that there is a reasonable possibility that the evidence, alone or when
considered with the other evidence of the record, would affect the
outcome of your claim, and . . . [s]ome other unusual, unexpected, or
unavoidable circumstance beyond your control prevented you from
submitting the evidence earlier.
20 C.F.R. § 405.331(c). These regulations plainly apply to the mental health records in
this case. It does not appear, as no cover letter is included in the record, that Plaintiff
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or her counsel made any effort to show that there was a reasonable probability that the
mental health records would affect the outcome of Plaintiff’s claim. Presumably the fact
that the March and April 2009 records did not exist till after the hearing constitutes an
“unavoidable circumstance” that prevented Plaintiff from submitting the evidence
earlier. However, to this date there is no available record of Plaintiff’s alleged
November 2008 hospitalization for a suicide attempt other than a brief mention of the
self-reported incident in the March 2009 treatment notes. This incident occurred prior
to the December 2008 hearing, and Plaintiff has not provided any explanation, to the
Appeals Council or to this Court, as to why she was unable to submit the records of her
hospitalization to the ALJ. Plaintiff has also not explained why she never mentioned
her treatment for depression and recent hospitalization to the ALJ at the December
2008 hearing, even when asked if there were any other impairments that she wished to
discuss.
The Court finds that under these circumstances, because Plaintiff “did not meet
the requirements at § 405.331 in submitting [these records] after the hearing had
concluded, the ALJ was not required to consider that assessment in his opinion.”
Passafiume v. Comm’r of Soc. Sec., No. 1:12-cv-0795, 2012 WL 5611501, at *9 (N.D.
Ohio Nov. 15, 2012). This is not a case where the medical records in question related
to an impairment that Plaintiff had already raised in her application or discussed at the
hearing—rather, this was a completely new impairment. Cf. Savo v. Astrue, No. 3:10cv-1612, 2011 WL 5025488 (D. Conn. Oct. 21, 2011) (finding that the ALJ should have
considered late-submitted records that failed to comply with the requirements of §
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405.331 because those records related to a worsening of an impairment that the ALJ
had specifically found to be improving). Nor was the ALJ under a duty to develop the
record further with respect to Plaintiff’s mental impairments. See Kitts v. Apfel, 204
F.3d 785, 786 (8th Cir. 2000) (“Because [Plaintiff] did not allege a mental impairment in
her application or at the hearing, and because the record shows only a diagnosis of
anxiety and prescriptions for anti-anxiety medication . . . we find the ALJ was not on
notice of a need to develop the record further in that regard.”) (citing Sullins v. Shalala,
25 F.3d 601, 605 (8th Cir. 1994) for the proposition that the “ALJ ordinarily has no
obligation to investigate claims not presented at the time of application or not offered at
hearing”).
Because the medical records at issue here pertain to Plaintiff’s mental
impairments, which were not raised in her initial application for benefits and were not
raised at the ALJ hearing, the proper procedure here is for Plaintiff to file a new
application for benefits based on mental impairments. See Kapusta v. Sullivan, 900
F.2d 94, 94 (7th Cir. 1989) (“If [Plaintiff] has developed additional impairments since his
first application for benefits, he may file a new application.”); Sanchez v. Sec’y of Health
& Human Servs., 812 F.2d 509, 511-12 (where plaintiff’s psychological condition was
not at issue at the ALJ hearing, but Plaintiff presented evidence of mental deterioration
following the hearing, such evidence “would be material to a new application” and
plaintiff “followed the correct procedure by reapplying for benefits.”). Administrative res
judicata arising from the instant claim would not bar a new application. See Gregory v.

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Bowen, 844 F.2d 664, 666 (9th Cir. 1988) (“Because [Plaintiff’s new] application raised
the new issue of psychological impairments, it would be inappropriate to apply res
judicata to bar her claim.”).
V. CONCLUSION
In light of the foregoing it is ORDERED that the decision of the Commissioner is
AFFIRMED. The Clerk is directed to enter final judgment and close the file.
DONE AND ORDERED this 14th day of March 2013.

s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge

Case No. 1:11-cv-238-GRJ