Berkel v. Astrue

Filing 15

ORDER and OPINION Affirming the decision of the Commissioner. Clerk is DIRECTED to enter final judgment in the Commissioner's favor. Signed by Magistrate Judge Alan J. Baverman on 2/27/2014. (bdb) Modified to add to opinions on 2/28/2014 (bdb).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HERMAN C. BERKEL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION FILE NO.
1:12-CV-03558-AJB

ORDER AND OPINION1
Plaintiff Herman C. Berkel (“Plaintiff”) brought this action pursuant to
sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g),
1383(c)(3), to obtain judicial review of the final decision of the Commissioner of the
Social Security Administration (“the Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits

1

The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. [See Dkt. Entries dated Nov. 26, 2012]. Therefore, this Order constitutes
a final Order of the Court.

AO 72A
(Rev.8/8
2)

(“SSI”) under the Social Security Act.2 For the reasons below, the undersigned
AFFIRMS the final decision of the Commissioner.
I.

PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on February 19, 2009, alleging

disability commencing on March 1, 2007. [Record (hereinafter “R”) 19, 72-74, 132-44;
Doc. 11 at 2; Doc. 12 at 2]. Plaintiff’s applications were denied initially and on
reconsideration.

[See R72-74].

Plaintiff then requested a hearing before an

Administrative Law Judge (“ALJ”). [R89-97]. An evidentiary hearing was held on
March 9, 2011. [R32-71]. The ALJ issued a decision on May 12, 2011, denying
Plaintiff’s application on the ground that he had not been under a “disability” at any
2

Title II of the Social Security Act provides for federal Disability Insurance
Benefits. 42 U.S.C. § 401 et seq. Title XVI of the Social Security Act,
42 U.S.C. § 1381, et seq., provides for Supplemental Security Income Benefits for the
disabled. Title XVI claims are not tied to the attainment of a particular period of
insurance disability. Baxter v. Schweiker, 538 F. Supp. 343, 350 (N.D. Ga. 1982).
Otherwise, the relevant law and regulations governing the determination of disability
under a claim for DIB are nearly identical to those governing the determination under
a claim for SSI. Wind v. Barnhart, 133 Fed. Appx. 684, 690 n.4 (11th Cir. June 2, 2005)
(citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4 (11th Cir. 1986)). In general, the
legal standards to be applied are the same regardless of whether a claimant seeks DIB,
to establish a “period of disability,” or to recover SSI, although different statutes and
regulations apply to each type of claim. See 42 U.S.C. § 1383(c)(3) (establishing that
the judicial provisions of 42 U.S.C. § 405(g) are fully applicable to claims for SSI).
Therefore, to the extent that the Court cites to SSI cases, statutes, or regulations, they
are equally applicable to Plaintiff’s DIB claims, and vice versa.
2

AO 72A
(Rev.8/8
2)

time through the date of the decision. [R16-31]. Plaintiff sought review by the Appeals
Council, and the Appeals Council denied Plaintiff’s request for review on August 14,
2012, making the ALJ’s decision the final decision of the Commissioner. [R1-7].
Plaintiff then filed an action in this Court on October 12, 2012, seeking review
of the Commissioner’s decision. [See Docs. 1, 3]. The answer and transcript were filed
on February 13, 2013. [See Docs. 7, 8]. On March 25, 2013, Plaintiff filed a brief in
support of his petition for review of the Commissioner’s decision. [Doc. 11].
On April 24, 2013, the Commissioner filed a response in support of the ALJ’s decision.
[Doc. 12].3 The matter is now before the Court upon the administrative record, the
parties’ pleadings, and the parties’ briefs, and it is accordingly ripe for review pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3).

3

Plaintiff did not file a reply brief, [see Dkt.], and because Plaintiff’s
counsel failed to appear for oral argument and did not request that the hearing be
rescheduled, no oral argument took place, [see Doc. 13].
3

AO 72A
(Rev.8/8
2)

II.

STATEMENT OF FACTS4
A.

Administrative Records

Plaintiff was born on March 15, 1960. [R132, 139]. Plaintiff had worked as a
roofer, but he alleged that he had become disabled as of March 1, 2007, due to high
blood pressure, leg pain, and blurred vision. [R163-64].
B.

Plaintiff’s Testimony

Plaintiff was almost fifty-one years old at the time of the hearing before the ALJ.
[R37]. He has an eleventh-grade education and worked as a roofer for more than
twenty years—from 1986 until March 2007. [R38]. At the time of the hearing, he lived
in a homeless shelter. [R36].
Plaintiff stated before the ALJ that the only impairments that limit his ability to
work were his hypertension, leg pain, and blurred vision. [R38-39]. Plaintiff testified
that he was able to care for an elderly individual, doing such things as cleaning his
house, cooking, and accompanying him to dialysis appointments. [R 47-51]. Plaintiff
also testified that he was able to use public transportation. [R51].

4

The records referenced in this section are generally limited to those
deemed by the parties to be relevant to this appeal. [See Docs. 11, 12].
4

AO 72A
(Rev.8/8
2)

C.

Medical Records

On August 28, 2006, Plaintiff had a follow-up outpatient visit at the Grady
Health System. [R230, 269]. He was diagnosed with uncontrolled hypertension, and
it was noted that he was not compliant with medication. [R230, 269]. Plaintiff reported
that he was able to walk ten miles per day. [R230, 269]. He was prescribed lisinopril,5
and it was noted that he was counseled for smoking but was not ready to quit.
[R231, 270].
On December 5, 2006, Plaintiff received outpatient treatment from the Grady
Health System for stomach pain. [R249]. It was noted that Plaintiff had been
prescribed lisinopril for blood pressure but that he was only intermittently compliant.
[R249]. It was also noted that Plaintiff smoked approximately one pack of cigarettes
daily and used marijuana on weekends. [R249]. His lisinopril dosage was increased,

5

Lisinopril is used to treat high blood pressure. It works by decreasing
certain chemicals that tighten the blood vessels, so blood flows more smoothly and the
heart can pump blood more efficiently.
MedlinePlus, Lisinopril,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a692051.html (last visited
2/14/14).
5

AO 72A
(Rev.8/8
2)

and he was also prescribed HCTZ,6 scheduled for an eye appointment, and counseled
on quitting smoking. [R250].
On December 12, 2006, Plaintiff was seen at the Grady Eye Clinic. [R251]. He
reported that he had difficulty seeing at night. [R251]. He was diagnosed with optic
atrophy7 and possible glaucoma.8 [R251]. It was also noted that he was hypertensive.
[R251].
On January 2, 2007, Plaintiff was again seen at the Grady Eye Clinic. [R268].
He was diagnosed with optic atrophy. [R268]

6

“HCTZ” is an abbreviation for the diuretic hydrochlorothiazide.
S e e
M e d i L e x i c o n
M e d i c a l
A b b r e v i a t i o n s ,
http://www.medilexicon.com/medicalabbreviations.php?keywords=hctz&search=ab
breviation (last visited 2/14/14). Hydrochlorothiazide is a “water pill,” and is used to
treat high blood pressure and fluid retention caused by various conditions, including
heart disease. It causes the kidneys to get rid of unneeded water and salt from the body
into the urine.
See MedlinePlus, Hydrochlorothiazide,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682571.html (last visited
2/14/14).
7

“Atrophy” refers to a wasting of tissues or organs.
Dictionary 165 (1st ed. 1995).
8

PDR Med.

