MCFALLS v. ASTRUE
Filing
18
MEMORANDUM DECISION AND ORDER. Carolyn W. Colvin is substituted for Michael J. Astrue as Dft in this action. The decision of the Commissioner is AFFIRMED, that this action is DISMISSED, and that the clerk is directed to close the file. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on July 15, 2013. CAROLYN W COLVIN added. MICHAEL J ASTRUE (COMMISSIONER OF SOCIAL SECURITY) terminated. (kvg)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
ANTHONY KEITH McFALLS, JR.,
Plaintiff,
vs.
Case No.: 5:12cv35/EMT
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.
______________________________/
MEMORANDUM DECISION AND ORDER
This case has been referred to the undersigned magistrate judge for disposition pursuant to
the authority of 28 U.S.C. § 636(c) and FED. R. CIV. P. 73, based on the parties’ consent to
magistrate judge jurisdiction (see docs. 9, 10). It is now before the court pursuant to 42 U.S.C.
§ 405(g) of the Social Security Act (“the Act”), for review of a final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying Plaintiff’s application for
Supplemental Security Income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381–83.
Upon review of the record before this court, it is the opinion of the undersigned that the
findings of fact and determinations of the Commissioner are supported by substantial evidence; thus,
the decision of the Commissioner should be affirmed.
I.
PROCEDURAL HISTORY
On October 22, 2008, Plaintiff filed an application for SSI, and he alleged therein disability
beginning June 5, 2004, although he later amended the alleged onset date to October 22, 2008 (tr.
10).2 Plaintiff’s application was denied initially and on reconsideration, and he then requested a
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to
FED. R. CIV. P. 25(d), she is therefore automatically substituted for Michael J. Astrue as the Defendant in this case.
2
All references to “tr.” refer to the transcript of Social Security Administration record filed on June 14, 2012
(doc. 8). Moreover, the page numbers refer to those found on the lower right-hand corner of each page of the transcript,
as opposed to those assigned by the court’s electronic docketing system or any other page numbers that may appear.
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hearing before an administrative law judge (“ALJ”). A hearing was held on April 26, 2011, at which
Plaintiff was represented by counsel, and Plaintiff and a vocational expert testified (tr. 10). On May
11, 2011, the ALJ issued a decision in which he found Plaintiff “not disabled,” as defined under the
Act, at any time through the date of his decision (tr. 10–22). The Appeals Council subsequently
denied Plaintiff’s request for review (see tr. 1). Thus, the decision of the ALJ stands as the final
decision of the Commissioner, subject to review in this court. Ingram v. Comm’r of Soc. Sec.
Admin., 496 F.3d 1253, 1262 (11th Cir. 2007). This appeal followed.
II.
FINDINGS OF THE ALJ
On May 11, 2011, the ALJ made several findings relative to the issues raised in this appeal
(see tr. 10–22):
1)
Plaintiff has not engaged in substantial gainful activity since October 22, 2008, the
amended alleged onset date and the date he filed his application for SSI.3
2)
Plaintiff has the following severe impairments: thoracolumbar scoliosis, major
depressive disorder, pain disorder, delusional disorder, intermittent explosive
disorder, and posttraumatic stress disorder.
3)
Plaintiff has no impairment or combination of impairments that meets or medically
equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
4)
Plaintiff has the residual functional capacity (“RFC”) to perform light work as
defined in 20 C.F.R. § 416.967,4 with the additional limitations of no climbing
ladders, ropes, or scaffolds; only occasional balancing, stooping, kneeling,
crouching, crawling, or climbing ramps and stairs; no concentrated exposure to
workplace hazards such as hazardous machinery and unprotected heights; and no
3
The time frame relevant to Plaintiff’s claim for SSI is October 22, 2008 (amended alleged onset date), through
May 11, 2011 (date of ALJ’s decision). See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (noting that SSI
claimant becomes eligible to receive benefits in the first month in which he is both disabled and has an SSI application
on file).
4
Light work is defined in 20 C.F.R. § 416.967(b) as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do substantially all of these activities.
If someone can do light work, we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
Case No.: 5:12cv35/EMT
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work that requires more than simple, repetitive, and routine tasks, with only
occasional interaction with co-workers and supervisors.
5)
6)
Plaintiff was born on May 15, 1978, and was thirty years of age on the date he
applied for SSI, and thus he is considered a “younger individual” (see 20 C.F.R.
§ 416.963(c) (defining younger individual as one between the ages of 18 and 49 and
noting that such age(s) generally will not seriously affect the person’s ability to
adjust to other work)).
7)
Plaintiff has a limited education and is able to communicate in English.
8)
Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that Plaintiff
is “not disabled,” whether or not he has transferable job skills.
9)
III.
Plaintiff is unable to perform any of his past relevant work.
Considering Plaintiff’s age, education, work experience, and RFC, there are jobs
existing in significant numbers in the national economy that Plaintiff can perform;
Plaintiff, therefore, was not disabled, as defined in the Act, between October 22,
2008, and May 11, 2011.
STANDARD OF REVIEW
Review of the Commissioner’s final decision is limited to determining whether the decision
is supported by substantial evidence from the record and was a result of the application of proper
legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may
reverse the decision of the [Commissioner] only when convinced that it is not supported by
substantial evidence or that proper legal standards were not applied.”); see also Lewis v. Callahan,
125 F.3d 1436, 1439 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A
determination that is supported by substantial evidence may be meaningless . . . if it is coupled with
or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),
superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214
(11th Cir. 1991). As long as proper legal standards were applied, the Commissioner’s decision will
not be disturbed if in light of the record as a whole the decision appears to be supported by
substantial evidence. 42 U.S.C. § 405(g); Falge, 150 F.3d at 1322; Lewis, 125 F.3d at 1439; Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a scintilla, but
not a preponderance; it is “such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.
Case No.: 5:12cv35/EMT
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2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L.
Ed. 126 (1938)); Lewis, 125 F.3d at 1439. The court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates against the
Commissioner’s decision, the decision must be affirmed if supported by substantial evidence.
