United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
MIRANDO United States Magistrate Judge
Sherri Martin seeks judicial review of the denial of her
claim for supplemental security income (“SSI”) by
the Commissioner of the Social Security Administration
(“Commissioner”). The Court has reviewed the
record, the briefs, and the applicable law. For the reasons
discussed herein, the decision of the Commissioner is
Issues on Appeal
raises four issues on appeal: (1) whether the Administrative
Law Judge (ALJ) properly evaluated the severity of
Plaintiff's mental impairment; (2) whether the ALJ
properly considered Plaintiff's non-exertional
limitations in assessing her Residual Functional Capacity
(“RFC”); (3) whether the ALJ properly found that
Plaintiff is capable of performing her past relevant work;
and (4) whether Plaintiff received a full and fair hearing
before the ALJ.
Procedural History and Summary of the ALJ's
January 11, 2011, Plaintiff filed an application for SSI
alleging that she became disabled and unable to work on
February 1, 2010. Tr. 137, 156. Plaintiff alleged disability
due to high blood pressure, fibromyalgia and depression. Tr.
160. The application initially was denied on June 2, 2011 and
upon reconsideration on August 10, 2011. Tr. 98, 108.
Plaintiff requested and received a hearing before ALJ Larry
J. Butler on May 15, 2013, during which she was represented
by an attorney. Tr. 51-79. Plaintiff testified at the
April 21, 2014, the ALJ issued a decision finding Plaintiff
not disabled from January 11, 2011 through the date of the
decision. Tr. 36-44. At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity
since January 11, 2011. Tr. 38. At step two, the ALJ
determined that Plaintiff has the following severe
impairments: fibromyalgia and hypertension. Id. At
step three, the ALJ concluded that Plaintiff “does not
have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.”
Tr. 40. The ALJ then determined that Plaintiff had the RFC to
perform the full range of light work as defined in 20 C.F.R.
§ 404.1567(b). Id. Next, the ALJ found that
Plaintiff is capable of performing her past relevant work as
a secretary/office worker because this work does not require
the performance of work-related activities precluded by
Plaintiff's RFC. Tr. 42. Alternatively, based on the
Medical Vocational Rules (the “Grids”), the ALJ
found that there are a significant number of other jobs in
the national economy Plaintiff can perform. Tr. 43. As a
result, the ALJ found that Plaintiff is not disabled. Tr. 43.
the ALJ's decision, Plaintiff filed a request for review
by the Appeals Council, which was denied on October 23, 2015.
Tr. 1-4. Accordingly, the April 21, 2014 decision is the
final decision of the Commissioner. Plaintiff filed an appeal
in this Court on December 30, 2015. Doc. 1. Both parties have
consented to the jurisdiction of the United States Magistrate
Judge, and this matter is now ripe for review. Docs. 19, 20.
Social Security Act Eligibility and Standard of
claimant is entitled to disability benefits when she is
unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to either result in death or
last for a continuous period of not less than twelve months.
42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R.
§ 404.1505(a). The Commissioner has established a
five-step sequential analysis for evaluating a claim of
disability. See 20 C.F.R. § 416.920.
Eleventh Circuit has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful
activity; (2) if not, whether the claimant has a severe
impairment or combination of impairments; (3) if so, whether
these impairments meet or equal an impairment listed in the
Listing of Impairments; (4) if not, whether the claimant has
the residual functional capacity (“RFC”) to
perform his past relevant work; and (5) if not, whether, in
light of his age, education, and work experience, the
claimant can perform other work that exists in
“significant numbers in the national economy.”
Atha v. Comm'r, Soc. Sec. Admin., 616 F.
App'x 931, 933 (11th Cir. 2015) (citing 20 C.F.R.
§§ 416.920(a)(4), (c)-(g), 416.960(c)(2);
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011). The claimant bears the burden of
persuasion through step four; and, at step five, the burden
shifts to the Commissioner. Atha, 616 F. App'x
at 933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987). The scope of this Court's review is limited to
determining whether the ALJ applied the correct legal
standards and whether the findings are supported by
substantial evidence. McRoberts v. Bowen, 841 F.2d
1077, 1080 (11th Cir. 1988) (citing Richardson v.