Glaucoma is a disease of the eye characterized by increased pressure inside
the eye, excavation, and atrophy of the optic nerve. It produces defects in the field of
vision. PDR Med. Dictionary 723 (1st ed. 1995).
6

AO 72A
(Rev.8/8
2)

On February 21, 2007, Plaintiff had a follow-up visit at Grady upon referral from
the eye clinic. [R266]. He reported having been out of medication for one year.
[R266]. It was noted that he was non-compliant with treatment for hypertension,
smoked a pack of cigarettes each day, and used marijuana. [R266]. The clinic offered
to refill his hypertension medication and recommended follow-up tobacco abuse
counseling. [R267]. He also underwent an MRI of the head, which indicated mild
chronic microangiopathic9 change in the periventricular white matter10 and normal
orbits.11 [R236].
On March 14, 2007, Plaintiff was treated at the Grady Health System emergency
room for a sore throat, cough, and “flu like symptoms.” [R262-64]. Plaintiff reported
that he had head, back, and chest pain and that he was not taking any medication,

9

“Microangiopathy” refers to any disease of the capillaries. PDR Med.
Dictionary 271, 1110 (1st ed. 1995).
10

Periventricular white matter is white matter that is immediately to the side
of the two lateral ventricles of the brain. White matter is a group of white nerve fibers
that conduct nerve impulses quickly and is important for muscle movement.
MedFriendly,
Periventricular
White
Matter,
http://www.medfriendly.com/periventricularwhitematter.html (last visited 2/19/14).
11

“Orbit” is another word for the eye socket. PDR Med. Dictionary 1256
(1 ed. 1995).
st

7

AO 72A
(Rev.8/8
2)

despite his history of hypertension. [R262, 264]. He reported smoking one to two
packs of cigarettes per day. [R264].
On June 26, 2007, Plaintiff returned to the Grady Eye Clinic with optic atrophy
and retinopathy12 related to hypertension. [R248]. His eyes were runny, but he denied
any change in vision. [R248]. It was noted that Plaintiff had stopped taking his blood
pressure medication. [R248]. Clinic personnel recommended that Plaintiff restart
therapy for his hypertension and discussed the importance of the therapy with him.
[R248].
On July 11, 2007, Plaintiff presented at Grady for an outpatient visit. [R246].
He did not want to give his medical history and refused examination. [R246].
Although clinic personnel explained to him the importance of treating his elevated
blood pressure, he refused treatment and walked out of the clinic against the physician’s
recommendation. [R247].
September 2007 treatment notes from the Grady Eye Clinic indicate that Plaintiff
had good acuity, and “gets around ok [without] glasses” but that he alleged problems

12

Retinopathy is noninflammatory degenerative disease of the retina. PDR
Med. Dictionary 1538-39 (1st ed. 1995).
8

AO 72A
(Rev.8/8
2)

adjusting from light to dark environments. [R245]. He was noted to be hypertensive.
[R245].
On December 24, 2007, Plaintiff returned to the Grady Emergency Care Center
with complaints of eye pain and night blindness. [R252-55]. He had what appeared to
be a stye13 in his right eye. [R254-55]. He was given eye drops and was also noted to
be hypertensive. [R253]. He requested blood pressure medication. [R253].
On March 8, 2008, Plaintiff was again seen at the Grady Eye Clinic. [R242]. He
was diagnosed with optic neuropathy14 and uncontrolled hypertension due to
non-compliance with blood-pressure medication. [R242].
On January 14, 2009, Plaintiff returned to Grady with elevated blood pressure,
cold symptoms, and complaints of “constant” full body aches, but he reported no eye
pain or vision change. [R238, 240]. He was diagnosed with a viral illness. [R241].
On February 11, 2009, Plaintiff was again seen at Grady’s emergency room.
[R256]. He complained of sore throat, cough, abdominal pain, fatigue, and myalgia,15

13

A stye is an inflamed opening into the follicle of an eyelash. PDR Med.
Dictionary 722, 1691 (1st ed. 1995).
14

“Neuropathy” is “[a] classical term for any disorder affecting any segment
of the nervous system.” PDR Med. Dictionary 1204 (1st ed. 1995).
15

Myalgia is muscle pain. PDR Med. Dictionary 1161. (1st ed. 1995).
9

AO 72A
(Rev.8/8
2)

but reported no vision change or blurry vision, and he admitted that he had stopped
taking medication for his hypertension one year prior. [R256]. He reported smoking
a pack of cigarettes per day, and it was also noted that he was living in a shelter.
[R256]. The next day, Plaintiff was treated at the emergency room of DeKalb Medical
Center for chest pain. [R212-19]. Treatment notes indicate that Plaintiff’s chest x-ray
was normal, his eyes were normal, he was alert and oriented, and he suffered from
hypertension. [R213, 218-21].
On March 26, 2009, Plaintiff was seen for follow-up regarding his claims of
right-leg pain. [R243]. It was noted that Plaintiff’s hypertension was controlled, and
he was advised to continue to take medication. [R244]. His lower-extremity pain was
determined to probably be musculoskeletal, and he was advised to take Tylenol for it.
[R244].
On June 2, 2009, Plaintiff was seen at Grady’s Primary Care Center. [R333].
He reported blurry vision without pain.

[R333].

It was noted that Plaintiff’s

hypertension was controlled with medication. [R333-34].
On May 15, 2009, Plaintiff was seen by Cherrell Thomas, LAPC, at the DeKalb
County Community Service Board (“DeKalb County”). [R271-84]. Presenting
problems were moderate, chronic anxiety, evidenced by agitation, excessive worry, and
10

AO 72A
(Rev.8/8
2)

restlessness; moderate depression of a duration of between thirty days and six months,
evidenced by appetite disturbance, hypersomnia, tearfulness, sadness, and decreased
energy; and moderate, chronic substance abuse, evidenced by blackouts, physical
issues, and emotional issues. [R271]. It was noted that Plaintiff was anxious about his
homelessness, finances, and health, and that he had used marijuana since he was
thirteen years old and had used crack and cocaine since 1987. [R271]. It was also
noted that Plaintiff was “vague” about his depressive symptoms and that he reported
having quit drinking ten years prior but continued to abuse crack and marijuana.
[R280].

Ms. Thomas opined that Plaintiff suffered from substance abuse and

depressive disorder and assigned him a Global Assessment Functioning (“GAF”) score
of 40.16 [R278].

16

The Global Assessment of Functioning (“GAF”) is a numeric scale
(0 through 100) that considers psychological, social, and occupational functioning on
a hypothetical continuum of mental health illness. Diagnostic and Statistical Manual
of Mental Disorders 32-34 (4th ed., Text Revision, 2000) (“DSM-IV-TR”). A GAF
score between 31 and 40 indicates “[s]ome impairment in reality testing or
communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major
impairment in several areas, such as work or school, family relations, judgment,
thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable
to work; child frequently beats up younger children, is defiant at home, and is failing
at school).” Id. at 34.
11

AO 72A
(Rev.8/8
2)

On June 10, 2009, Plaintiff was seen by Ken Sanford, M.D., a consultative
examiner. [R287-93]. Chief complaints were hypertension, vision condition, and leg
pain. [R287]. Dr. Sanford noted that Plaintiff complained of right-leg pain but
reported that he had no difficulties walking and that walking relieved his pain. [R287].
Plaintiff reported taking several medications: lisinopril 40 mg, amlodipine 10 mg,17
ranitidine 150 mg,18 HCTZ 25 mg, and naproxen 250 mg.19 [R287]. Plaintiff was 5’8”
and weighed 256 pounds. [R288]. His pupils were equal and reactive to light, his
ocular motion was equal, and his mental state was normal. [R288-89]. Diagnoses were
hypertension uncontrolled, GERD, obesity, visual disturbance, tobacco abuse, and back

17

Amlodipine is a calcium channel blocker that is used alone or in
combination with other medications to treat high blood pressure and chest pain. See
M e d l i n e P l u s ,
A m l o d i p i n e ,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a692044.html (last visited
2/14/14).
18

Ranitidine is used to treat ulcers; gastroesophageal reflux disease
(“GERD”), a condition in which backward flow of acid from the stomach causes
heartburn and injury of the food pipe (esophagus); and conditions where the stomach
produces too much acid.
See MedlinePlus, Ranitidine,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601106.html (last visited
2/14/14).
19