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
The Act defines a disability as an “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. § 423(d)(1)(A). To qualify as a disability the physical or mental impairment
must be so severe that the claimant is not only unable to do his previous work, “but cannot,
considering his age, education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” Id. § 423(d)(2)(A).
Pursuant to 20 C.F.R. § 404.1520(a)–(g),5 the Commissioner analyzes a disability claim in
five steps:
1.
If the claimant is performing substantial gainful activity, he is not disabled.
2.
If the claimant is not performing substantial gainful activity, his impairments must
be severe before he can be found disabled.
3.
If the claimant is not performing substantial gainful activity and he has severe
impairments that have lasted or are expected to last for a continuous period of at least twelve
months, and if his impairments meet or medically equal the criteria of any impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1, the claimant is presumed disabled without further inquiry.
4.
If the claimant’s impairments do not prevent him from doing his past relevant work,
he is not disabled.
5
In general, the legal standards applied are the same regardless of whether a claimant seeks Disability Insurance
Benefits (“DIB”) or SSI, but separate, parallel statutes and regulations exist for DIB and SSI claims (see 20 C.F.R.
§§ 404, 416). Therefore, citations in this Order should be considered to refer to the appropriate parallel provision. The
same applies to citations of statutes or regulations found in quoted court decisions.
Case No.: 5:12cv35/EMT
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5.
Even if the claimant’s impairments prevent him from performing his past relevant
work, if other work exists in significant numbers in the national economy that accommodates his
RFC and vocational factors, he is not disabled.
The claimant bears the burden of establishing a severe impairment that keeps him from
performing his past work. 20 C.F.R. § 404.1512. If the claimant establishes such an impairment,
the burden shifts to the Commissioner at step five to show the existence of other jobs in the national
economy which, given the claimant’s impairments, the claimant can perform. MacGregor v. Bowen,
786 F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner carries this burden, the claimant must
then prove he cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d
1007, 1011 (11th Cir. 1987).
IV.
PLAINTIFF’S MEDICAL HISTORY6
As previously noted, the time frame relevant to this appeal is October 22, 2008, through May
11, 2011. There are, however, no treatment records in the file—as to Plaintiff’s physical or mental
conditions—from the relevant time frame, although there are records from various consultative
examiners and non-examining agency experts from the relevant time. The court will nevertheless
discuss all of the available evidence in order to fully describe Plaintiff’s impairments.
A.
Plaintiff’s Physical Impairments
Evidence that pre-dates the time frame relevant to this appeal
Plaintiff was involved in two motor vehicle accidents (“MVAs”) well before the alleged
onset date, and he received care at an emergency room (“ER”) following each accident. The ER
records related to the first MVA, which occurred in October 2002, reveal that Plaintiff presented
with complaints of headaches, dizziness, a nosebleed, pain and spasms in his left arm, and back and
hip pain that was radiating down his right leg. Computerized tomography (“CT”) scans were
obtained of the lumbar spine, right hip, and brain, and all resulted in negative findings. ER records
from June 2004, following the second MVA, reflect that Plaintiff complained of lower back pain and
rated its severity at a five on a ten-point scale. Plaintiff was discharged with pain medications and
instructed to follow-up with his primary care physician in two to three days. Approximately one
6
Unless otherwise noted, the information in this section is derived from the ALJ’s opinion (tr. 10–22).
Case No.: 5:12cv35/EMT
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month later, magnetic resonance imaging (“MRI”) scans of the thoracic and lumbar spine were
obtained and revealed minimal thoracolumbar scoliosis, possibly positional in nature (tr. 218), but
no other significant findings or abnormalities (tr. 16).
In August 2004, Plaintiff was referred to a neurologist to rule out lumbosacral radiculopathy
because of his continued complaints of lower back pain radiating to his right leg. An electrophysiological examination revealed no evidence of lumbosacral radiculopathy and otherwise was
within normal limits. Due to his complaints of pain, however, Plaintiff was referred for physical
therapy (“PT”).
Plaintiff began PT on August 16, 2004 (tr. 225). He reported difficulty lifting and caring for
his baby, bending over to the floor, and putting on slacks and socks. Plaintiff’s range of motion was
within normal limits in all upper and lower extremities, and his strength was full and within normal
ranges in his upper extremities and nearly full (4/5 or 4+/5) or full (5/5) in his lower extremities (tr.
225–26). Additionally, Plaintiff’s reflexes were “equal and active bilaterally” in the lower
extremities (tr. 226). Plaintiff displayed some tenderness to palpation and reduced range of motion
in his back, and he reported that pain limited further movement (tr. 226–27). Plaintiff returned for
seven PT sessions between August 19 and September 3, 2004, at which time he was noted to be
“slightly improved” (tr. 236–37). Treatment notes reflect that, on September 3, 2004, Plaintiff was
discharged because he had demonstrated an “ability to modify essential activities of daily living, to
safely compensate for residual impairment while reducing the risk of re-injury” and an
understanding of his home exercise instructions (tr. 236). The PT notes also reflect that Plaintiff
would be sent back to his referring physician for a reassessment, as Plaintiff had not “progress[ed]
as anticipated” (id.).
Plaintiff presented to Merle P. Stringer, M.D., a neurologist, at or near the end of his PT (tr.
245–46). Dr. Stringer, who noted the reduced range of motion in Plaintiff’s back, administered a
paravertebral block and lumbar facet injection on September 29, 2004, which—Plaintiff
reported—worsened his symptoms (tr. 246). Following an essentially normal physical examination
and a review of spinal MRI results (which showed some minor disc bulging but no significant nerve
root compression or spinal stenosis), Dr. Stringer opined there was no further treatment he could
provide from a neurosurgical standpoint (tr. 245; see also tr. 244 (MRI results)). He also opined that
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Plaintiff had reached maximum medical improvement, and he assessed a seven percent impairment
rating to Plaintiff’s “whole person” based on his lower back symptomatology (tr. 245). Dr. Stringer
referred Plaintiff to Iqbal A. Faruqui, M.D., Plaintiff’s primary care physician (id.).
