United States District Court, M.D. Florida, Fort Myers Division
MELISSA D. GILBERT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
MIRANDO, United States Magistrate Judge
Melissa D. Gilbert seeks judicial review of the denial of her
claims for a period of disability and disability insurance
benefits (“DIB”) and 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 REVERSED, and this matter is
REMANDED pursuant to 42 U.S.C. §
405(g), sentence four.
Issue on Appeals
raises three issues on appeal: (1) whether substantial evidence
supports the Administrative Law Judge's
(“ALJ”) severity findings; (2) whether the ALJ
properly assessed Plaintiff's residual functional
capacity (“RFC”); and (3) whether new evidence
submitted to the Appeals Council warrants remand.
Summary of the ALJ's Decision
filed her applications for DIB and SSI on March 28, 2012,
alleging her disability began August 12, 2011 due to
dizziness, migraines, fatigue, muscle cramps and weakness,
ringing in her ears, severe eye pain, low line cerebellum,
tingling and itching pain in her skin and sores on her skin.
Tr. 124, 138, 287-300. On March 24, 2015, ALJ Rosanne M.
Dummer issued a decision finding Plaintiff not disabled from
August 12, 2011 through the date of the decision. Tr. 62-79.
At step two of the sequential process,  the ALJ found
Plaintiff had severe impairments of fibromyalgia, headaches
and hip bursitis. Tr. 64. At step three, the ALJ found
Plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listing. Tr. 66.
Prior to step four, the ALJ then determined Plaintiff had the
RFC to perform a range of unskilled light work with limitations:
[Plaintiff] can lift/carry twenty pounds occasionally and ten
pounds frequently; sit about six of eight hours; and
stand/walk about six of eight hours. She can occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl. [Plaintiff] should avoid ropes and scaffolds. She
should avoid concentrated exposure to extreme heat, extreme
cold, humidity, vibration, and pulmonary irritants (i.e.,
fumes, odors, dusts, gases, and poor ventilation).
[Plaintiff] should avoid concentrated exposure to work
hazards (i.e., dangerous, moving machinery).
Id. Next, at step four, the ALJ found Plaintiff was
unable to perform her past relevant work. Tr. 76. Relying on
the testimony of the vocational expert (“VE”),
the ALJ determined there are jobs that exist in significant
numbers in the national economy that Plaintiff could perform.
Tr. 77-78. As a result, she found Plaintiff was not disabled.
Standard of Review
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.
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011). 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).
Eleventh Circuit 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) (citation omitted). 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 or found 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); 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). The Court reviews the
Commissioner's conclusions of law under a de
novo standard of review. Ingram v. Comm'r of
Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007)
(citing Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990)).
Whether substantial evidence supports the ALJ's severity
findings The ALJ did not find Plaintiff's alleged
mental impairment to be severe. Tr. 64. The ALJ noted:
[Plaintiff's] medically determinable mental impairment of
generalized anxiety disorder (GAD), does not cause more than
minimal limitation in [Plaintiff's] ability to perform
basic mental work activities and is therefore nonsevere
(Exhibits 4F; 13F p. 3). [Plaintiff] has not undergone any
significant mental health treatment or been hospitalized for
psychological reasons. Following a psychiatric evaluation,
[Plaintiff] was told to engage in individual psychotherapy
once a week (Exhibit 4F). Although she testified that she
could not afford treatment, she told her treating physician
that she would continue treatment with her psychologist
(Exhibit 3F p.5). By June 2012, [Plaintiff] reported only one
episode of anxiety in two weeks (Exhibit 8F p. 2). In
addition, her mental status exams on record were unremarkable
(Exhibits 12F p. 27; 16F p. 38; 17F p. 6).
Tr. 65. In support, the ALJ considered four broad functional
areas known as the “paragraph B”
criteria. Tr. 65-66. The ALJ determined Plaintiff
has mild limitations in activities of daily living, no
limitations in social functioning, mild limitations in
concentration, persistence or pace, and has experienced no
episodes of decompensation of an extended duration. Tr. 66.
assessing Plaintiff's RFC, the ALJ discussed the medical
records of Steven Cohen, Psy.D., dated April 30, 2012:
On April 30, 2012, [Plaintiff] presented to Steven Cohen Psy.
D., with complaints that something was wrong with her. Upon
exam, her grooming and attire were unremarkable. She had
high-pressure speech with appropriate content to affect and
unremarkable mood. Although she had only fair judgment and
insight, her thought process was clear and coherent. She
denied suicidal or homicidal ideation. She was diagnosed with
generalized anxiety disorder and rule out conversion
disorder. Her Global Assessment of Functioning
(GAF) was 50 and she was told to engage in
individual psychotherapy once a week (Exhibit 4F).
Tr. 69, 514-17.
argues the ALJ should have found her mental impairment is
severe because Dr. Cohen's GAF score indicates her mental
impairment is severe. Doc. 19 at 16-18. She also asserts the
ALJ erred by not assigning any weight to Dr. Cohen's
opinion concerning the GAF score. Id. at 17-18. The
Commissioner responds substantial evidence supports the
ALJ's severity findings. Doc. 22 at 7-10.
Plaintiff bears the burden to prove her mental impairment is
severe, the Court finds she does not meet her burden here.
Wind v. Barnhart, 133 F. App'x 684, 690 (11th
Cir. 2005) (citing McCruter v. Bowen, 791 F.2d 1544,
1547 (11th Cir. 1986)) (“[T]he claimant must show the
effect of the impairment on her ability to work.”). The
only evidence Plaintiff submits in support of her argument is
Dr. Cohen's GAF score. Doc. 19 at 16-18. As the
Commissioner correctly argues, however, 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 v. Comm'r, Soc. Sec.
Admin., 606 F. App'x 520, 527 (11th Cir. 2015); Doc.
22 at 8. Furthermore, although the ALJ did not assign any
weight to Dr. Cohen's opinion, she discussed it
thoroughly with other relevant medical evidence in her
decision. Tr. 66-76. Accordingly, the Court finds the ALJ
committed harmless error at most by not assigning any weight
to Dr. Cohen's GAF score. See Lacina, 606 F.
App'x at 527 (holding it was harmless error at most when
the ALJ did not specifically account for GAF scores because
they do not have direct corrections to the severity
requirements, and the ALJ considered the evidence relevant to
the claimant's mental impairments).
addition, as the Eleventh Circuit has held, “[n]othing
requires that the ALJ must identify, at step two, all of the
impairments that should be considered severe.”
Heatly v. Comm'r of Soc. Sec., 382 F. App'x
823, 825 (11th Cir. 2010). Thus, even if the ALJ here erred
by finding Plaintiff's mental impairment is non-severe,
that was harmless because the ALJ found Plaintiff has other
severe impairments, and “that finding is all that step
two requires.” Id. at 825; see Jamison v.
Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (“[T]he
finding of any severe impairment, whether or not it qualifies
as a disability and whether or not it results from a single
severe impairment or a combination of impairments that
together qualify as severe, is enough to satisfy the
requirement of step two.”). Thus, the Court finds
substantial evidence supports the ...