DOUGLAS N. FRAZIER, Magistrate Judge.
This cause is before the Court on Plaintiff's Complaint (Doc. 1) filed on March 7, 2013. Plaintiff, Suzanne Brownell seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying her claim for a period of disability, disability insurance benefits, and supplemental security income. The Commissioner filed the Transcript of the proceedings (hereinafter referred to as "Tr." followed by the appropriate page number), and the parties filed legal memoranda in support of their positions. For the reasons set out herein, the decision of the Commissioner is
The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The impairment must be severe, making the claimant unable to do her previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911. Plaintiff bears the burden of persuasion through step four, while at step five the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146, n.5 (1987).
On October 13, 2006, Plaintiff filed an application for disability, disability insurance benefits, and supplemental security income asserting a disability onset date of August 1, 2006. (Tr. p. 170-184). Plaintiff's application was denied initially on January 22, 2007, and denied upon reconsideration on June 12, 2007. (Tr. p. 95-98). The first hearing was held before Administrative Law Judge Dawn B. Lieb on February 26, 2008. (Tr. p. 32-78). ALJ Lieb issued an unfavorable decision on September 17, 2008. (Tr. p. 101-114). On August 17, 2010, the Appeals Council entered an Order which remanded this case to the ALJ for further consideration. (Tr. p. 116-118). On April 21, 2011, a second hearing was held before ALJ Larry J. Butler ("ALJ"). (Tr. p. 79-94). The ALJ issued an unfavorable decision on June 10, 2011. (Tr. p. 14-25). The Appeals Council denied Plaintiff's request for review on January 17, 2013. (Tr. p. 1-5). The Plaintiff filed a Complaint (Doc. 1) in the United States District Court on March 7, 2013. This case is now ripe for review. The parties consented to proceed before a United States Magistrate Judge for all proceedings. (Doc.27).
An ALJ must follow a five-step sequential evaluation process to determine if a claimant has proven that he is disabled. Packer v. Commissioner of Social Security, 542 F. App'x 890, 891 (11
The ALJ determined that Plaintiff met the Social Security Act's insured status requirements through September 30, 2009. (Tr. p. 16). At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 1, 2006, the alleged onset date. (Tr. p. 16). At step two, the ALJ found that the Plaintiff suffered from the following severe impairments: hepatitis C, lumbar degenerative disk disease, knee pain, and hip pain, citing 20 C.F.R. § 404.1520(c) and 416.920(c). (Tr. p. 16). At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926. (Tr. p. 19). At step 4, the ALJ determined that the Plaintiff has the residual functional capacity ("RFC") to perform a wide range of light work which includes lifting and/or carrying 20 pounds occasionally and 10 pounds frequently, standing and/or walking for 6 hours total in an 8-hour workday, sitting for 6 hours total in an 8-hour workday, occasionally balancing, stooping, kneeling, crouching, crawling, and, climbing ramps, stairs, ropes, ladders, and scaffolds. (Tr. p. 19, 23). The ALJ found that plaintiff is capable of performing her past relevant work as an insurance clerk, and that this work does not require the performance of work-related activities precluded by Plaintiff's RFC. (Tr. p. 24). The ALJ concluded that Plaintiff is not under a disability as defined in the Social Security Act, from August 1, 2006 through the date of the decision. (Tr. p. 24).
The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11
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 evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11
Plaintiff raises four issues on appeal. As stated by Plaintiff they are:
Plaintiff argues that the ALJ erred in finding that Plaintiff could perform a full range of light work which conflicts with his finding that Plaintiff had numerous postural limitations, such as only occasionally balancing, stooping, kneeling, crouching, crawling, and climbing ramps, stairs, ropes, ladders, and scaffolds. The Commissioner asserts that Plaintiff's argument is based upon an ALJ using the Medical Vocational Grids, whereas here, the ALJ determined that Plaintiff could return to her past relevant work and did acknowledge that Plaintiff has postural limitations. In the instant case, the ALJ determined, not as Plaintiff alleges that she could perform a full range of light work, but rather that she could perform a "wide range of light work." (Tr. p. 23).