Although the treatment notes are illegible, it appears that Plaintiff saw Dr. Faruqui on three
occasions in 2004 and on one occasion in January 2005 (tr. 239–42). It also appears that Dr. Faruqui
administered or recommended conservative treatment for Plaintiff’s back condition, such as the use
of transcutaneous electrical nerve stimulation (i.e., a “TENS unit”) and Flexeril (see tr. 236).
Evidence from the time frame relevant to this appeal
On February 4, 2009, at the request of the Social Security Administration (“SSA”), Plaintiff
underwent a consultative physical examination by Dr. Faruqui (tr. 248–52). Plaintiff described his
back pain as constant and stated it was aggravated by activity but lessened with the use of a TENS
unit or over-the-counter pain medication (tr. 248–50). A physical examination revealed positive
straight leg raising tests, negative deep tendon reflex tests, and tenderness over the spinal column
and paraspinal muscles, with muscle spasm (tr. 251). Dr. Faruqui noted Plaintiff’s unremarkable
MRI and neurological work-up, as well as Plaintiff’s report of unsuccessful trigger point injections,
but he offered no specific assessment or recommendation as to Plaintiff’s condition or physical
capacities (see tr. 251–52).
On February 25, 2009, Donald Morford, M.D., a non-examining agency physician,
completed a physical RFC assessment (tr. 253–60). He opined that Plaintiff can occasionally and
frequently lift or carry ten pounds, and he can stand or walk two hours in an eight-hour workday and
sit six hours in a workday (tr. 254). He also opined that Plaintiff can push or pull without limit but
is occasionally limited with regard to postural activities, such as climbing ramps or stairs, balancing,
stooping, kneeling, crouching, or crawling, although Plaintiff is totally restricted from climbing
ladders, ropes or scaffolds (tr. 254–55). Additionally, Dr. Morford opined that Plaintiff has no
manipulative, visual, communicative, or environmental limitations, with one exception (that is, that
Plaintiff must avoid concentrated exposure to hazards such as machinery or heights) (tr. 256–57).
Dr. Morford noted that although Plaintiff’s reports of back pain are “persistent and well
documented,” Plaintiff appears to have slightly exaggerated his symptoms (tr. 258).
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In October 2009, Plaintiff was examined by Stanford A. Williamson, D.O., at the request of
the SSA (tr. 289–95). Range of motion testing of the cervical and lumbar spine revealed no deficits,
although Plaintiff was tender to touch at certain areas (tr. 291). And range of motion testing of the
upper and lower extremities, bilaterally, revealed no deficits (id.). Plaintiff’s entire neurological
testing was normal and revealed, in pertinent part, negative straight leg raising tests and full strength,
bilaterally, in the upper and lower extremities (id.). Dr. Williamson also noted that Plaintiff walked
on his toes “with ease” and needed no assistive device (tr. 291). He assessed chronic thoracic and
lumbar back pain without any signs of radiculopathy (id.).
On December 14, 2009, a second non-examining agency physician completed a physical
RFC assessment (tr. 315–22). Clarence Louis, M.D., opined that Plaintiff can occasionally lift or
carry twenty pounds and frequently lift or carry ten pounds, stand or walk six hours in an eight-hour
workday, and sit six hours in a workday (tr. 316). He also opined that Plaintiff can push or pull
without limit and has no postural, manipulative, visual, communicative, or environmental limitations
(tr. 316–19). Dr. Louis noted that in reaching his opinions he considered that Plaintiff appeared to
have exaggerated the severity of his symptoms (see tr. 320).
B.
Plaintiff’s Mental Impairments (all evidence is from the relevant time frame)
In March 2009, at the request of the SSA, Plaintiff underwent a consultative psychological
evaluation by Dr. George L. Horvat, Ph.D. (tr. 262–65). Plaintiff reported a prior history of mental
health treatment when he was imprisoned in Georgia in 1998, which did not result in any in-patient
treatment and is apparently the only mental health treatment he ever received (tr. 263). Plaintiff
noted that his chief complaint was “back problems,” for which he took Tylenol and ibuprofen (tr.
262–63).
Based on Dr. Horvat’s clinical interview, behavioral observations, mental status
examination, review of available records, and test results, Dr. Horvat diagnosed Plaintiff with
posttraumatic stress disorder, pain disorder, major depressive episode (severe), and delusional
disorder (persecutory type) (tr. 264–65). Dr. Horvat recommended treatment but noted that any
treatment program could be scheduled around Plaintiff’s work commitments and that there were “no
psychological reasons why [Plaintiff could not] work” (tr. 265).
In May 2009, Steven Wise, Psy.D., a non-examining agency psychologist, completed a
mental RFC assessment (tr. 266–69). Dr. Wise evaluated Plaintiff’s capacities in twenty areas of
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functioning and concluded that Plaintiff is “not significantly limited” in fifteen areas and
“moderately limited” in five areas (tr. 266–67). He also opined that Plaintiff can “complete a normal
workweek without excessive interruptions from psychologically based symptoms,” but Plaintiff
should likely be limited to “simpler tasks” and—although Plaintiff can relate to coworkers and
supervisors—he may have some difficulty with supervisors (tr. 268). Dr. Wise also completed a
Psychiatric Review Technique form (“PRTF”), on which he evaluated Plaintiff’s psychiatric
condition under Section (or “Listing”) 12.03 of 20 C.F.R. Part 404, Subpart P, Appendix 1
(Psychotic Disorders), Listing 12.04 (Affective Disorders), and Listing 12.06 (Anxiety-Related
Disorders) (tr. 270–83). Dr. Wise assessed delusional disorder, major depressive disorder, and posttraumatic stress disorder under the three listings, respectively, but opined that none of the disorders
satisfy the diagnostic criteria of those listings (tr. 272, 273, 275). With regard to the “B Criteria”
of Listings 12.03, 12.04, and 12.06, Dr. Wise opined that Plaintiff has mild restrictions in activities
of daily living, moderate restrictions in maintaining social functioning and concentration, persistence
or pace, and no episodes of decompensation (tr. 280). Dr. Wise also noted that Plaintiff’s conditions
do not satisfy the “C Criteria” of the three listings (see tr. 281).