Perales, 402 U.S. 389, 390 (1971)). The
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is “more than a scintilla,
i.e., evidence that must do more than create a
suspicion of the existence of the fact to be established, and
such relevant evidence as a reasonable person would accept as
adequate to support the conclusion.” Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal
citations omitted); see also Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding
that “[s]ubstantial evidence is something more than a
mere scintilla, but less than a preponderance”)
(internal citation omitted).
Eleventh Circuit recently has restated that “[i]n
determining whether substantial evidence supports a decision,
we give great deference to the ALJ's fact
findings.” Hunter v. Soc. Sec. Admin.,
Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citing
Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d
1079, 1082 (11th Cir. 1996)). Where the Commissioner's
decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a
contrary result as finder of fact, and even if the reviewer
finds that the preponderance of the evidence is against the
Commissioner's decision. Edwards v. Su
livan, 937 F.2d 580, 584 n.3 (11th Cir.
1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
Cir. 1991). “The district court must view the record as
a whole, taking into account evidence favorable as well as
unfavorable to the decision.” Foote, 67 F.3d
at 1560; see also Lowery v. Sullivan, 979 F.2d 835,
837 (11th Cir. 1992) (stating that the court must scrutinize
the entire record to determine the reasonableness of the
factual findings). It is the function of the Commissioner,
and not the courts, to resolve conflicts in the evidence and
to assess the credibility of the witnesses. Lacina v.
Comm'r, 606 F. App'x 520, 525 (11th Cir. 2015)
(citing Grant v. Richardson, 445 F.2d 656 (5th Cir.
Whether the ALJ properly evaluated the severity of
Plaintiff's mental impairment
two, the ALJ acknowledged that Plaintiff has a medically
determinable impairment of adjustment disorder. Tr. 39. The
ALJ, however, determined that Plaintiff's adjustment
disorder “does not cause more than minimal limitation
in [Plaintiff's] ability to perform basic mental work
activities.” Id. In his evaluation, the ALJ
considered the degree of limitations imposed by
Plaintiff's mental impairments in four functional areas
and found that Plaintiff has mild limitations in activities
of daily living, social functioning, and concentration,
persistence, or pace. Id. The ALJ also noted that
Plaintiff has experienced no episodes of decompensation of
extended duration. Id. Because Plaintiff's
adjustment disorder causes no more than mild limitations in
the three functional areas and Plaintiff has experienced no
episodes of decompensation of extended duration, the ALJ
found that Plaintiff's adjustment disorder is non-severe.
argues that in assessing the severity of Plaintiff's
mental impairment, the ALJ applied a stricter standard than
one required under the law. Doc. 26 at 15-16. Plaintiff
specifically argues that the ALJ erred by not considering
Plaintiff's global assessment of function
(“GAF”) score. Id. at 17. The Commissioner
responds that substantial evidence supports the ALJ's
decision. Doc. 27 at 5-7. The Commissioner also asserts that
she does not endorse GAF scores for use in the agency's
disability programs, and GAF scores have no direct
correlation to the severity requirements of the mental
disorders listings. Id. at 7-9.
second step in the sequential evaluation process, the ALJ
determines whether the claimant has a severe impairment. 20
C.F.R. § 404.1520(a)(4)(ii). Plaintiff bears the burden
of establishing that her impairments are severe.
Bowen, 482 U.S. at 146 n.5. A severe impairment is
an impairment or combination of impairments that
significantly limits a claimant's physical or mental
ability to do basic work activities. 20 C.F.R. §
404.1520(c). “A non-severe impairment is a slight
abnormality which has such a minimal effect on the individual
that it could not be expected to interfere with the
individual's ability to work, irrespective of age,
education, or work experience.” Brady v.
Heckler, 724 F.2d 914, 920 (11th Cir. 1984). “The
ALJ must consider every impairment alleged.” Gibson
v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986). When
determining a claimant's RFC, the ALJ “must
consider all allegations of physical and mental limitations
or restrictions, ” not just those determined to be
severe. 20 C.F.R. § 404.1545(a)(2); SSR 96-8p. The ALJ
is required to consider the combined effects of a
claimant's alleged impairments and make specific,
well-articulated findings as to the effect of the impairments
and whether they result in disability. Walker v.
