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Martin v. Commissioner of Social Security

United States District Court, M.D. Florida, Fort Myers Division

March 24, 2017

SHERRI MARTIN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          CAROL MIRANDO United States Magistrate Judge

         Plaintiff 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 AFFIRMED.

         I. Issues on Appeal[1]

         Plaintiff 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.

         II. Procedural History and Summary of the ALJ's Decision

         On 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 hearing. Id.

         On 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).[2] 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.

         Following 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.

         III. Social Security Act Eligibility and Standard of Review

         A 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.

         The 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).

         The 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. 1971)).

         IV. Discussion

         A. Whether the ALJ properly evaluated the severity of Plaintiff's mental impairment

         At step 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. Tr. 40.

         Plaintiff 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.[3] 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.

         At the 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).

         Here, 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.

         The 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.

         The 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.

         Although 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.

         To the 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.

         B. Whether the ALJ properly considered Plaintiff's non-exertional limitations in assessing her RFC

         Plaintiff 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 ...


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