Dr. Horvat examined Plaintiff a second time, on October 19, 2009, again at the request of
the SSA (tr. 285–88). Dr. Horvat amended his diagnoses to include intermittent explosive disorder,
apparently based on Plaintiff’s reported inability get along with other people. Dr. Horvat also
assessed a “current GAF” of 50,7 and he continued to opine that Plaintiff is capable of work from
a psychological standpoint (tr. 288).
On December 10, 2009, Judith E. Meyers, Psy.D., a non-examining agency psychologist,
completed a PRTF form (tr. 297–314). She assessed delusional disorder (persecutory type), major
depressive disorder (recurrent, moderate), posttraumatic stress disorder, pain disorder, and
7
Global assessment of functioning, or GAF, is the overall level at which an individual functions, including
social, occupational, academic, and other areas of personal performance. American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders 30–32 (4th ed. 1994) (“DSMM - IV”). It may be expressed as a numerical
score. Id. at 32. A score between 41 and 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable
to keep a job). Id. . A score between 51 and 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts
with peers or co-workers). Id.
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intermittent explosive disorder, and she evaluated these conditions under Listings 12.03, 12.04,
12.06, 12.07 (Somatoform Disorders), and 12.08 (Personality Disorders), respectively (tr. 299, 300,
302, 303, 304). With regard to the “B Criteria” of each of the five listings, Dr. Meyers opined that
Plaintiff has no restrictions in activities of daily living, moderate restrictions in maintaining social
functioning, mild restrictions in maintaining concentration, persistence or pace, and no episodes of
decompensation (tr. 307). Dr. Meyers also noted that Plaintiff’s conditions do not satisfy the “C
Criteria” of Listings 12.03, 12.04, and 12.06 (see tr. 308). Finally, Dr. Meyers completed a mental
RFC assessment form (tr. 311–14). She evaluated Plaintiff’s capacities in twenty areas of
functioning and concluded that Plaintiff is “not significantly limited” in eighteen areas and
“moderately limited” in two areas (tr. 311–12).
V.
DISCUSSION
Plaintiff raises several claims in this appeal, which will be discussed in the following order.
First, Plaintiff contends the ALJ erred in discounting his subjective complaints of pain and other
symptoms (doc. 12 at 15–19). Second, Plaintiff contends the ALJ erred in failing to resolve conflicts
between the opinions of Dr. Morford and Dr. Louis (id. at 19–20). Third, Plaintiff claims the ALJ
erred in assigning significant weight to the opinion Dr. Horvat (rendered on two occasions) that
there are no psychological reasons that prevent Plaintiff from working (id. at 10–11). And fourth,
Plaintiff contends the ALJ erred in determining his mental RFC, because the RFC does not include
“a portion of the findings of Dr. Horvat, Dr. Wise, and Dr. Meyers” (id. at 9, 11–15).
A.
Evaluation of Plaintiff’s Subjective Complaints
Plaintiff testified at his hearing before the ALJ that he cannot work due to back pain (tr. 37).
He also claimed that due to his pain he cannot walk more than 100 yards or “sit long,” it is a “chore
to go the bathroom some days by [him]self,” and he cannot “half wash [him]self” (tr. 37, 42).
Plaintiff testified that since the MVA (he did not indicate which MVA) he “constantly [has]
headaches,” and at least four times a week he has muscle spasms in his back and legs that last
“generally all night” and are “so bad [he] can’t even sleep in the bed with [his] wife because they
wake her up” (tr. 45). He reported that although his primary barrier to employment is back pain, his
“explosive attitude” raises serious doubts about his ability to hold a job, as it has “cost him about
every job [he has] ever had” (tr. 37). Plaintiff stated he spends his days lying or sitting, but he also
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goes fishing about four or five times a year and shopping with his wife, although he claimed when
he shops he needs to ride in a motorized cart (see tr. 38, 41–42). He also stated that until one week
prior to his hearing he picked his son up from school every day; he recently stopped picking him up
only because the family moved and his son can now ride the school bus, but Plaintiff nevertheless
remains capable of driving short distances (tr. 41–42). He testified that he performs no yard work
or home maintenance and does not cook (tr. 39, 41–43). Finally, Plaintiff stated that he stays “sick
to his stomach all the time since the car accident,” but he does not know what causes this sickness,
and he has not sought or obtained treatment for it because he cannot afford to do so (tr. 46–47).
After considering this testimony, the ALJ rejected the parts of it, which—if believed—would
preclude sustained, competitive work activity. Plaintiff contends the ALJ erred in doing so but, for
the reasons discussed below, the undersigned finds Plaintiff’s contention unavailing.
Pain and other subjective complaints are treated by the Regulations as symptoms of
disability. Title 20 C.F.R. § 404.1529 provides in part that the Commissioner will not find disability
based on symptoms, including pain alone, “. . . unless medical signs or findings show that there is
a medical condition that could be reasonably expected to produce these symptoms.” The Eleventh
Circuit has articulated a three-part pain standard, sometimes referred to as the Hand test, as follows:
In order to establish a disability based on testimony of pain and other symptoms, the
claimant must satisfy two parts of a three-part test showing: (1) evidence of an
underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.
Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir. 1986) (originally adopting the three-part pain
standard). The Eleventh Circuit continues to follow the Hand test. Wilson v. Barnhart, 284 F.3d
1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); Ogranaja
v. Commissioner of Social Security, 186 F. App’x 848, 2006 WL 1526062, at *3 (11th Cir. June 5,
2006) (quoting Wilson); Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1216 (11th Cir. 1991).
