United States District Court, M.D. Florida, Fort Myers Division
REPORT & RECOMMENDATION
PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.
a case under 42 U.S.C. § 405(g) to review a final
decision of the Commissioner of Social Security denying
Cynthia Barnes's claim for disability-insurance benefits.
Barnes seeks vacatur and remand on three asserted grounds:
(1) the Administrative Law Judge (“ALJ”) erred at
step two of the five-step sequential process by finding her
mental impairments non-severe; (2) the ALJ erred at the same
step by finding her physical impairments non-severe; and (3)
the ALJ violated her constitutional due process rights by
relying on evidence outside the record. Doc. 22. The
Commissioner contends Barnes shows no error warranting
relief. Doc. 26.
Social Security Administration (“SSA”) uses an
administrative review process a claimant ordinarily must
follow to receive benefits or judicial review of a denial of
benefits. Bowen v. City of New York, 476 U.S. 467,
471-72 (1986). A state agency acting under the
Commissioner's authority makes an initial determination.
20 C.F.R. §§ 404.900-404.906. If dissatisfied with
that determination, the claimant may ask for reconsideration.
20 C.F.R. §§ 404.907-404.918. If dissatisfied with
the reconsideration determination, the claimant may ask for a
hearing before an ALJ. 20 C.F.R. §§
404.929-404.943. If dissatisfied with the ALJ's decision,
the claimant may ask for review by the Appeals Council. 20
C.F.R. §§ 404.967-404.982. If the Appeals Council
denies review, the claimant may sue in federal district court
seeking review of the ALJ's decision. 42 U.S.C.
§ 405(g); 20 C.F.R. § 404.981.
obtain benefits, a claimant must demonstrate she is disabled.
20 C.F.R. § 404.1512(a). A claimant is disabled if 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 result in death or
which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C.
§ 423(d)(1)(A). A claimant must show disability
by the date last insured. Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005).
decide whether a person is disabled, the SSA uses a five-step
sequential process, asking (1) whether she is engaged in
“substantial gainful activity, ” (2) whether she
has a severe impairment or combination of impairments, (3)
whether the impairment meets or equals the severity of
anything in the Listing of Impairments, 20 C.F.R. Part 404,
Subpart P, App'x 1,  (4) whether she can perform
any of her “past relevant work” given her
“residual functional capacity”
(“RFC”),  and (5) whether there are a significant
number of jobs in the national economy she can perform given
her RFC, age, education, and work experience. 20 C.F.R.
§ 404.1520(a)(4). If the SSA finds disability
or no disability at a step, it will “not go on to the
next step.” 20 C.F.R. § 404.1520(a)(4).
was born in 1958. Tr. 193. She completed twelfth grade, Tr.
245, and has worked as a residential real estate agent, bank
worker, child-care worker, data-entry worker, and
teacher's aide, Tr. 246.
was insured to March 31, 2008. Tr. 12, 203. She applied for
benefits on July 11, 2014, alleging she had become disabled
on June 1, 2005, Tr. 193, from a nervous breakdown,
depression, lethargy-malaise, anxiety, panic attacks,
borderline personality disorder, post-traumatic stress
disorder (“PTSD”), fibromyalgia, and
osteoarthritis, Tr. 77, 244. The relevant period is June 1,
2005 (the alleged onset date), to March 31, 2008 (the date
last insured). Tr. 12, 13, 193, 203.
failed at each level of the administrative process. Tr. 84-85
(initial disability determination by state agency), 86-87
(reconsideration determination by state agency), 7-28
(decision by ALJ), 1-6 (action by Appeals Council).
Records Before the Alleged Onset Date of June 1,
or August 2004, Barnes received treatment at the Southern
Chester County Family Practice Associates Clinic for
depression and fatigue. Tr. 783-85. Her medication (Lexapro)
was left unchanged, and she was advised to check back in six
months. Tr. 785.
November 2004, Barnes was treated at Feeney Chiropractic Care
Centre for bilateral hand pain and “neck pain radiating
down the arm and into the middle and ring fingers on the
right hand” due to a recent incident while walking her
dog, and for “mild back pain” from a 1995 car
accident. Tr. 772. Her physical examination was mostly
normal, and she was recommended for chiropractic treatment
and a rehabilitation exercise program. Tr. 773-75.
January 2005, Barnes called Southern Chester to report
continued “burning, tingling, numbness in both hands
and problems with shoulders and arms” despite ongoing
chiropractic care. Tr. 280-82, 782-83. A few days later, she
had an appointment there and was advised to get an EMG of her
upper extremities. Tr. 281.
February 2005, Barnes got an EMG at Brandywine Valley
Neurology Clinic, which indicated she had bilateral carpal
tunnel syndrome. Tr. 293-95, 769-70. A week later, she
returned to Southern Chester to discuss the carpal tunnel
syndrome and continued cervical-spine pain, which was
radiating to her arms and hands. Tr. 771. She was scheduled
for carpal tunnel surgery on March 4, 2005, but expressed a
desire to “avoid this if possible.” Tr. 771.
in February 2005, Barnes obtained chiropractic care from
Jessica Bohl, D.C. Tr. 767-68.