Naproxen is used to relieve pain, tenderness, swelling, and stiffness. See
M e d l i n e P l u s ,
N a p r o x e n ,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681029.html (last visited
2/14/14).
12

AO 72A
(Rev.8/8
2)

pain. [R289]. Dr. Sanford further stated that uncontrolled hypertension and obesity
increased Plaintiff’s risk for a cardiovascular event and that Plaintiff complained of
back pain which may be due to degenerative disorder as well as obesity. [R289].
Dr. Sanford also noted that Plaintiff “is very vague with his history,” and he observed
a normal range of motion and strength in all available categories. [R289-92].
On July 6, 2009, non-examining state agency physician R. Paul Crank, Jr., M.D.,
opined that Plaintiff could lift or carry fifty pounds occasionally and twenty-five
pounds frequently; could sit, stand, or walk for six hours in an eight-hour workday; and
was unlimited in his push/pull ability. [R295]. Dr. Crank found no postural,
manipulative, visual, communicative, or environmental limitations. [R296-98].
On July 17, 2009, Plaintiff returned to Grady for a blood pressure check. [R329].
He also alleged back pain and leg pain with walking. [R329]. His blood pressure was
elevated due to his failure to comply with prescribed medication. [R329-30]. Two
weeks later, on July 30, 2009, Plaintiff’s hypertension was controlled with medication.
[R326].
On August 4, 2009, Plaintiff presented at Grady’s Ophthalmology Clinic with
complaints of blurry vision and intermittent eye pain. [R327].

13

AO 72A
(Rev.8/8
2)

In October 2009, Plaintiff was seen by Grady’s emergency department for high
blood pressure. [R303]. He also alleged back pain that was worse with walking and
improved with rest. [R308, 316-17]. At a follow-up exam later that month, Plaintiff
reported having no pain, and a straight-leg-raise test was negative. [R366-67]. A
lumbosacral spine series dated November 5, 2009, revealed “minimal loss of the normal
lumbar lordosis,”20 scattered anterior osteophytes,21 and minimal degenerative disc
disease of the lumbosacral spine. [R340].
On February 11, 2010, Plaintiff alleged low back pain that was relieved by
ibuprofen. [R337]. His hypertension was again noted as uncontrolled “due to
[Plaintiff] not taking meds,” and he was assessed with a probable musculoskeletal strain
or sprain. [R338].
On March 11, 2010, Plaintiff presented at the Grady Ophthalmology Clinic,
reporting that his eye pain was 2 out of 10, that his eyes “run water” at night, and that
“glare is really bad.” [R335-36, 370-71]. His vision was stable, and he was diagnosed

20

“Lordosis” refers to the curvature of the lumbar spine. PDR Med.
Dictionary 996 (1st ed. 1995).
21

Osteophytes are bony outgrowths or protuberances, and “anterior”
indicates a position closer to the front of the body. PDR Med. Dictionary 97, 1270
(1st ed. 1995).
14

AO 72A
(Rev.8/8
2)

with optic neuropathy and atrophy, hypertensive retinopathy, dry eyes, and
blepharitis.22 [R335-36, 370-71].
On May 14, 2010, Plaintiff had a follow-up outpatient visit at Grady. [R372].
He reported two recent falls but denied dizziness, weakness, or leg pain. [R 372]. It
was also noted that Plaintiff had a normal gait, normal reflexes, and full strength in all
extremities. [R372].
On August 24, 2010, Abraham Oyewo, M.D., an agency reviewing physician,
opined that Plaintiff could lift or carry fifty pounds occasionally and twenty-five
pounds frequently; could sit, stand, or walk for six hours in an eight-hour workday; and
was unlimited in his push/pull ability. [R358-64]. Dr. Oyewo opined that Plaintiff
should avoid exposure to hazards, such as machinery or heights, but found no postural,
manipulative, visual, or communicative limitations. [R359-62].
In September and October 2010, Plaintiff visited Grady with complaints of back,
shoulder, and knee pain. [R365, 380]. Plaintiff’s hypertension was found to be
uncontrolled due to non-compliance, and his degenerative disc disease was categorized
as “minimal.” [R381].

22

“Blepharitis” refers to inflammation of the eyelids.
Dictionary 211 (1st ed. 1995).
15

AO 72A
(Rev.8/8
2)

PDR Med.

On January 25, 2011, a physician at the Grady Eye Clinic23 opined that Plaintiff
suffers from bilateral ischemic24 optic neuropathy evidenced by pale nerves in both
eyes. [R375]. The doctor opined that Plaintiff had effectively lost vision in his left eye
and that it would not improve. [R376]. The doctor further stated that Plaintiff's
impairment would not cause headaches, eye fatigue, double vision, or require Plaintiff
to rest his eyes frequently. [R377]. The doctor did, however, opine that Plaintiff would
have difficulty reading print less than 20/40; may experience a loss of depth perception
or have tunnel or gun-barrel vision; and would have difficulty concentrating his vision
on an object for a period of two hours. [R377]. The doctor also stated that Plaintiff’s
eyes were likely to water excessively and that he would have to apply eye drops four
to five times per day. [R378].
D.

Vocational Expert Testimony

At Plaintiff’s hearing, the ALJ asked a vocational expert (“VE”) to consider the
occupational capacity of an individual with “the claimant’s same age, education, past

23

The signature on the form is illegible, and no legible representation of the
name appears elsewhere in the eye clinic records; the physician’s name, specialty, and
treating relationship with Plaintiff is therefore unknown. [See R378].
24

Ischemia is local anemia caused by diminished blood supply. PDR Med.
Dictionary 894 (1st ed. 1995).
16

AO 72A
(Rev.8/8
2)

relevant work experience”; the residual functional capacity (“RFC”) to lift and/or carry
twenty-five pounds frequently and fifty pounds occasionally, stand and/or walk and sit
with normal breaks for a total of six hours out of an eight-hour day, and do unlimited
pushing and/or pulling; and the need to “avoid concentrated exposure to hazards such
as machinery and heights.” [R63]. The VE testified that such a person could perform
medium jobs, such as cleaner II, dining room attendant, and production helper.
[R63-64]. The VE further testified that if the individual lacked fine visual acuity, the
person could not work as a production helper but could work as a grocery bagger.
[R65].
III.

ALJ’S FINDINGS
The ALJ made the following findings of fact and conclusions of law:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2009.

2.

The claimant has not engaged in substantial gainful activity since
March 1, 2007, the alleged onset date (20 CFR 404.1571 et seq.,
and 416.971 et seq.).

3.

The claimant has the following severe impairments: hypertension,
degenerative joint disease, bilateral ischemic optic neuropathy
(worse in the left eye with a resulting visual acuity of 20/40 in the
left eye[)], and asthma. (20 CFR 404.1520(c) and 416.920(c)).
...
17

AO 72A
(Rev.8/8
2)

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
...

5.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c) except for the following limitations: the claimant must
avoid concentrated exposure [to] hazards including machinery and
heights.
...

6.

The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
...

7.

The claimant was born on March 15, 1960 and was 46 years old,
which is defined as an individual closely approaching advanced
age, on the alleged disability onset date (20 CFR 404.1563
and 416.963).

8.

The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

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 the claimant is “not disabled,”
whether or not the claimant has transferable job skills
(See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
18

AO 72A
(Rev.8/8
2)

10.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
...

11.

The claimant has not been under a disability as defined in the Social
Security Act from March 1, 2007, through the date of the decision
(20 CFR 404.1520(g) and 416.920(g)).

[R21-26].
The ALJ explained that she found Plaintiff’s medically determinable mental
impairment of depression not to cause more than minimal limitation in Plaintiff’s
ability to perform basic mental work activities and therefore to be non-severe. [R22].
She noted that the initial assessment conducted by DeKalb County on May 15, 2009,
revealed that Plaintiff had moderate anxiety, depression, and substance abuse; his
appearance, emotions, thought process, and though content were all within normal
limits; he was noted to have hypersomnia; he denied suicidal thoughts or threats of
violence; no clinical actions were taken; and Plaintiff was referred to a day program for
individual and group counseling. [R22 [citing R271-83]]. The ALJ also noted that no
other mental health records were included in the medical evidence of record. [R22].