Underlying the Hand standard is the need for a credibility determination concerning a
plaintiff’s complaints. Those complaints are, after all, subjective. “[T]he ascertainment of the
existence of an actual disability depend[s] on determining the truth and reliability of [a claimant’s]
complaints of subjective pain [or other symptom].” Scharlow v. Schweiker, 655 F.2d 645, 649 (5th
Cir. Sept. 1981) (holding that the ALJ must resolve “the crucial subsidiary fact of the truthfulness
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of subjective symptoms and complaints”).8 People with objectively identical conditions can
experience significantly different levels of pain, and pain is more readily treated in some than in
others. “Reasonable minds may differ as to whether objective medical impairments could
reasonably be expected to produce [the claimed symptom]. This determination is a question of fact
which, like all factual findings by the [Commissioner], is subject only to limited review in the courts
to ensure that the finding is supported by substantial evidence.” Hand, 761 F.2d at 1548–49. It is
within the ALJ’s “realm of judging” to determine whether “the quantum of [symptoms a claimant]
allege[s] [is] credible when considered in the light of other evidence.” Arnold v. Heckler, 732 F.2d
881, 884 (11th Cir. 1984). The evidence as a whole, including the existence of corroborating
objective proof or the lack thereof, and not just a physician’s belief or the plaintiff’s claims, is the
basis for the ALJ’s credibility determination.
Finally, “[i]f the Commissioner refuses to credit [subjective testimony of the claimant] he
must do so explicitly and give reasons for that decision. . . . Where he fails to do so we hold as a
matter of law that he has accepted that testimony as true.” MacGregor, 786 F.2d at1054; Holt, 921
F.2d at 1223. “Although this circuit does not require an explicit finding as to credibility, . . . the
implication must be obvious to the reviewing court. The credibility determination does not need to
cite particular phrases or formulations but it cannot merely be a broad rejection which is not enough
to enable [the district court or this Court] to conclude that [the ALJ] considered [plaintiff’s] medical
condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (internal quotations
and citations omitted). The reasons articulated for disregarding the plaintiff’s subjective pain
testimony must be based upon substantial evidence. Jones v. Dep’t of Health and Human Serv’s,
941 F.2d 1529, 1532 (11th Cir. 1991).
Here, the ALJ identified several reasons for his decision to discount the more extreme of
Plaintiff’s complaints, including the following reasons. The ALJ first noted that Plaintiff’s
testimony was internally inconsistent. For example, the ALJ found that Plaintiff’s reported inability
to “sit long” was inconsistent with his testimony that he spends his days sitting or lying around the
house (tr. 15). Plaintiff’s alleged limited ability to sit is also inconsistent with his reported ability
8
Decisions of the United States Court of Appeals for the Fifth Circuit decided on or before September 30, 1981
are binding precedent in the Eleventh Circuit. Bonner v. Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
Case No.: 5:12cv35/EMT
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to ride on motorized carts while shopping. The ALJ additionally found that Plaintiff’s ability to go
fishing when he so desires, pick up his son every day from school, and shop, are inconsistent with
his allegations of extreme and disabling physical limitations (tr. 15). Next, the ALJ noted that
Plaintiff received absolutely no medical treatment since 2005 (tr. 16). Indeed, as detailed supra,
Plaintiff’s last medical appointment was in January of 2005, which is nearly four years prior to the
date Plaintiff alleges he became disabled. Similarly, the ALJ pointed to Plaintiff’s total failure to
ever seek any form of mental health treatment (other than during his incarceration), much less than
during the time frame relevant to this appeal, and found that such failure undermines any claim of
truly disabling mental limitations (see tr. 16). The ALJ did not err in discrediting Plaintiff’s
complaints based on his daily activities and lack of physical or mental health treatment. See Watson
v. Heckler, 738 F.2d 1169, 1173 (11th Cir. 1984) (in addition to objective medical evidence, it is
proper for ALJ to consider use of painkillers, failure to seek treatment, daily activities, conflicting
statements, and demeanor at the hearing); Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995)
(failure to seek medical treatment for a long time during a claimed period of disability tends to
indicate tolerable pain); Williams v. Sullivan, 960 F.2d 86, 89 (8th Cir. 1992) (absence of treatment
indicates that a mental impairment is non-severe).
Continuing, the ALJ noted that no treating physician imposed, specified, or recommended
any restrictions, as would be expected if Plaintiff is as limited as he alleges (tr. 16). This, too, was
a factor properly considered by the ALJ. See, e.g., Posey v. Astrue, No. 3:07cv356/MCR/EMT,
2008 WL 4187003, at *11 (Sept. 5, 2008) (ALJ properly considered that claimant’s treating
physician imposed no specific functional limitations resulting from her impairments) (citing Brown
v. Chater, 87 F.3d 963, 964–65 (8th Cir. 1996)); Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir.
2000) (“We find it significant that no physician who examined Young submitted a medical
conclusion that she is disabled and unable to perform any type of work.”) (citation omitted);
Singleton v. Astrue, 542 F. Supp. 2d 367, 378–79 (D. Del. 2008) (in evaluating a plaintiff’s
credibility, ALJ did not err in considering, among other factors, that “none of [p]laintiff’s treating
physicians identified any specific functional limitations arising from her fibromyalgia or other
conditions that would render her totally disabled”). Indeed, the fact that no physician has opined that
Plaintiff is disabled, alone, might be considered substantial evidence for the ALJ’s decision. See
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Rice v. Apfel, 990 F. Supp. 1289, 1294 (D. Kan 1997) (citing Ray v. Bowen, 865 F.2d 222, 226
(10th Cir. 1989)).