March 2005, Barnes returned to Southern Chester and reported
progress with her neck pain due to the chiropractic care, a
fifty to sixty percent improvement in her carpal tunnel
syndrome, and a twenty to thirty percent improvement in her
bilateral grip strength. Tr. 795. The assessment was that
Barnes had shown improvement, had “responded well to
conservative care, ” and should continue chiropractic
care and trigger-point therapy. Tr. 795-96.
2005, Barnes returned to Southern Chester and reported that
her counselor “strongly feels” she should stay on
her medication (Lexapro) and that her neck was “doing
better” and is “improving.” Tr. 278, 780.
Her mental and physical examination showed no abnormal
findings. Tr. 279.
Records After the Alleged Onset Date of June 1,
September 2005, Barnes continued to obtain chiropractic care
from Bohl. Tr. 767-68.
December 2005, Barnes was treated at the Health Care Center
at Christiana, where she reported treatment for borderline
personality disorder by Judith Willets, Ph.D., stating that
treatment was no longer working, that she had gained thirty
pounds in three years, and that she was having difficulty
concentrating and finishing projects. Tr. 269. There were no
abnormal medical findings. Tr. 270, 809.
January to June 2006, Barnes met regularly with Dr. Willets
at the Pike Creek Psychological Center to treat depression
and anger, and she was consistently diagnosed with depression
and borderline personality disorder. Tr. 379-91. Dr. Willets
found that Barnes's symptoms of depression decreased on
four occasions (Tr. 380-82, 386, 391), increased on five
occasions (Tr. 379-80, 383, 390), and had no change on eleven
occasions (Tr. 379-82, 384-86, 389, 391). Dr. Willets labeled
Barnes's prognosis as “improvement” on five
occasions (Tr. 381, 384, 386, 391), “fluctuating”
on eleven occasions (Tr. 379-83, 385, 390-91), and
“guarded” on four occasions (Tr. 379, 382, 386,
August 2006, after moving to Florida, Barnes sought initial
treatment at the Harbor Cardiology and Vascular Center. Tr.
412-15. A complete physical and psychological exam revealed
no problems or symptoms and no abnormal findings concerning
her musculoskeletal and neurological systems. Tr. 412-15.
September 2006, Barnes underwent a mammogram screening. Tr.
31, 2007, Barnes returned to Harbor Cardiology seeking a
prescription refill for Lexapro and a referral for a new
psychiatrist. Tr. 443. She had a flat and apathetic affect.
September 2007, Barnes underwent another mammogram screening.
Records After the Date Last Insured of March 31,
August and November 2008, Barnes returned to Harbor
Cardiology, with no notable findings. Tr. 440-44.
November 2008, Barnes underwent another mammogram screening.
January 2009, Barnes underwent imaging tests for sinusitis
and abdominal pain. Tr. 397-99.
August 2014, Sally Rowley, Psy. D., a non-examining
psychological consultant, opined, based on the evidence to
date, Barnes's mental impairments had been non-severe but
her osteoarthritis and allied disorders had been severe
during the relevant period (June 1, 2005, to March 31, 2008)
and Barnes had not been disabled during the relevant period.
Tr. 79, 81-82. But she also stated, “There is
insufficient evidence to substantiate the presence of a
disorder, ” and, “There is insufficient evidence
to evaluate the claim.” Tr. 81-82.
September 2014, Usha K. Nandigam, M.D.-apparently
Barnes's primary care physician in Florida, Tr. 394, 469,
472, 481, 504-completed a medical source statement providing
opinions about Barnes. Tr. 516-18. She stated Barnes had been
treated over the last eight years at her office for
depression and panic attacks. Tr. 517. She opined Barnes was
limited to one-third of a workday in her ability to
concentrate, follow simple instructions, carry out simple
instructions, understand simple instructions, use judgment,
respond to supervision, respond to coworkers, respond to
usual work situations, and deal with changes in a routine
work setting. Tr. 517. She wrote she was “unable to
assess” Barnes's postural limitations, manipulative
limitations, and need to take breaks during the day; she
expressed no opinion on Barnes's exertional limitations,
visual limitations, and non-exertional limitations; and she
expressed no opinion on whether Barnes had limitations due to
a mental impairment. Tr. 517. She stated no opinion on
whether Barnes had been disabled from substantial work from
at least June 1, 2005. Tr. 517.
2016, Majd Alsamman, M.D., at Charlotte Behavioral Health
completed three “mental disorders” forms for
Barnes, indicating he had treated or examined her on June 30,
2016, and checking boxes next to statements that his opinions
were provided within a reasonable degree of medical certainty
and that Barnes's mental conditions had existed since
June 1, 2005. Tr. 669-71. He found she did not meet the
criteria for Listing 12.08 (personality disorder) but did
meet the criteria for Listing 12.04 (affective disorder) and
Listing 12.06 (anxiety-related disorder). Tr. 669-71.
