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Zandman v. Commissioner of Social Security

United States District Court, M.D. Florida, Tampa Division

March 31, 2017

Jeanne M. Zandman, Plaintiff,
Commissioner of Social Security, Defendant.


          Patricia D. Barksdale United States Magistrate Judge

         This is a case under 42 U.S.C. § 405(g) to review a final decision of the Commissioner of the Social Security Administration (“SSA”) denying Jeanne Zandman's claim for disability-insurance benefits.[1] She seeks reversal, Doc. 17; the Commissioner, affirmance, Doc. 18.[2] This order adopts the summaries of facts and law in the Administrative Law Judge's (“ALJ's”) decision, Tr. 76-84, and in the parties' briefs, Docs. 17, 18, except to the extent stated in this order.

         I. Issues

         Zandman presents four related issues: (1) whether the ALJ erred in failing to find she has severe mental impairments; (2) whether the ALJ properly evaluated the opinions of Timothy Foster, Ph.D.; (3) whether the ALJ erred in assessing her residual functional capacity (“RFC”); and (4) whether the vocational expert's (“VE's”) testimony provided substantial evidence for the ALJ's finding Zandman could perform past relevant work. Doc. 17 at 3-20.

         II. Background

         Zandman is 59 and last worked in July 2012. Tr. 151, 223. She has a general education diploma and experience as a sales clerk, office manager, credit clerk, purchasing agent, collection clerk, and data-entry clerk. Tr. 20, 40-44, 220. She alleges she became disabled in July 2012 from back and neck problems, depression, anxiety, diverticulosis, chronic obstructive pulmonary disease (“COPD”), hand problems, and sleep problems. Tr. 222-23. Her date last insured is June 30, 2013. Tr. 76. She proceeded through the administrative process, failing at each level. Tr. 5-11, 48-89, 92-97, 99-104. This case followed. Doc. 1.

         III. Opinion Evidence

         In November 2012, Zandman saw Dr. Foster for a consultative mental evaluation. Tr. 440-41. She conveyed she has back pain and is uncomfortable around people. Tr. 440. She reported being hospitalized when she was 12 for suicidal ideation but denied such feelings at the time of examination. Tr. 440. On examination, he found:

Jeanne was able to correctly identify the year, the season, the month, date[, ] and day of the week. She was able to correctly identify the state, city[, ] and county and type of building where we were located. She related well and pleasantly. She showed no problems sustaining attention. She appears to be of average intelligence. Her mood was self[-]described as “Happy but anxious.” Her affect appeared to be anxious. She was able to spell the word[ ] “World” backward correctly, as a measure of her concentration. She was able to immediately recall a brief list of 3 common items and recalled it, correctly, after a 5[-]minute delay. But she feels she [ ]forgets things people tell her. She was able to follow a simple 3[-]step instruction. She was able to read and write effectively. She was able to copy a simple design effectively. She does not admit to any hallucinations or delusions. She has no current suicidal ideation or impulse. Her judgment and insight appear to be within normal limits. She had ETOH problems in the past but has been sober just over 22 months. She has lost 60 pounds in the last year due to gall bladder problems.

Tr. 440-41.

         In a section titled “Functional Limits, ” Dr. Foster stated:

[Zandman] does not need anyone to remind her to bathe and brush her teeth regularly. She is able to make a sandwich and use the microwave. She can follow a recipe, [and] she can do her own laundry. She has 2 neighbors she talks with almost daily plus she talks with her daughter. She gets anxious around more than just a couple people. She can't wait in line behind 6 people, she'd have to leave, due to anxiety. She can read and understand instructions or a magazine. She feels her memory has not been good for the last f[e]w months. She says she feels anxious all the time. She can drive herself places as needed.

Tr. 441. He opined she can manage money in her own best interest. Tr. 441. He diagnosed her with anxiety, stated she “is stressed by being around people, ” and assigned a Global Assessment of Functioning (“GAF”) scale rating of 45, indicating “serious social limits.” Tr. 441.

         In December 2012, David Tessler, Psy.D., reviewed the medical evidence, including Dr. Foster's report, and concluded Zandman's mental disorders are not severe. Tr. 63-64. He found she has mild difficulties in maintaining concentration, persistence, or pace; no restrictions of activities of daily living; no difficulties in maintaining social functioning; and no episodes of decompensation of extended duration. Tr. 64. On mild difficulties in maintaining concentration, persistence, or pace, he referred to Zandman's function report indicating she can “follow instructions[, and] her ability to maintain attention ‘depends on subject matter.'” Tr. 64.

         IV. Hearing Testimony[3]

         At the May 2014 hearing, Zandman testified as follows. She does not engage in social activities but visits family once or twice a week. Tr. 24. She gets anxious and does “[n]ot [do] well at all” around large groups. Tr. 35. That was not a problem in the past. Tr. 35. When around large groups, her heart rate accelerates, she gets sweaty palms, and she “just want[s] to back into a corner.” Tr. 35. She randomly experiences panic attacks “[a] couple times a week” that last about 20 minutes. Tr. 35-36. When she has a panic attack, her heart rate accelerates, she gets sweaty palms and a sweaty face, and she feels like she will pass out. Tr. 36. She takes Xanax to relieve those symptoms. Tr. 36.

         V. ALJ's Decision

         At step one, [4] the ALJ found Zandman had not engaged in substantial gainful activity from July 31, 2012 (the alleged onset date), to August 7, 2014 (the decision date). Tr. 78.

         At step two, the ALJ found Zandman suffers from severe impairments of COPD, seizure disorder, hernia, gastritis, gastroparesis, abdominal abscess, and diverticulitis. Tr. 78. After discussing Dr. Foster's report, she found Zandman's mental impairments are not severe because “[t]here is no indication that [she] has required any ongoing mental health treatment for management of” the impairments and “medications are controlling [her] sympt[oms].” Tr. 78-79.

         At step three, the ALJ found Zandman has no impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 79. The ALJ considered the “paragraph B” criteria[5] and adopted Dr. Tessler's opinion that Zandman's mental impairments “resulted in no more than mild difficulties with maintaining concentration, persistence[, ] or pace with no other limitation in the paragraph ‘B' criteria.” Tr. 79.

         After stating she had considered the entire record, the ALJ found Zandman has the RFC to perform sedentary work with additional physical limitations. Tr. 79- 80. In making that RFC finding, the ALJ discussed Zandman's treatment records. Tr. 80-84. She gave little weight to Dr. Foster's opinions, including his GAF scale rating of 45. Tr. 83. She explained:

Although the claimant reported problems with anxiety and being around others, her symptoms are somewhat controlled with medications. As previously noted, the claimant is able to shop and drive. She further indicated that she visits with family several times a week. The undersigned acknowledges the consultative examiner provided a GAF of 45, but notes the Commissioner has specifically declined to endorse the GAF scale for use in disability programs, and has stated that the GAF scale does not have a direct correlation to ...

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