Next, the ALJ considered that the objective medical evidence fails to confirm or otherwise
substantiate the disabling limitations alleged by Plaintiff (tr. 16). In support, the ALJ first pointed
to the treatment records that predate the alleged onset date of October 22, 2008, including: (1) ER
records, which include negative CT scans; (2) spinal MRI results, which reveal only minimal
thoracolumbar scoliosis and no other significant findings or abnormalities; (3) the results of
neurological testing, which rule out radiculopathy and are otherwise within normal limits; and (4)
Dr. Stringer’s essentially normal physical examination (see tr. 16–17).9 The ALJ then pointed to
evidence from the relevant time frame, which evidence—incidentally—exists only because the
Commissioner referred Plaintiff for consultative examinations and solicited the opinions of nonexamining agency physicians and psychologists. With regard to Plaintiff’s complaints of extreme
physical limitations, the ALJ noted that Dr. Williamson’s examination in October 2009 was
essentially normal (tr. 18). He also noted that both non-examining agency physicians, Dr. Morford
and Dr. Louis, opined in 2009 that Plaintiff is physically able to work (tr. 18–19). Although the nonexamining physicians’ opinions are not identical, both of their opinions are nevertheless inconsistent
with the extreme limitations reported by Plaintiff, as the ALJ noted.
For example, Dr.
Morford—whose opinions are more restrictive than those offered by Dr. Louis—concluded that
Plaintiff can sit six hours in an eight-hour workday and stand or walk for two hours. These opinions
directly contradict Plaintiff’s testimony that he cannot “sit long” or walk more than 100 yards. The
ALJ also noted that Dr. Morford and Dr. Louis both indicated that Plaintiff had exaggerated his
symptoms (tr. 19). With regard to Plaintiff’s mental limitations, the ALJ considered the opinions
of Dr. Horvat, who opined that there are no psychological barriers to Plaintiff’s employment, and
the opinions of Dr. Wise and Dr. Meyers, both of whom assessed only minimal functional
limitations and found Plaintiff capable of working (see tr. 18–19).
9
The ALJ acknowledged that Plaintiff’s PT records reveal some deficits in Plaintiff’s physical abilities, but the
ALJ also observed—correctly—that during his PT (in August and September of 2004) Plaintiff learned to modify his
daily activities to account for these deficits and reduce the risk of re-injury (tr. 16–17).
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In conclusion, because the ALJ articulated the inconsistencies on which he relied in
discrediting Plaintiff’s complaints of disabling limitations, and because the ALJ’s reasons are
supported by substantial evidence on the record as a whole, the ALJ’s credibility finding should not
be disturbed.
B.
Opinions of Dr. Morford and Dr. Louis, Non-Examining Agency Experts
Plaintiff next contends the ALJ erred in failing to resolve conflicts between the opinions of
Dr. Morford, who generally opined that Plaintiff is capable of performing sedentary work, and Dr.
Louis, who generally opined that Plaintiff is capable of performing light work (doc. 12 at 19–20).
Again, however, Plaintiff’s contention is unconvincing.
The ALJ gave “substantial weight” to the opinions of Dr. Louis, and he gave “less than
significant weight” to the opinions of Dr. Morford (tr. 17–18). In support, the ALJ found that Dr.
Louis’ opinions are more consistent with the evidence of record, which evidence—as discussed in
the preceding section—is unremarkable and fails to substantiate any significant functional
limitations (tr. 18). Importantly, however, the ALJ did not fully or blindly adopt Dr. Louis’ opinions
over those of Dr. Morford; rather, he included in Plaintiff’s RFC limitations that are greater than
those assessed by Dr. Louis and consistent with those assessed by Dr. Morford. For example, Dr.
Louis opined that Plaintiff has no environmental or postural limitations, but the RFC restricts
Plaintiff from certain environmental workplace hazards and postural activities, such as climbing
ladders, ropes or scaffolds (which restrictions are nearly identical to the environmental and postural
limitations assessed by Dr. Morford). Thus, although the ALJ assigned less weight to Dr. Morford’s
opinions, it is evident that the ALJ did not wholly reject them or, conversely, wholly adopt the
opinions of Dr. Louis. Rather, the ALJ carefully considered both opinions and determined that,
overall, Dr. Louis’ opinions were more consistent with the record as a whole. Therefore, the ALJ
did not err in failing to reconcile differences in the opinions of Dr. Morford and Dr. Louis, or by
failing to explain why he did so, as Plaintiff alleges. The ALJ also did not err in concluding that
Plaintiff is capable of performing light work, as Dr. Louis opined, with certain environmental and
Case No.: 5:12cv35/EMT
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postural restrictions, as generally assessed by Dr. Morford,10 as these conclusions are well supported
by substantial evidence on the record as a whole.
C.
Opinions of Dr. Horvat
Plaintiff claims the ALJ erred by assigning significant weight to the opinion of Dr. Horvat
(that from a psychological standpoint, Plaintiff is not precluded from work). In support, Plaintiff
asserts that Dr. Horvat is a treating physician, and that his treatment records do not support his
opinion that Plaintiff’s mental limitations would not preclude him from work (doc. 12 at 10).
Initially, Plaintiff’s characterization of Dr. Horvat as a “treating physician” is erroneous.
Plaintiff was referred to Dr. Horvat by the Commissioner on two occasions for consultative
examinations. Thus, Dr. Horvat is considered a “nontreating source.” See 20 C.F.R. § 404.1502 (a
nontreating source is a “physician, psychologist, or other acceptable medical source who has
examined you but does not have, or did not have, an ongoing treatment relationship with you,”
including “an acceptable medical source who is a consultative examiner for us, when the
consultative examiner is not your treating source”); see also Bowman v. Comm’r, Soc. Sec. Admin.,
CIV. 99-1311-JO, 2001 WL 215790, at *4 (D. Or. Feb. 23, 2001) (“The key issue in determining
whether Dr. Gordon was claimant’s treating physician is whether his examinations of her were
prompted by her need for treatment) (citing 20 C.F.R. § 404.1502); Duke v. Astrue, No.
3:09cv412/MCR/EMT, 2010 WL 3055327 (N.D. Fla. July 16, 2010), report and recommendation
adopted, 3:09CV412 /MCR/EMT, 2010 WL 3055334 (N.D. Fla. Aug. 3, 2010) (one-time
consultative examiner is not a treating physician). Likewise, Dr. Horvat’s reports are not “treating
10
While it is true that the ALJ erroneously referred to Dr. Morford as a “one-time examining physician,” as
Plaintiff points out (doc. 12 at 19 (citing tr. 17)), the error does not affect the ALJ’s conclusions or this court’s findings.