Light work is defined as:
20 C.F.R. 404.1567, 416.967. Pursuant to SSR 85-13
Plaintiff argues that the ALJ erred in not finding Plaintiff's Global Assessment of Function ("GAF") scores to show that Plaintiff had moderate difficulties in social, occupational, or school functioning. The Commissioner responds that the ALJ considered Plaintiff's GAF scores when making his determination. The ALJ did cite to the Diagnostic and Statistical Manual of Mental Disorders when stating that GAF scores in the range of 51-60 "reflect only moderate symptoms or moderate difficulty in social, occupational, or school functioning." (Tr. p. 18). However, the ALJ determined that Plaintiff had mild limitations in daily living, social functioning, and concentration, persistence or pace. (Tr. p. 18). Plaintiff cites to McCloud v. Barnhart, 166 F. App'x 410 (11
"The GAF Scale describes an individual's overall psychological, social, and occupational functioning as a result of mental illness, without including any impaired functioning due to physical or environmental limitations." Mathis v. Astrue, 2008 WL 876955, *7, n. 4 (M.D. Fla. March 27, 2008) (citing Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") (4th ed. 1994) at 32). A GAF score is a subjective determination based on a clinician's judgment of a person's overall level of functioning. Wilson v. Astrue, 653 F.Supp.2d 1282, 1293 (M.D. Fla 2009) (citation omitted). Even though GAF scores have been cited in social security cases, "the Commissioner has declined to endorse the GAF score for `use in the Social Security and SSI disability programs,' and has indicated that GAF scored have no `direct correlation to the severity requirements of the mental disorders listings.'" Wind v. Barnhart, 133 F. App'x 684, 692 n.5 (11
In the instant case, the ALJ did consider Plaintiff's GAF scores. The ALJ found after considering the GAF scores as well as the record as a whole, that Plaintiff had only mild limitations in daily living, social functioning, and concentration, persistence or pace. The ALJ did not err in determining Plaintiff could perform a wide range of light work with her GAF scores.
Next, Plaintiff asserts that the ALJ erred in not finding Plaintiff's mental impairments severe at step two of the sequential evaluation. At this step, "[a]n impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience." McDaniel v. Bowen, 800 F.2d 1026, 1031 (11
According to the Eleventh Circuit, "[n]othing requires that the ALJ must identify, at step two, all of the impairments that should be considered severe," but only that the ALJ considered the claimant's impairments in combination, whether severe or not. Heatly v. Comm'r of Soc. Sec., 382 F. App'x 823, 825 (11
In the instant case, the ALJ determined that Plaintiff has the following severe impairments: hepatitis C, lumbar degenerative disk disease, knee pain, and hip pain. (Tr. p. 16). The ALJ carefully considered Plaintiff's mental impairments in combination with Plaintiff's other impairments. However, the ALJ failed to include Plaintiff's impairments of panic disorder and auditory hallucinations as discussed in part II. C of this Opinion and Order, and therefore, remand is warranted for the Commissioner to evaluate all of Plaintiff's impairments in combination.
Plaintiff asserts that the ALJ erred in determining that Plaintiff could return to her past relevant work as an insurance clerk, semi-skilled with an SVP of 4 at a sedentary level of exertion. (Tr. p. 24). The ALJ determined that Plaintiff could perform this job as she actually performed it or as it is generally performed. (Tr. p. 24). Plaintiff argues that the RFC was inconsistent with the requirements of Plaintiff's past relevant work as she performed it; and the ALJ improperly classified Plaintiff's past relevant work as an insurance clerk. The Commissioner asserts that even if Plaintiff's RFC is inconsistent with the requirements of the insurance clerk job, the ALJ found Plaintiff could perform the work as generally performed in the economy. The Commissioner also argues that the even if the ALJ improperly classified Plaintiff's past relevant work, it is not reversible error because Plaintiff failed to meet her burden to show that she cannot perform her past relevant work.
A plaintiff bears the burden of showing that she can no longer perform her past relevant work as she actually performed it, or as it is performed in the general economy. Waldrop v. Comm'r. of Soc. Sec., 379 F. App'x. 948, 953 (11
An ALJ must consider all of the duties of a plaintiff's past relevant work and evaluate a plaintiff's ability to perform that work in spite of his impairments. Levie v. Comm. of Soc. Sec., 514 Fed. App'x. 829, 830 (11
In the instant case, Plaintiff provided that in her past relevant work she processed insurance claims over the telephone using a computer. (Tr. p. 238). She was required to sit for 8 hours in and 8-hour workday. (Tr. p. 238). In the ALJ's RFC, the ALJ determined that Plaintiff was limited to sitting for 6 hours in an 8-hour workday. Therefore, the Plaintiff would be unable to perform her past relevant work which required that she sit for a total of 8 hours in an 8-hour workday, and her RFC does not permit a return to her past relevant work as she actually performed it.
