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Gilbert v. Commissioner of Social Security

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

March 29, 2018



          CAROL MIRANDO, United States Magistrate Judge

         Plaintiff 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.[1]

         I. Issue on Appeals[2]

         Plaintiff raises three issues on appeal:[3] (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.

         II. Summary of the ALJ's Decision

         Plaintiff 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, [4] 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[5] 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. Tr. 78.

         III. Standard of Review

         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. 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).[6] 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).

         The 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)).

         IV. Discussion

         A. 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.[7] 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.

         In 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)[8] was 50[9] and she was told to engage in individual psychotherapy once a week (Exhibit 4F).

Tr. 69, 514-17.

         Plaintiff 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.

         Although 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).

         In 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 ...

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