19

AO 72A
(Rev.8/8
2)

The ALJ also explained that she found Plaintiff’s complaints of blurry vision to
comport with the ability to perform medium-exertional work except such work
involving concentrated exposure to hazards including machinery and heights.
[R23-25]. She noted that optic atrophy was found in January 2007, [R229]; an MRI
conducted in February 2007 revealed mild chronic microangiopathic change in the
periventricular white matter and unremarkable orbits, [R236]; by March 2008,
Plaintiff’s eye condition had been termed “optic neuropathy,” [R242]; an
August 4, 2009, ophthalmology clinic note indicated that Plaintiff’s neuropathy was
intermittent in nature with a throbbing pain, [R327]; March 11, 2010, ophthalmology
notes indicated that Plaintiff complained of late-night eye watering with burning and
glare and rated his pain a 2/10, his vision was deemed stable, and he was advised to
return in six months, [R335-36]; a vision questionnaire dated January 25, 2011,
indicated that Plaintiff had bilateral ischemic optic neuropathy, had lost vision from the
left eye due to the condition, may have trouble focusing for periods greater than two
hours, and requires drops four to five times per day, and that his eyes may water
excessively, [R375-78]. [R23-24]. The ALJ stated that because Dr. Oyewo had
thoroughly reviewed Plaintiff’s medical evidence, she gave substantial weight to
Dr. Oyewo’s opinion of August 24, 2010, that Plaintiff’s allegations of blurry vision
20

AO 72A
(Rev.8/8
2)

were fully credible and compatible with medium work limited by the requirement to
avoid exposure to hazards including machinery and heights. [R25]. The ALJ stated
that she gave less weight to the opinions stated in the vision questionnaire because it
included only opinions with no diagnostics or explanations of Plaintiff’s eye condition,
and she also stated that she had given consideration to the treatment notes. [R25].
IV.

STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if he is

unable 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), 1382c(a)(3)(A).

The impairment or

impairments must result from anatomical, psychological, or physiological abnormalities
which are demonstrable by medically accepted clinical or laboratory diagnostic
techniques and must be of such severity that the claimant is not only unable to do
previous work but cannot, considering age, education, and work experience, engage in
any other kind of substantial gainful work that exists in the national economy.
42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).

21

AO 72A
(Rev.8/8
2)

The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
the existence of a “disability” and therefore entitlement to disability benefits.
See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step
sequential process to determine whether the claimant has met the burden of proving
disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
The claimant must prove at step one that he is not undertaking substantial gainful
activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the
claimant must prove that he is suffering from a severe impairment or combination of
impairments that significantly limits his ability to perform basic work-related activities.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, if the impairment
meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of
Impairments), the claimant will be considered disabled without consideration of age,
education, and work experience.

See 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a
listed impairment, he must prove that his impairment prevents performance of past
relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five,
22

AO 72A
(Rev.8/8
2)

the regulations direct the Commissioner to consider the claimant’s residual functional
capacity, age, education, and past work experience to determine whether the claimant
can perform other work besides past relevant work.

See 20 C.F.R.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner must produce evidence that
there is other work available in the national economy that the claimant has the capacity
to perform. Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant
must prove an inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled,
the

sequential

evaluation

ceases

and

further

inquiry

ends.

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step
five, the overall burden rests on the claimant to prove that he is unable to engage in any
substantial gainful activity that exists in the national economy.

Doughty,

245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),
superceded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991).
V.

SCOPE OF JUDICIAL REVIEW
A limited scope of judicial review applies to a denial of Social Security benefits

by the Commissioner. Judicial review of the administrative decision addresses three
23

AO 72A
(Rev.8/8
2)

questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296
(N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court
may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If
substantial evidence supports the Commissioner’s factual findings and the
Commissioner applies the proper legal standards, the Commissioner’s findings are
conclusive. Lewis v. Callahan, 125 F.3d1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam);
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
“Substantial evidence” means “more than a scintilla, but less than a
preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion, and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth,
24

AO 72A
(Rev.8/8
2)

703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary
of the ALJ’s findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ’s decision.

Barron v. Sullivan,

924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ’s application of legal
principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker,
826 F.2d at 999.
VI.

CLAIMS OF ERROR
A.

Arguments

Plaintiff argues that the ALJ erred by failing to evaluate and develop the record
regarding Plaintiff’s mental and visual impairments.

[Doc. 11 at 1-2, 6, 9].

Specifically, Plaintiff points out that although the ALJ discussed the May 15, 2009,
mental evaluation conducted by DeKalb County, she did not expressly acknowledge
the GAF score of 40 or re-contact DeKalb County to make further inquiry, and Plaintiff
argues that the ALJ erred by failing to order a consultative mental examination or to
explain why she did not order a consultative mental examination. [Id. at 8]. He
25

AO 72A
(Rev.8/8
2)

suggests that the failure to develop the record of Plaintiff’s mental impairments led the
ALJ to improperly evaluate Plaintiff’s credibility and arrive at an erroneous RFC
finding. [Id. at 1, 6, 8-12]. Plaintiff further argues that the RFC is incomplete because
it does not make any “specific functional findings and fails to make accommodations
for Plaintiff’s vision problems.” [Id. at 9]. Last, Plaintiff contends that because the
RFC was erroneous, the testimony the ALJ elicited from the VE was insufficient to
provide substantial evidence for the disability denial. [Id. at 2, 12-14]. For these
reasons, Plaintiff contends that he did not receive a “full and fair hearing.” [Id. at 10].
The Commissioner, in response, argues that the ALJ fully developed the record
with respect to Plaintiff’s mental impairments, the RFC and credibility determinations
were supported by substantial evidence, and the ALJ properly relied on the VE’s
testimony. [Doc. 12 at 12-24]. With regard to the alleged mental impairments, the
Commissioner argues that GAF scores are not findings regarding a claimant’s ability
to work and therefore need not have been expressly considered, [id. at n.16]; the GAF
score was also due no deference because the counselor who made the GAF
determination was not an acceptable medical source, [id. at n.12]; Plaintiff has failed
to show why a consultative mental examination was necessary, [id. at 13-14]; the
DeKalb County report contained sufficient evidence to make an informed decision as
26

AO 72A
(Rev.8/8
2)

to Plaintiff’s mental limitations and was neither ambiguous nor unclear, and therefore,
no reason for re-contact arose, [id. at 14-15]; and Plaintiff is merely speculating that
re-contact would support, rather than undermine, his disability claim, [id. at 15]; and
the record contains sufficient evidence to make an informed decision with respect to
Plaintiff’s impairments and to support the mental RFC, [id. at 12-13, 15-18]. The
Commissioner contends that Plaintiff’s other complaints about the RFC are unavailing
because the RFC precludes work involving concentrated exposure to hazards, including
machinery and heights, and therefore sufficiently accommodates Plaintiff’s visual
limitations; Plaintiff failed to develop his argument that a functional analysis was
required; and, in any event, Plaintiff’s functional limitations were implicit in the ALJ’s
reference to the limited range of “medium work.” [Id. at 16, 18-19 & n.15]. The
Commissioner also argues that the ALJ provided substantial evidence for her credibility
determination, [id. at 20-22], and that because the ALJ properly applied the law and
substantial evidence supports the RFC, the ALJ proposed a valid hypothetical and
properly relied on the VE’s testimony, [id. at 23-24].

27

AO 72A
(Rev.8/8
2)

B.

Discussion
1.