To be sure, after mischaracterizing Dr. Morford’s status as an examining physician, the ALJ believed that Dr. Morford’s
opinions were entitled to more weight than those of Dr. Louis, a non-examining physician. Thus, the ALJ considered
very closely the opinions of Dr. Morford, and he carefully explained why he assigned less weight to them. Had the ALJ
properly characterized Dr. Morford’s status—that is, as a non-examining agency physician—he would have known that
his opinions were (at least initially) entitled to the same weight as those of Dr. Louis, and there can be no doubt he would
have again found the opinions of Dr. Louis more persuasive. See, e.g., 20 C.F.R. § 404.1527 (every medical opinion
should be evaluated, and unless a treating source’s opinion is given controlling weight, the following factors are
considered in deciding the weight to be given to any medical opinion: examining versus non-examining; treatment
relationship (treating sources are given more weight), including length of the treatment relationship, frequency of
examination, and the nature and extent of the treatment relationship; supportability of the opinion(s); consistency with
the record as a whole; specialization; and “other factors”).
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records,” as Plaintiff contends. But regardless of Dr. Horvat’s status as a treating or nontreating
source, Plaintiff has not established entitlement to relief on this claim.
Plaintiff claims the ALJ erred by accepting “Dr. Horvat’s opinion that he is not precluded
from working, without taking into account Dr. Horvat’s diagnoses or observations and how they
would affect Plaintiff’s ability to work” (doc. 12 at 11). It is clear that the ALJ did indeed account
for Dr. Horvat’s diagnoses, as he included all of them in the list of mental impairments he found
severe (namely, major depressive disorder, pain disorder, delusional disorder, intermittent explosive
disorder, and posttraumatic stress disorder). The ALJ also solicited opinions from Dr. Wise and Dr.
Meyers, who together considered all of the diagnoses assessed by Dr. Horvat and how those
conditions affect Plaintiff’s mental functioning. And as previously noted, Dr. Wise and Dr. Meyers
assessed no more than “moderate” functional limitations. Additionally, Dr. Wise concluded, after
reviewing the report from Dr. Horvat’s first examination of Plaintiff, that Plaintiff “can complete
a normal workweek without excessive interruptions for psychologically based symptoms” (tr. 268).
And Dr. Meyers concluded, after reviewing reports from Dr. Horvat’s first and second examinations
of Plaintiff, that Plaintiff “is able to meet the basic mental demands of work on a sustained basis
despite any limitations resulting from [his mental impairments]” (tr. 313). Thus, the ALJ did not
err in assigning “significant weight” to the opinion of Dr. Horvat, rendered on two occasions, that
Plaintiff is capable of working despite his mental impairments. Dr. Horvat’s opinion as to Plaintiff’s
ability to work is the only one of record offered by an examining source (there are, of course, no
treating source records or opinions to consider), and the opinion is consistent with the only other
opinions of record, those offered by both non-examining agency experts. Further, the opinions by
all three experts—that Plaintiff’s mental impairments do not preclude work—are also consistent
with evidence establishing that Plaintiff held full-time, gainful employment after his incarceration
(during which he received mental health treatment) (see tr. 129 (reflecting Plaintiff’s employment,
for sixty hours per week, between 2001 and 2004)).
D.
RFC Determination
Plaintiff contends the ALJ erred in determining his mental RFC. More specifically, he
claims that the ALJ’s restrictions—to work that requires no more than simple, repetitive, and routine
tasks, with only occasional interaction with co-workers and supervisors—fail to account for all of
Plaintiff’s mental functional limitations (see doc. 12 at 11–15).
Case No.: 5:12cv35/EMT
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Residual functional capacity is an assessment, based upon all of the relevant evidence, of a
claimant’s remaining ability to do work despite his impairments. See Lewis, 125 F.3d at 1440. As
stated in 20 C.F.R. § 404.1545(a), it is the most a claimant can still do despite his limitations. “It
is the claimant’s burden, and not the . . . Commissioner’s burden, to prove the claimant’s RFC.”
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Although the RFC determination is a
medical question, it is not based only on “medical” evidence, that is, evidence from medical reports
or sources; rather, an ALJ has the duty, at step four, to assess RFC on the basis of all the relevant,
credible evidence of record. See Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004);
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (the Commissioner must determine a
claimant’s RFC based on all of the relevant evidence, including the medical records, observations
of treating physicians and others, and an individual’s own description of his limitations); see also
20 C.F.R. § 404.1545; Social Security Ruling (SSR) 96-8p.
Here, the ALJ thoroughly considered all of the relevant evidence, including the opinions of
Dr. Wise, Dr. Meyers, and Dr. Horvat, and thereafter formulated Plaintiff’s mental RFC. The
limitation to no more than simple, repetitive, and routine tasks is fully consistent with the opinions:
(1) of Dr. Wise, that Plaintiff has no significant limitations in remembering work-like procedures
and locations; in understanding, remembering and carrying out short and simple instructions; in
making simple work-related decisions; and in maintaining attention and concentration for extended
periods (tr. 266, 268); and (2) of Dr. Meyers, that Plaintiff “retains the ability to perform simple,
repetitive tasks and likely has abilities to perform tasks at higher levels” and has no significant
limitations or only mild limitations in understanding, memory, or sustained concentration and
persistence (tr. 313, 311–12, 307). Similarly, the ALJ’s limitation to only occasional interaction
with co-workers and supervisors is consistent with the opinions: (1) of Dr. Wise and Dr. Meyers,
that Plaintiff has no significant limitations in working in coordination with or in proximity to others,
in asking simple questions or requesting assistance from others, and maintaining socially appropriate
behavior; and that he has moderate limitations in accepting instructions from others, responding
appropriately to criticism from supervisors, and getting along with co-workers “without distracting
them or exhibiting behavioral extremes” (tr. 266–67, 311–12); (2) of Dr. Wise, that Plaintiff “can
relate to supervisors and co-workers,” although he might “have some difficulty with supervisors and
Case No.: 5:12cv35/EMT
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distract others at times,” but he nevertheless can work full time despite psychologically-based
symptoms/limitations (tr. 268); and (3) of Dr. Meyers, that despite Plaintiff’s difficulty accepting
criticism and potential for distracting his co-workers, he nevertheless retains the mental ability to
work and otherwise “meet the basic mental demands of work on a sustained basis” (tr. 313).