Bowen, 826 F.2d 996, 1001 (11th Cir. 1987).
at step two, the ALJ considered the four broad functional
areas (the “paragraph B criteria”) set out in the
disability regulations for evaluating mental disorders and in
section 12.00C of the Listing of Impairments (20 C.F.R., Part
404, Subpart P, Appendix 1) to determine that Plaintiff's
medically determinable mental impairment of anxiety disorder
does not cause more than minimal limitations in
Plaintiff's ability to perform basic mental work
activities and is therefore non-severe. Tr. 39-40.
first functional area is activities of daily living. Tr. 39.
The ALJ considered Plaintiff's report to the Social
Security Administration (“SSA”) on April 12, 2011
that she walks independently, dresses herself, bathes
herself, and does her own personal grooming without
assistance or reminders. Tr. 174. Plaintiff also noted that
she does all the household chores for her home, prepares
complex and simple meals as needed, runs errands, and goes
grocery shopping as needed. Id. Furthermore,
Plaintiff reported that she leaves home twice a week to run
errands and shop. Id. In addition, Plaintiff kept
track of her own doctors' appointments and medication
without assistance or reminders, receives food stamps and
maintains her own account, handles the household finances
without assistance, and purchases in a store without
assistance. Id. Plaintiff does not allege at all
that her daily activities have changed from what she
reported. Doc. 26 at 15-17. The second functional area is
social functioning. Tr. 39. The ALJ found that Plaintiff has
mild limitation in this area because she is able to initiate
and maintain friendships, run errands, and appear in public
as necessary. Id.
next functional area is concentration, persistence, or pace.
Id. Claudia Zsigmond, Psy.D., who evaluated
Plaintiff at the referral of the Office of Disability
Determination, noted that Plaintiff watches television and
cares for her dogs. Tr. 255. Dr. Zsigmond determined that
Plaintiff has appropriate attention and concentration and no
short-term or long-term memory impairment. Tr. 254. After
considering Dr. Zsigmond's examination, the ALJ
determined that Plaintiff has mild limitation in this area.
Tr. 39. The fourth and final functional area is episodes of
decompensation. Id. After reviewing the medical
evidence, the ALJ determined that Plaintiff has experienced
no episodes of decompensation. Id.
the ALJ found that Plaintiff's mental impairment is
non-severe, the ALJ determined that Plaintiff suffered from
severe impairments (Tr. 38) and continued through the
sequential evaluation to step five. Tr. 40-43. The Eleventh
Circuit has noted that the finding of any severe
impairment is enough to satisfy step two, “because once
the ALJ proceeds beyond step two, he is required to consider
the claimant's entire medical condition, including
impairments the ALJ determined were not severe.”
Burgin v. Comm'r of Soc. Sec., 420 F. App'x
901, 902 (11th Cir. 2011). Thus, even assuming the ALJ erred
by concluding that Plaintiff's mental impairment is
non-severe, that error was harmless because the ALJ
considered all of her impairments, including those he deemed
non-severe, when determining Plaintiff's RFC. Tr. 40-42.
extent that the ALJ did not discuss Plaintiff's GAF
score, it was at most a harmless error. As the Commissioner
correctly asserts, GAF scores are no longer endorsed for use
in disability programs by the Commissioner and have no
“direct correlation to the severity requirements of the
mental disorders listings.” Lacina, 606 F.
App'x at 527; Doc. 27 at 8-9. Instead, Plaintiff must
show the effect of her mental impairment on her ability to
work. Wind v. Barnhart, 133 F. App'x 684, 690
(11th Cir. 2005). As a result, the Court finds that the ALJ
properly evaluated the severity of Plaintiff's mental
impairment. Tr. 39.
Whether the ALJ properly considered Plaintiff's
non-exertional limitations in assessing her RFC
argues that in evaluating her RFC, the ALJ failed to consider
her non-exertional limitations imposed by her mental
impairment and fibromyalgia. Doc. 26 at 22-23. The
Commissioner asserts that substantial evidence supports the
ALJ's RFC findings, and the ALJ properly ...