Adequacy of Record Regarding Mental Impairments

Plaintiff points out that the ALJ did not expressly acknowledge the GAF score
of 40 found during the DeKalb County mental evaluation dated May 15, 2009, or
re-contact DeKalb County to make further inquiry about the mental evaluation, and he
argues that the ALJ erred by failing to order a consultative mental examination or to
explain why she did not order a consultative mental examination. The Court first
considers whether the ALJ’s failure to discuss the GAF score alone constituted
reversible error and then considers whether re-contact or a consultative mental
examination was necessary.
a.

GAF Score

Plaintiff points out that the ALJ did not expressly acknowledge his GAF score
of 40 but does not state whether he contends that this constituted error or explain why
it may have been error. [See Doc. 11 at 6-8 & n.3]. In the response brief, the
Commissioner notes that merely mentioning an issue is insufficient to raise it upon
appeal. [Doc. 12 at 17 n.15 (citing Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1
(11th Cir. 1998) (holding that because the plaintiff merely mentioned that the defendant
violated certain of his civil rights and failed to develop arguments to support his
28

AO 72A
(Rev.8/8
2)

position, those issues were deemed abandoned on appeal); N.L.R.B. v. McClain of Ga.,
Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a perfunctory manner,
without supporting arguments and citation to authorities, are generally deemed to be
waived.”))]. The Commissioner also contends that the ALJ did not err in failing to
expressly address the GAF score in the opinion because GAF scores do not constitute
a specific finding regarding a claimant’s ability to work, but instead refer to a global
scale used in the treatment of an ongoing condition, [Doc. 12 at 17 n.16 (citing Wind
v. Barnhart, 133 Fed. Appx. 684, 692 n.5 (11th Cir. June 2, 2005) (per curiam))], and
moreover, that in this case, the counselor who assigned the score was not an acceptable
medical source and therefore cannot establish the existence of an impairment,
[Doc. 12 at 13 n.12 (citing 20 C.F.R. §§ 404.1513(a), (d)(1), 404.1527(a)(2),
416.913(a), (d)(1), 416.927(a)(2))].
After carefully considering Plaintiff’s brief, the Court finds no basis upon which
to presume that Plaintiff does in fact intend to argue that the ALJ erred by failing to
expressly discuss the GAF score appearing in the DeKalb County assessment.
[See Doc. 11 at 8]. Rather, it appears that Plaintiff simply intends to assert that the
GAF score is evidence of a disabling mental impairment and that it therefore should
have triggered the ALJ to order a consultative mental examination. [See id.]. Thus, the
29

AO 72A
(Rev.8/8
2)

Court finds that Plaintiff has failed to raise any argument that the lack of a discussion
of the GAF score constituted reversible error, and the issue is therefore not properly
before the Court.

See Outlaw v. Barnhart, 197 Fed. Appx. 825, 827 n.3

(11th Cir. Aug. 10, 2006) (per curiam) (finding that the plaintiff waived an issue by
failing to elaborate on the argument or provide a citation to authority regarding the
argument).
Furthermore, even if Plaintiff did intend argue that the ALJ erred by omitting any
discussion of the GAF score, the Court finds no reversible error in the omission. First,
the Commissioner is correct that a GAF score does not translate into a specific finding
regarding functional limitations. See Wind, 133 Fed. Appx. at 692 n.5 (noting that the
Commissioner has declined to endorse the GAF scale because the scores have no direct
correlation to the severity requirements of the mental disorder listings); Revised Med
Criteria

for

Evaluating

Mental

Disorders

and

Traumatic

Brain

Injury,

65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000) (“The GAF scale . . . does not have a
direct correlation to the severity requirements in our mental disorders listings.”); see
also Kornecky v. Comm’r Soc. Sec., 167 Fed. Appx. 496, 511 (6th Cir. Feb. 6, 2006)
(per curiam) (rejecting claimant’s argument that GAF scores of 46 and 40-45 noted by
a doctor and a case manager required a disability finding); Seymore v. Apfel,
30

AO 72A
(Rev.8/8
2)

131 F.3d 152 (10th Cir. Dec. 8, 1997) (unpublished table opinion) (“Contrary to
claimant’s contention, a GAF rating of 45 may indicate problems that do not
necessarily relate to the ability to hold a job; thus, standing alone without further
narrative explanation, the rating of 45 does not evidence an impairment seriously
interfering

with

claimant’s

ability

to

work.”);

Ward

v.

Astrue,

No. 3:00-CV-1137-J-HTS, 2008 WL 1994978, at *3 (M.D. Fla. May 8, 2008) (“[A]n
opinion concerning GAF, even if required to be accepted as valid, would not translate
into a specific finding in regard to functional limitations.”); Quaite v. Barnhart,
312 F. Supp. 2d 1195, 1200 (E.D. Mo. 2004) (“In the absence of any evidence
indicating that [the consultative psychological examiner] assigned this GAF score [50]
because he perceived an impairment in plaintiff’s ability to work, the score, standing
alone, does not establish an impairment seriously interfering with plaintiff’s ability to
perform basic work activities.”). Therefore, the GAF score of 40, standing alone, did
not constitute evidence of disability.
Second, the Court also agrees with the Commissioner that because the GAF was
assigned by a counselor, [see R271-83 (indicating that the assessment was made by
Cherrell Thomas, LAPC)], and not “an acceptable medical source,” it is not entitled to
any special consideration. See Johnson v. Apfel, No. CIV. A. 98–0674–AH–G,
31

AO 72A
(Rev.8/8
2)

2000 WL 208741, at *3 (S.D. Ala. Feb. 17, 2000) (holding that a licensed professional
counselor is not an acceptable medical source under 20 C.F.R. § 416.913(a), and
therefore a report made by such a counselor is not entitled to weight afforded an
acceptable medical source) (citing Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996)
(holding that a nurse practitioner working without the supervision of a physician does
not constitute an acceptable medical source)).
Third, even if the GAF had been issued by a treating physician, there is no “rigid
requirement” that the ALJ refer to it so long as the ALJ’s decision is sufficient to allow
the reviewing court to determine that the ALJ considered the claimant’s medical
condition

as

a

whole.

Newsome

ex

rel.

Bell

v.

Barnhart,

444 F. Supp. 2d 1195, 1198-1200 (M.D. Ala. 2006); see also Ogranaja v. Comm’r of
Soc. Sec., 186 Fed. Appx. 848, 851 (11th Cir. June 5, 2006) (“We do not require the ALJ
to ‘specifically refer to every piece of evidence in his decision,’ so long as the decision
is sufficient to allow us to conclude that the ALJ considered the claimant’s medical
condition as a whole.”) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th Cir. 2005)).
The ALJ’s opinion makes clear that she considered Plaintiff’s medical condition
as a whole. Although Plaintiff makes much of the GAF score, the record shows that
32

AO 72A
(Rev.8/8
2)

Plaintiff was assigned a GAF only once, on May 15, 2009, in what appears to be
Ms. Thomas’s first encounter with him. [See R280 (stating that Plaintiff would begin
treatment at the facility on May 19, 2009)]. As the ALJ noted, the narrative contained
in Ms. Thomas’s report indicated “moderate” anxiety, depression, and substance abuse;
“normal” appearance, emotions, thought process, and thought content; and conservative
treatment—no clinical actions were taken, and Plaintiff was referred to a day program
for individual and group counseling. [R22]. Additionally, Ms. Thomas’s assessment
noted only “vague” symptoms of depression of a duration of between thirty days and
six months but found a long and continuing history of substance abuse and assigned
Plaintiff to “Addictions Day Treatment.” [R280]. As the ALJ also noted, by the time
of the hearing, Plaintiff had abstained from substance abuse for more than one year;
was capable of caring for an older friend by cleaning his bathroom and kitchen and
accompanying him to dialysis; and was capable of taking public transportation to see
his friend. [R22, 24]. The ALJ also noted that there were no other mental health
records. [R22].
Given the ALJ’s discussion of the narrative and treatment recommendations
contained in Ms. Thomas’s report, the ALJ’s finding that Plaintiff had since abstained
from substance abuse, the ALJ’s note that there were no other mental treatment records,
33

AO 72A
(Rev.8/8
2)

and the ALJ’s discussion of Plaintiff’s activities of daily living at the time of the
hearing, it is clear that the ALJ considered the record as a whole and reasonably
determined that Plaintiff did not suffer from disabling mental impairments. Thus, the
Court finds that the ALJ did not err in omitting discussion of the GAF score.
b.