Despite the foregoing opinions of Dr. Wise and Dr. Meyers, Plaintiff maintains that the RFC
is erroneous because it fails to account for the GAF score assessed by Dr. Horvat and the “many .
. . deficits” observed by Dr. Horvat during his consultative examinations, such as deficits exhibited
by Plaintiff in the areas of attention, concentration, memory, and judgment (doc. 12 at 12–13).
Plaintiff’s arguments are unconvincing. Although Dr. Horvat made various observations during the
consultative examinations, he did not specifically assess Plaintiff’s functional abilities, as did Dr.
Wise and Dr. Meyers. Dr. Horvat did, however, twice opine that Plaintiff is mentally able to work.
Additionally, after reviewing Dr. Horvat’s reports, which include all the observations and comments
identified here by Plaintiff, Dr. Wise and Dr. Meyers also concluded Plaintiff is able to work,
although they both acknowledged that Plaintiff would have some limitations. They recorded these
limitations on their RFC assessments, and the ALJ accounted for them in the RFC.
There simply is no error. Plaintiff’s arguments are based on mere speculation (e.g., Plaintiff
contends “it is doubtful that [the limitation to occasional interaction with supervisors and coworkers] adequately accounts for [Plaintiff’s] persecutory delusional disorder or his intermittent
explosive disorder” (doc. 12 at 13)). The experts’ opinions, however, are not speculative. For
example, Dr. Meyers specifically considered all of Dr. Horvat’s diagnoses, including persecutory
delusional disorder and intermittent explosive disorder, and she assessed limitations to account for
all of these disorders. Thus, in short, the ALJ did not err in relying on the experts’ opinions to
formulate Plaintiff’s mental RFC.
On a final note, Plaintiff contends the ALJ erred by failing to include in the RFC the GAF
score assessed by Dr. Horvat (i.e., a score of 50, which reflects “serious symptoms”) (doc. 12 at
14–15). Initially, the ALJ acknowledged the score assessed by Dr. Horvat after his second
examination of Plaintiff, but the ALJ noted that Dr. Horvat nevertheless continued to opine that
Plaintiff was not precluded from work based on psychological limitations, and the ALJ assigned
significant weight to this opinion (tr. 18) (and, as previously discussed, the ALJ did not err in doing
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so). Additionally, the GAF score was “on the cusp,” that is, a score only one point higher would
have placed Plaintiff in the “moderate symptoms” range, which range is generally consistent with
the ALJ’s findings and the opinions of the experts. Furthermore, the DSMM-IV states that the GAF
scale is used to report a clinician’s opinion as to an individual’s level of functioning with regard to
psychological, social, and occupational functioning.
Thus, the score takes into account
non-impairment related functioning in addition to the effects of an individual’s impairment.
Additionally, “the GAF scale is intended to be used to make treatment decisions, [DSMM-IV] at 32,
and nowhere do the Social Security regulations or case law require an ALJ to determine the extent
of an individual’s disability based entirely on his GAF score.” Wilkins v. Barnhart, 69 F. App’x
775, 780 (7th Cir. 2003) (unpublished) (citing DSMM-IV at 32, 34; Howard v. Comm’r. of Social
Security, 276 F.3d 235, 241 (6th Cir. 2002)). Thus, the ALJ did not err in failing to specifically find
that Plaintiff has “moderate” mental limitations, in failing to include “moderate” mental limitations
in the RFC, or in otherwise failing to include the GAF score of 50—or the symptoms associated with
GAF scores that range from 41 to 50—in the hypothetical questions he posed to the vocational
expert (“VE”).
In summary, the ALJ properly considered Plaintiff’s subjective complaints and the medical
opinions of record. He also based the RFC determination on all of the relevant evidence of record,
and the RFC accurately reflects Plaintiff’s remaining ability to do work despite his physical and
mental impairments. What is more, the ALJ asked the VE to consider a hypothetical individual with
the RFC he determined (and with other characteristics, such as Plaintiff’s age, work history and
educational history) and asked whether the individual—who could not perform Plaintiff’s past
work—could perform other available work (tr. 48–49). The VE responded “yes,” and identified the
jobs of bench assembler, electrical products assembler, and agricultural sorter (tr. 49; see also tr.
21).11 The ALJ did not err in relying on the VE’s answer to find Plaintiff “not disabled” at step five
of the sequential evaluation.
11
The VE also identified several jobs the hypothetical individual could perform if he was limited to sedentary
work (tr. 50–51). Thus, even if Dr. Morford’s opinions are fully accepted, Plaintiff would still be able to perform other
available work.
Case No.: 5:12cv35/EMT
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VI.
CONCLUSION
For all of the foregoing reasons, the Commissioner’s final decision is supported by
substantial evidence and should not be disturbed. 42 U.S.C. § 405(g); Lewis, 125 F. 3d at 1439;
Foote, 67 F.3d at1560. Furthermore, Plaintiff has failed to show that the ALJ applied improper legal
standards, erred in making his findings, or that any other ground for reversal exists.
Accordingly, it is ORDERED:
1.
Carolyn W. Colvin is substituted for Michael J. Astrue as Defendant in this action.
2.
The decision of the Commissioner is AFFIRMED, that this action is DISMISSED,
and that the clerk is directed to close the file.
At Pensacola, Florida this 15th day of July 2013.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
UNITED STATES MAGISTRATE JUDGE
Case No.: 5:12cv35/EMT
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