Listing 12.04, Dr. Alsamman checked boxes indicating that
Barnes had an affective disorder with medically documented
persistence, either continuous or intermittent, of depressive
syndrome characterized by anhedonia or pervasive loss of
interest in almost all activities; appetite disturbance with
change in weight; sleep disturbance; psychomotor agitation or
retardation; decreased energy; feelings of guilt or
worthlessness; difficulty concentrating or thinking; and
thoughts of suicide “in the past.” Tr. 670. He
opined her disorder had resulted in a marked restriction of
activities of daily living; marked difficulties in
maintaining social functioning; and marked difficulties in
maintaining concentration, persistence, or pace. Tr. 670. He
opined she had a medically documented history of a chronic
affective disorder of at least two years' duration that
has caused more than a minimal limitation of ability to do
basic work activities, with symptoms or signs currently
attenuated by medication or psychosocial support; and
repeated episodes of decompensation, each of extended
duration; and a current history of one or more years'
inability to function outside a highly supportive living
arrangement, with an indication of continued need for such an
arrangement. Tr. 671.
Listing 12.06, Dr. Alsamman checked boxes indicating that
Barnes had generalized persistent anxiety experienced by
motor tension and autonomic hyperactivity; recurrent severe
panic attacks manifested by a sudden unpredictable onset of
intense apprehension, fear, terror, and sense of impending
doom occurring on the average of at least once a week; and
recurrent and intrusive recollections of a traumatic
experience, which are a source of marked distress. Tr. 669.
He opined her anxiety resulted in a marked restriction of
activities of daily living; marked difficulties in
maintaining social functioning; and marked difficulties in
maintaining concentration, persistence, or pace. Tr. 669. He
opined the anxiety resulted in a complete inability to
function independently outside the area of her home. Tr. 669.
He checked “Yes” next to, “Has the
patient's condition existed since 6/1/2005, ” but
added, “[S]ince [patient's] been seen by me.”
Tr. 669. He checked “Yes” next to, “I have
read the medical records before and after the onset date of
disability, ” but added, “Available.” Tr.
mental RFC assessment, Dr. Alsamman opined Barnes suffers
from “extreme” impairments in the ability to
maintain attention and concentration for extended periods; to
perform activities within a schedule; to maintain regular
attendance; to be punctual within customary tolerances; to
sustain an ordinary routine without special supervision; to
work in coordination with or proximity to others without
being distracted by them; to make simple work-related
decisions; to complete a normal workday and workweek without
interruptions from psychologically based symptoms; to perform
at a consistent pace without an unreasonable number and
length of rest periods; to interact appropriately with the
general public; to accept instructions and respond
appropriately to criticism from supervisors; to get along
with coworkers or peers without distracting them or
exhibiting behavioral extremes; to maintain socially
appropriate behavior and to adhere to basic standards of
neatness and cleanliness; and to respond appropriately to
changes in the work setting. Tr. 672-73. He also opined she
suffers from “marked” impairments in the ability
to remember locations and work-like procedures; to understand
and remember very short and simple instructions; to
understand and remember detailed instructions; to carry out
very short and simple instructions; to carry out detailed
instructions; to ask simple questions; to request assistance;
to be aware of normal hazards and take appropriate
precautions; to travel in unfamiliar places or use public
transportation; and to set realistic goals or make plans
independently of others. Tr. 672-73. In a comments section,
Dr. Alsamman diagnosed Barnes with severe major depression,
PTSD, and generalized anxiety disorder as well as a history
of back and neck injury. Tr. 673. He checked
“yes” next to, “Has the patient been
disabled from substantial gainful activity since 6/1/2005,
” but added, “since she has been seen by
me.” Tr. 673.
January 2017, Dr. Alsamman wrote on a prescription form that
Barnes has diagnoses of chronic PTSD, severe recurrent major
depression, anxiety, and panic disorder; that she is
permanently disabled and has been disabled since 2000; and
that she continues to have symptoms and receive medications
and therapy. Tr. 868.
conducted a hearing on January 12, 2017, Tr. 47-76, and
issued a decision on May 17, 2017, Tr. 7-28.
one, the ALJ found Barnes had not engaged in substantial
gainful activity during the relevant period (June 1, 2005, to
March 31, 2008). Tr. 13.
two, the ALJ found that Barnes, through the date last insured
(March 31, 2008), had had “medically determinable
impairments” of “cervical/dorsal myositis,
osteoarthritis, radiculitis and myalgia, bilateral carpal
tunnel syndrome, depressive/adjustment and personality
disorders.” Tr. 13. The ALJ further found that Barnes,
through the date last insured (March 31, 2008), had not had
“an impairment or combination of impairments”
that had “significantly limited her ability to perform
basic work-related activities for 12 consecutive
months” and therefore had not had “a severe
impairment or combination of impairments[.]” Tr. 13.
Having found no disability during the relevant period (June
1, 2005, to March 31, 2008) at step two, the ALJ did not
proceed to the next steps. Tr. 21.
ALJ's summary and analysis of the evidence to explain his
findings spans nine single-spaced pages. Tr. ...