Need to Re-contact DeKalb County or Procure a
Consultative Mental Examination

Plaintiff raises the issue of re-contact in much the same manner as he raised the
GAF-score issue: he points out that the ALJ did not re-contact DeKalb County
regarding the initial assessment but does not state whether he contends that this
constituted error, nor does he explain why it may have been error. [See Doc. 11 at 8].
He does, however, contend that by failing to order a consultative mental examination,
the ALJ failed to meet her “basic obligation to develop a full and fair record.” [Id. at 7
(quoting Newton v. Astrue, 297 Fed. Appx. 880, 883 (11th Cir. Oct. 23, 2008)
(per curiam); Welch v. Bowen, 854 F.2d 436, 440 (11th Cir. 1998) (per curiam))]. He
points out that under the regulations, the ALJ may order a consultative examination if
the evidence as a whole is insufficient to make a decision; the additional evidence
needed is not contained in the medical sources’ records; highly technical or specialized
medical evidence is needed and not available from another source; an inconsistency in

34

AO 72A
(Rev.8/8
2)

the evidence must be resolved; or there is a change in the claimant’s condition that is
likely to affect his ability to work, and the current severity of the impairment is not
established. [Doc. 11 at 7-8 (citing 20 C.F.R. §§ 416.917, 416.919a(b))]. He then
generally implies that he was prejudiced by the ALJ’s failure to order a consultative
mental examination. [See Doc. 11 at 8].
In response, the Commissioner argues that the record contains sufficient evidence
to make an informed decision with respect to Plaintiff’s mental impairments and to
support the mental RFC, and thus, there was no need to re-contact DeKalb County or
order a consultative examination.

[Doc. 12 at 12-23 (citing Graham v. Apfel,

129 F.3d 1420, 1423 (11th Cir. 1997) (finding that “the record was sufficient for the
ALJ to evaluate [the plaintiff’s] impairments and functional ability” and therefore did
not show “the kind of gaps in the evidence necessary to demonstrate prejudice”)].
Specifically, the Commissioner points out that Plaintiff was examined for his mental
health only once, and while he was diagnosed with depression, his symptoms were
noted to be “vague,” [Doc. at 12-13 [citing R22, 271-83]]; although Plaintiff visited the
hospital many times from 2006 through 2011 for his other impairments, treatment notes
from those visits do not contain a diagnosis of depression or any concerns about
Plaintiff’s mental state, nor do they assess any mental limitations, [Doc. 12 at 13
35

AO 72A
(Rev.8/8
2)

[citing R57, 212-84, 302-49, 365-73, 380-402]]; and Plaintiff stated at his hearing that
the only impairments limiting his ability to work were his hypertension, leg pain, and
blurred vision, [Doc. 12 at 13 [citing R38-39]]. The Commissioner further argues that
there was no reason to re-contact DeKalb County because the assessment contained
sufficient evidence to make an informed decision as to Plaintiff’s mental limitations and
was neither ambiguous nor unclear, [Doc. 12 at 14-15 (citing Shaw v. Astrue,
392 Fed. Appx. 684, 688-89 (11th Cir. Aug. 12, 2010) (per curiam) (re-contacting a
medical source is proper where the ALJ cannot ascertain the basis for the source’s
opinion); Gallina v. Comm’r of Soc. Sec., 202 Fed. Appx. 387, 388
(11th Cir. Oct. 25, 2006) (per curiam) (“[M]edical sources generally need only be
re-contacted when the evidence received from that source is inadequate to determine
whether the claimant is disabled.”); 20 C.F.R. §§ 404.1512(e), 416.912(e))]; Plaintiff
has failed to justify any request to remand the case for re-contact because he is merely
speculating that re-contact would support, rather than undermine, his disability claim,
[Doc. 12 at 15 (citing Moore v. Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005) (finding
that where the ALJ’s RFC determination is supported by substantial evidence, a
plaintiff must point to medical evidence that conflicts with the determination, and that
it is insufficient to “argue[] inferentially that based on their evaluations, [the plaintiff’s]
36

AO 72A
(Rev.8/8
2)

physicians would most likely disagree with the ALJ’s findings”))]; and Plaintiff has
failed to show why a consultative mental examination was necessary, [Doc. 12 at 13-14
(citing Holladay v. Bowen, 848 F.2d 1206, 1210 (11th Cir. 1988) (An ALJ “is not
required to order a consultative examination unless the record establishes that such an
examination is necessary to enable the administrative law judge to render a decision.”);
20 C.F.R. §§ 404.1517, 404.1519a, 416.917, 416.919a)].
In this case, the undersigned concludes that the ALJ did not err in failing to
re-contact Ms. Thomas or order a consultative examination and that the record
contained substantial evidence to support the ALJ’s determination that Plaintiff did not
suffer from disabling mental impairments. Re-contact was unnecessary for at least two
reasons. First, the ALJ was not required to re-contact Ms. Thomas because, as
discussed above, Ms. Thomas was a licensed professional counselor and not “an
acceptable medical source,” and therefore the duty to re-contact did not apply.
See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (providing that the recontact provision set forth in 20 C.F.R. § 404.1512(e) (1997) applied only to a treating
source). Second, the report presented no inconsistencies to resolve because, as
discussed above, a GAF score alone does not constitute evidence of disability, and the
remainder of Ms. Thomas’s assessment supported the ALJ’s determination that Plaintiff
37

AO 72A
(Rev.8/8
2)

did not suffer from disabling depression: Ms. Thomas described Plaintiff’s depression
as “moderate” and of a duration of “between 30 days and 6 months,” [R271, 281];
stated that Plaintiff was “vague” about his depressive symptoms, [R280]; and listed the
diagnosis of depressive disorder, not otherwise specified, as a tertiary diagnosis.25
[R278].
The Court also finds nothing in the record to suggest that the ALJ should have
ordered a consultative mental examination. “[T]he ALJ has a duty to develop the
record fully and fairly.” Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999); see also
20 C.F.R. § 416.912(d). The Commissioner may order a consultative examination if
a plaintiff’s medical sources cannot or will not give the Commissioner sufficient
medical evidence about an impairment to allow a disability determination.
20 C.F.R. § 416.917. In making this decision, the Commissioner considers the medical
reports,

the

disability

interview

form,

and

other

pertinent

evidence.

Id. § 416.919a(a)(1). A case will be remanded for failure to develop the record only if
the plaintiff shows prejudice. See Robinson v. Astrue, 365 Fed. Appx. 993, 995-96
25

According to the DSM-IV, the principal diagnosis or reason for visit
should be listed first, with the other disorders following. DSM-IV-TR at 27-28, 35.
Here, the primary diagnosis was continuous cocaine abuse, and the secondary diagnosis
was continuous cannabis abuse, [R278]—both of which the ALJ determined had ceased
more than a year before the hearing, [R22].
38

AO 72A
(Rev.8/8
2)

(11th Cir. Feb. 19. 2010) (citing Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)).
Prejudice “at least requires a showing that the ALJ did not have all of the relevant
evidence before [her] in the record . . . or that the ALJ did not consider all of the
evidence in the record.” Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985).
It is Plaintiff’s burden, not the Commissioner’s, to establish a disability. See
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007) (holding
that the ALJ did not err by failing to inquire into the claimant’s mental capacity because
“[e]ven though Social Security courts are inquisitorial, not adversarial, in nature,
claimants must establish that they are eligible for benefits.”); Doughty,
245 F.3d at 1281 (holding that the ALJ is not required to order a consultative
examination as long as the record contains sufficient evidence for an informed
decision); 20 C.F.R. § 416.912(a). To be disabled, a plaintiff must establish that he has
medically determinable impairments through medical evidence. See id. § 416.912(c).
Therefore, Plaintiff had the burden of establishing an impairment that would cause
behavioral or cognitive limitations. See id. (placing burden on claimant to show how
the impairment affects functioning).
Plaintiff did not meet this burden. Plaintiff did not allege that he was disabled by
a mental impairment, even if he did have a “medically determinable mental impairment
39

AO 72A
(Rev.8/8
2)

of depression,” in the words of the ALJ. [R22, R163 (adult disability report alleging
that Plaintiff was limited in his ability to work by high blood pressure, leg pain, and
blurred vision); R38-39 (Plaintiff’s testimony that his disability application arose from
his hypertension, leg pain, and blurred vision and nothing else)]. Plaintiff also testified
during the hearing that he had not had depression treatment and had not taken any
medication for it.