The ALJ determined that plaintiff's past relevant work is as an insurance clerk, and she could perform this work as it is generally performed. Plaintiff's past relevant work was to process insurance claims over the telephone using a computer. An insurance clerk, DOT 219.387-014, has the primary duty of compiling records of insurance policies covering risks to property and equipment of industrial organizations. (Doc. 24, Exh. A). The past relevant work as described by Plaintiff does not comport with the description of an insurance clerk and the duties of an insurance clerk. The ALJ failed to reconcile the testimony of Plaintiff as to her past relevant work with the duties of an insurance clerk. Therefore, the Court will remand this case for the ALJ to properly consider Plaintiff's past relevant work in combination with Plaintiff's RFC.
Plaintiff argues that the ALJ erred in failing to consider Plaintiff's panic attacks and auditory hallucinations in determining the RFC. The Commissioner asserts that even though Plaintiff was diagnosed with panic attacks, a diagnosis by itself does not show the severity of the impairment or the limitations for work. At the fourth step in the evaluation process, the ALJ is required to determine a claimant's RFC and based on that determination, decide whether the plaintiff is able to return to his or her previous work. McCruter v. Bowen, 791 F.2d 1544, 1547 (11
Plaintiff argues that the ALJ failed to properly consider Plaintiff's use of a cane. The Commissioner responds that the medical records in support of using a cane were not substantial, and the ALJ specifically mentioned Dr. Berdick's treating notes which were mainly illegible and his prescription for the cane, but found that there was no supporting clinical findings to indicate a cane was necessary. (Tr. p. 23). Social Security Ruling 96-9p states that a hand-held assistive device is medically required where medical documents "establish the need for a hand-held assistive devise to aid in walking or standing, and describe the circumstances for which it is needed." SSR 96-9p, 1996 WL 374185, at *7 (1996).
The ALJ found that even though Kenneth Berdick, M.D. prescribed a walking cane for Plaintiff, "there are no supporting clinical findings or laboratory diagnostic techniques demonstrating any significant functional limitations or the need for a walking cane." (Tr. p. 23). John C. Kagan, M.D. saw Plaintiff on September 10, 2007. (Tr. p. 788). Dr. Kagan found that Plaintiff has a permanent injury as a result of a car accident to her right knee and determined that she has a permanent impairment. (Tr. p. 788-89). Dr. Kagan gave a prognosis that she will need to consider a right knee replacement. (Tr. p. 528,788). On October 5, 2010, Plaintiff went to First Choice Pain Care Clinic of Southwest Florida and saw Amy Griswold, M.D. (Tr. p. 769). Dr. Griswold diagnosed Plaintiff with muscle atrophy in the left buttock, left hamstrings, and left quads. (Tr. p. 769). Plaintiff's gait was abnormal with a weak left leg. (Tr. p. 769). Dr. Griswold found that Plaintiff's muscle atrophy in the right leg was not as bad as in the left. (Tr. p. 769). Dr. Berdick saw Plaintiff from January 19, 2011 through April 15, 2011, however his medical records are nearly illegible. (Tr. p. 820-824). On April 15, 2011, Dr. Berdick prescribed a walking cane for Plaintiff. (Tr. p. 820). The Court determines that there are medical records that establish the need for Plaintiff to use a cane as a hand-held assistive devise to aid in walking or standing due to her right knee problems stemming from the car accident and her left side muscle atrophy. Therefore, on remand, the ALJ shall take into consideration Plaintiff's need for a cane when determining Plaintiff's RFC and the jobs she is able to perform.
Upon consideration of the submissions of the parties and the administrative record, the Court finds that the Decision of the ALJ was supported by substantial evidence in considering Plaintiff's postural limitations and GAF scores, however, the Court determines that the Decision of the ALJ was not supported by substantial evidence as to all the other issues raised in this case.