[R56-58].

Moreover, Ms. Thomas, the certified counselor,

considered the degree of Plaintiff’s depression and found that it was moderate and of
a duration of thirty days to six months, and recommended that Plaintiff undergo
treatment for substance abuse but made no provision or recommendation for treatment
for depression. [R271-83]. Additionally, although the medical evidence shows that
Plaintiff frequently received medical treatment, it is devoid of any indication that
Plaintiff was treated for depression or referred for such treatment or that depression was
a concern of any of his physicians.

See Manzo v. Comm’r of Soc. Sec.,

408 Fed. Appx. 265, 269 (11th Cir. Jan. 7, 2011) (affirming decision that plaintiff failed
to carry her burden of establishing that anxiety constituted a severe mental impairment
where ALJ noted that plaintiff had never been referred for mental health treatment).

40

AO 72A
(Rev.8/8
2)

For all of these reasons, the Court concludes that the ALJ did not err in failing
to order a consultative mental evaluation or in determining that Plaintiff did not suffer
from disabling depression.
2.

The RFC’s Functional Limitations and Vision Accommodations

Plaintiff next argues that the RFC is incomplete because it does not make any
“specific functional findings and fails to make accommodations for Plaintiff’s vision
problems.” [Doc. at 9 (quoting Felton v. Astrue, No. 1:11-CV-3517-TWT-ECS, 2013
WL 870440, at *10 (N.D. Ga. Feb. 6, 2013) (Scofield, M.J.) (“The ALJ’s RFC
assessment must also ‘describe[ ] how the evidence supports each conclusion’ and
‘explain how any material inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.’ ”) (quoting Social Security Regulation
(“SSR”) 96-8p), adopted at 2013 WL 870315 (N.D. Ga. Mar. 7, 2013) (Thrash, J.);
Washington v. Astrue, 558 F. Supp. 2d 1287, 1300 (N.D. Ga. 2008) (Baverman, M.J.)
(“The RFC assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis . . . . Only after that may the RFC assessment be expressed in terms of the
exertional levels of work, sedentary, light, medium, heavy, and very heavy.”)
(quoting SSR 96-8p))]. The Commissioner, in response, points out that Plaintiff has
41

AO 72A
(Rev.8/8
2)

failed to develop his argument that the ALJ’s functional findings were lacking and
contends that there was no need for the ALJ to itemize Plaintiff’s functional limitations
because they were implicit in the ALJ’s reference to “medium work.”
[Doc. 12 at 18-19 &

n.15

(citing

Castel

v.

Comm’r

of

Soc.

Sec.,

355 Fed. Appx. 260, 263 (11th Cir. Nov. 30, 2009) (per curiam))]. The Commissioner
further argues that because the RFC precludes work involving concentrated exposure
to hazards, including machinery and heights, it therefore sufficiently accommodates
Plaintiff’s visual limitations. [Doc. 12 at 18-19].
a.

Function-by-Function Analysis

The Court finds no reversible error in the ALJ’s determination of Plaintiff’s
ability to handle the strength demands set forth in the RFC. As the Commissioner
points out, Plaintiff merely raises the issue of whether the ALJ performed a proper
function-by-function analysis and presents no argument to support his allegation that
the ALJ failed to do so. For this reason alone, the Court could affirm this aspect of the
ALJ’s opinion.
Plaintiff’s allegation also fails on the merits.

In determining Plaintiff’s

functional capabilities, the ALJ considered Plaintiff’s testimony, his activities of daily
living, the medical records, the vision questionnaire, the consultative examination
42

AO 72A
(Rev.8/8
2)

report provided by Dr. Sanford, and the physical residual functional capacity
assessment provided by Dr. Oyewo, and she ultimately decided that Plaintiff was
capable of performing medium-exertion work, except such work involving concentrated
exposure to work hazards such as machinery and heights. [R23-25]. See Castel,
355 Fed. Appx. at 263 (citing SSR 96-8p for its provision that the RFC assessment
must consider all relevant evidence, including medical history, medical evaluations,
daily activities, and lay evidence). “Medium work involves lifting no more than
50 pounds at a time with frequent lifting or carrying of objects weighing up to
25 pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c). It also requires the “ability to stand
or walk, off and on, for a total of approximately six hours in an eight-hour workday;
use of the arms and hands to grasp, hold and turn objects; and frequent
bending/stooping.” Coleman v. Barnhart, 264 F. Supp. 2d 1007, 1010 (S.D. Ala. 2003)
(citing SSR 83-10).
Dr. Sanford’s June 10, 2009, consultative examination indicates that while
Plaintiff complained of right-leg pain, he also reported that he had no difficulties
walking and that walking relieved his pain. [R287]. Dr. Sanford also noted that
Plaintiff’s descriptions of his medical history were “vague.” [R287]. He found that
Plaintiff had a normal respiratory pattern with no deviations or chest wall
43

AO 72A
(Rev.8/8
2)

abnormalities. [R288]. His heart rate was normal with no gallop or murmur. [R288].
Extremities were unremarkable and joints showed no warmth, swelling, or deformity.
[R288]. His back showed no spasm or swelling, his gait was normal, and he had no
difficulty getting on and off the examination table. [R288]. He was neurologically
intact, and there was no evidence of mental problems. [R288-89]. Dr. Sanford also
observed a normal range of motion and strength in all available categories. [R289-92].
A lumbar-spine x-ray series conducted later that year revealed “minimal” degenerative
disease. [R340]. On August 24, 2010, Dr. Oyewo opined based on his review of
Plaintiff’s medical records that Plaintiff could lift or carry fifty pounds occasionally and
twenty-five pounds frequently; could sit, stand, or walk for six hours in an eight-hour
workday; and was unlimited in his push/pull ability. [R358-64]. Plaintiff also testified
that he took public transportation and cooked and cleaned for an elderly friend. [R4751].
Plaintiff does not assert that the ALJ failed to consider any evidence regarding
his exertional limitations, [see Doc. 11, passim], and the Court finds the above to be
substantial evidence supporting the ALJ’s determination that Plaintiff retained the
ability to perform work at the medium exertional level. Consequently, the Court
concludes that the ALJ performed a proper RFC function analysis.
44

AO 72A
(Rev.8/8
2)

b.

Accommodation for Visual Limitations

Plaintiff also asserts that the RFC is incomplete because it fails to make
accommodations for Plaintiff’s vision problems. [Doc. 11 at 9-10]. In response, the
Commissioner argues that at step two, the ALJ found that Plaintiff had the severe
impairment of bilateral ischemic optic neuropathy resulting in visual acuity of 20/40
in the left eye, [R21], and accordingly crafted the RFC to exclude work involving
concentrated exposure to hazards, including machinery and heights, [R23].
[Doc. 12 at 18]. The Commissioner also points out that Plaintiff has failed to show that
his impairments resulted in any limitation in excess of the RFC and asserts that RFC
is supported by substantial evidence. [Id. at 19 (citing Moore, 405 F.3d at 1213
(providing that even if the record could support a different RFC, an RFC supported by
substantial evidence will not be disturbed); Graham v. Bowen, 790 F.2d 1572, 1575
(11th Cir. 1986) (“The weighing of evidence is a function of the factfinder, not of the
district court.”))].
The Court finds that there is substantial evidence showing that the RFC
accommodated Plaintiff’s vision problems. The ALJ explained that in crafting the
RFC, she considered Plaintiff’s allegations that he suffers from blurred vision
occasionally and that he applies eye drops four times per day. [R23]. She further
45

AO 72A
(Rev.8/8
2)

reviewed the medical records from the Grady Eye Clinic, which detailed Plaintiff’s
complaints of blurriness, wateriness, glare, and intermittent eye pain, and she also
reviewed the January 2011 questionnaire, which diagnosed bilateral ischemic optic
neuropathy, stated that Plaintiff had lost vision from his left eye, may have trouble
focusing for periods of greater than two hours, and requires drops four to five times per
day, and that his eyes may water excessively. [R24]. She also explained that she gave
substantial weight to Dr. Oyewo’s opinion that Plaintiff’s allegations of blurry vision
were fully credible, [R25], and she adopted the environmental limitation stated in
Dr. Oyewo’s opinion, [compare R23 with R361].
Furthermore, the Court finds that even if the RFC stated in the ALJ’s decision
did fail to fully accommodate Plaintiff’s vision problems, the record developed by the
ALJ at the hearing demonstrates that the error was harmless. In response to the ALJ’s
questioning, the VE testified that a person with the RFC articulated in the ALJ’s
decision could perform jobs occurring in substantial numbers in the national and local
economy, such as cleaner, dining room attendant, and production helper. [R63-64].
The ALJ then went on to ask the VE about the vocational abilities of a person with that
RFC and who additionally had “no fine visual acuity.” [R64-65]. The VE responded
that the modification would preclude the person from working as a production helper
46

AO 72A
(Rev.8/8
2)

(approximately 800 jobs in Georgia and 28,000 nationally) but that the person would
be able to work as a grocery bagger (approximately 1,110 jobs in Georgia and 40,000
nationally). [R64-65]. Plaintiff’s attorney conceded at the hearing that even the visual
questionnaire could not be construed to assert any visual limitation more restrictive than
“blurred vision.” [R67-69]. Thus, the Court finds that in eliciting testimony from the
VE showing that jobs existed in substantial numbers in the national and local economy
even for a person with an RFC of medium work, with no exposure to workplace
hazards, and the additional limitation of no fine visual acuity, the ALJ demonstrated
that Plaintiff’s vision problems were not disabling.
3.

Credibility

Plaintiff also argues that the ALJ’s credibility assessment is not supported by
substantial evidence. [Doc. 11 at 10-12]. He points to the ALJ’s finding that Plaintiff’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms but that his statements concerning the intensity, persistence, and limiting
effects of the symptoms were “not credible to the extent they are inconsistent with the
. . . residual functional capacity assessment.” [Id. at 10 [citing R24]]. He cites a couple
of unpublished district-court cases from another circuit, which Plaintiff appears to
suggest provide that such a finding is per se reversible error. [Doc. 11 at 10-11]. He
47

AO 72A
(Rev.8/8
2)

also argues that in making her credibility determination, the ALJ was required to
consider the factors set out in SSR 96-7p14 and discuss at least some of them but that
she failed to do so, [id. at 11], and he further asserts that the ALJ erred by failing to
specify exactly which portions of Plaintiff’s testimony were not credible, [id. at 12].
The Court is not aware of any requirement that an ALJ affirmatively enumerate
each portion of the claimant’s testimony she finds incredible, and Plaintiff does not
supply any authority in support of this theory. The Court therefore finds this portion
of Plaintiff’s credibility appeal to be without merit.
It is true, however, that where an ALJ decides not to credit a claimant’s
testimony regarding subjective allegations of disability, she must articulate explicit and
adequate reasons for doing so. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
Be that as it may, in rejecting such testimony, the ALJ does not need to refer
14

SSR 96-7p provides, in relevant part, that when making a credibility
determination, the ALJ must consider the objective medical evidence as well as (1) the
claimant’s daily activities; (2) the location, duration, frequency, and intensity of the
claimant’s symptoms; (3) precipitating and aggravating factors; (4) the type, dosage,
effectiveness, and side effects of any medication the claimant takes or has taken to
alleviate the symptoms; (5) other treatment the claimant receives or has received for
relief of the symptoms; (6) non-treatment measures the claimant uses or has used to
relieve the symptoms (“e.g., lying flat on his or her back, standing for 15 to 20 minutes
every hour, or sleeping on a board”); and (7) any other factors concerning the
claimant’s functional limitations and restrictions due to the symptoms. SSR 96-7p.
48

AO 72A
(Rev.8/8
2)

specifically to each piece of evidence in her decision, so long as the decision “is not a
broad rejection” that does not allow the reviewing court to determine that the ALJ
considered the claimant’s medical condition as a whole. Dyer, 395 F.3d at 1211.
Here, the ALJ did not simply issue a broad rejection of Plaintiff’s testimony
regarding the subjective effects of his symptoms but instead, she considered Plaintiff’s
overall medical condition and placed on the record explicit reasons for rejecting his
testimony and finding that his impairments were not severe enough to be disabling. See
20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4) (providing that in evaluating subjective
complaints, the ALJ must “consider whether there are any inconsistencies in the
evidence and the extent to which there are any conflicts between [the claimant’s]
statements and the rest of the evidence”). Specifically, the ALJ noted Plaintiff’s
testimony that he was able to help an elderly friend by cleaning his bathroom and
kitchen and that he was able to use public transportation. [R24-25]. She also noted that
the treatment Plaintiff had received for the allegedly disabling impairments had been
“essentially routine and conservative in nature” and that Plaintiff had been
noncompliant in taking prescribed medications, which suggested that the symptoms
may not have been as limited as Plaintiff alleged. [R24-25]. The ALJ also explained
that she gave substantial weight to Dr. Oyewo’s opinion because he had thoroughly
49

AO 72A
(Rev.8/8
2)

reviewed the medical records; gave some weight to Dr. Sanford’s opinion because its
specificity and reliability was undermined by Plaintiff’s “vague” descriptions; and gave
lesser weight to the vision questionnaire because it included only opinions and no
diagnostics or explanations of Plaintiff’s eye condition. [R25]. She also stated that she
had considered the treatment notes appearing in the record, including the lumbar x-rays
showing minimal degeneration and chest x-rays showing no gross abnormalities. [R2425]. Thus, the Court finds that the ALJ’s credibility determination was not an
impermissibly broad rejection of Plaintiff’s testimony, as Plaintiff seems to suggest, but
was

instead

a

detailed,

generally

well-reasoned

explanation.

See Dyer, 395 F.3d at 1210-11; Holt, 921 F.2d at 1223; SSR 96-7p. Consequently, the
ALJ’s credibility analysis provides no grounds for reversal.
4.

Vocational Testimony

Plaintiff’s argument that the vocational testimony cannot provide substantial
evidence to support the denial is predicated on his allegations that his mental and visual
impairments imposed limitations greater than those included in the RFC and the
hypothetical posed to the VE. [Doc. 11 at 12-13]. Because the Court finds that
substantial evidence supports the ALJ’s RFC determination and that the hypothetical
included all of the limitations contained in the RFC, this argument is also without merit.
50

AO 72A
(Rev.8/8
2)

VIII. CONCLUSION
For the reasons above, the Court AFFIRMS the final decision of the
Commissioner.
The Clerk is DIRECTED to enter final judgment in the Commissioner’s favor.
IT IS SO ORDERED and DIRECTED, this the 27th day of February, 2014.

51

AO 72A
(Rev.8/8
2)