T:\109cv1761\final order (jamiah).wpd
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 1 of 58
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GRACIE MARIE JAMIAH,
CIVIL ACTION FILE NO.
MICHAEL J. ASTRUE,
Commissioner of Social
1 AND MEMORANDUM OPINION
Plaintiff, Gracie Marie Jamiah, (“Plaintiff”), brought this action pursuant to
§ 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the
final decision of the Commissioner of the Social Security Administration
(“the Commissioner”) denying her application for disability insurance benefits.2 For
The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73. [See
Dkt. Entriesdated 1/25/2010]. Therefore, this Order constitutes a final Order of the Court.
Title II of the Social Security Act provides for federal disability insurance
benefits (hereinafter “DIB”). 42 U.S.C. § 401 et seq
. Title XVI of the Social SecurityAct, 42 U.S.C. § 1381, et seq
., provides for supplemental security income benefits forthe disabled (hereinafter “SSI”). Title XVI claims are not tied to the attainment of aparticular period of insurance disability. Baxter v. Schweiker
, 538 F. Supp. 343, 350(N.D. Ga. 1982). The relevant law and regulations governing the determination ofdisability under a claim for DIB are identical to those governing the determination
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 2 of 58
the reasons stated below, the Court REVERSES AND REMANDS
Plaintiff initially filed an application for DIB on April 12, 2006, alleging
disability commencing on August 2, 1997. [Record (hereinafter “R”) 102-07]. Plaintiff
was insured for DIB through December 31, 2002. [See
R7]. Plaintiff’s application was
denied initially and on reconsideration. [R64-65]. Plaintiff then requested a hearing
before an Administrative Law Judge (“ALJ”). [R78]. An evidentiary hearing was held
on July 10, 2008. [R22-63]. Following the hearing, the ALJ issued an unfavorable
decision on July 25, 2008. [R4-15]. Plaintiff sought review of the ALJ’s decision, and
the Appeals Council denied Plaintiff’s request for review on April 17, 2009, rendering
the ALJ’s decision the final decision of the Commissioner. [R1-3].
Plaintiff then filed a civil action in this Court on June 18, 2009, seeking review
of the Commissioner’s final decision. Gracie Marie Jamiah v. Michael J. Astrue
under a claim for SSI. Davis v. Heckler
, 759 F. 2d 432, 435 n.1 (5th Cir. 1985). Under42 U.S.C. § 1383(c)(3), the judicial provisions of 42 U.S.C. § 405(g) are fullyapplicable to claims for SSI. In general the legal standards to be applied are the sameregardless of whether a claimant seeks DIB, to establish a “period of disability,” or torecover SSI. Different statutes and regulations, however, apply to each type of claim.
Plaintiff has only applied for DIB. Therefore, to the extent that the Court cites to SSIcases, statutes, or regulations, they are equally applicable to Plaintiff’s DIB claim.
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 3 of 58
Action File No. 1:09-CV-01761-AJB. [Doc. 2]. The answer and transcript were filed
on September 18, 2009. [Docs. 8-9]. Plaintiff filed her brief on November 16, 2009,
[Doc. 15], and the Commissioner filed a response on December 11, 2009, [Doc. 16].
Plaintiff also filed a reply brief. [Doc. 24]. The undersigned held a hearing on
February 24, 2010. [See
Doc. 26]. The matter is now before the Court upon the
administrative record, oral argument, and the parties’ pleadings and briefs and is ripe
for review pursuant to 42 U.S.C. § 405(g).
STATEMENT OF FACTS
July 10, 2008, Evidentiary Hearing
At the time of the July 10, 2008, hearing, Plaintiff was 55 years old. [R28]. She
had a high school education and an associates degree. [R53]. Plaintiff testified that in
December 2001, her grandson and maybe her daughter were living with her.3 Plaintiff
had adopted her grandson, and he had lived with Plaintiff since he was born. Her
grandson was 15 at the time of the hearing. [R29]. Plaintiff had a driver’s license back
in 2002. She had a home framing business in 1997 that lasted less than a year. [R30].
Plaintiff also had a part time desk job in June 2001. [R30-31].
According to notations from the medical record, it appears that Plaintiff’s
daughter moved out around June or July of 2002. [See
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Plaintiff testified that prior to December 2002 she had daily anxiety attacks and
would start crying without reason. [R32]. Plaintiff would not get out of bed because
of her depression and would stay in the house 24/7. [R32-33]. Plaintiff reported that
doctors had trouble controlling her blood pressure at this time, which led to dizziness
and weakness. [R33]. Plaintiff also believed that she had gout in her hands during this
time. [R33]. Plaintiff would get nervous whenever she was around more than two
people because she was concerned that they were thinking about her. [R33-34].
Plaintiff was easily distracted and could only concentrate on one thing at a time. [R33].
Plaintiff testified that she had been in the military and was honorably discharged
in 1984 or 1985. The following exchange then occurred:
Well now let me ask you, what’s the relevance of this
Well I was going to - - her disability rating, the first rating
was before the date last insured, and the - -
Yeah, but is that - - why is that relevant to my standards of
Although it’s a different standard, I think the Social Security
Rules and Regulations require that substantial consideration be given toa VA disability rating, so to the extent that it was before - -
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 5 of 58
All right. Can you - - if you know the answers to these
questions, counsel, I’ll take them for you. Did she have a disabilityrating?
She had a disability rating that was 30 percent for the
depression that was increased to 50 percent. The 30 percent was beforethe [date last insured], and the 50 percent was as of the VA mentalexamination performed on December 20, 2004.
And that . . . date is also the date they did the 100 percent, she
was granted 100 percent unemployability rating as of that date too.
Plaintiff testified that she had sought mental heath treatment at the VA hospital
in Atlanta and through other providers prior to December 2002. [R38-39]. Plaintiff
stated that she had a panic attack in June 1996 and another in 1997. [R39-40].
According to Plaintiff, a Dr. Kelly recommended that Plaintiff reduce her hours to part
time work and then suggested that she resign because she could not come to work on
a regular basis. [R40-41]. Plaintiff was not able to sleep well and would frequently
wake up at night. [R41-43]. Plaintiff indicated that Dr. Saldivia had treated her every
two or three months since 1998. [R44]. Plaintiff indicated that her condition in 2006
was worse than it was in 2002. [R45].
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Corrine Osby, a friend of Plaintiff’s since 1998 or 1999, also testified at
Plaintiff’s administrative hearing. [R47]. Osby testified that she talked with Plaintiff
regularly either in person or over the telephone. [R48]. Plaintiff had difficulty being
around a lot of people and would make embarrassing comments. [R48]. Plaintiff had
a poor short term memory. Osby indicated that these problems occurred around 2002
up until the hearing and that Plaintiff had gotten a little bit worse. [R49]. Osby also
testified that Plaintiff had mood swings and would “trip out” at a teasing comment by
The Vocational Expert (“VE”) testified that Plaintiff’s past work was
semiskilled. [R54]. The VE concluded that an individual with the following
characteristics could perform work in the economy: (1) Plaintiff’s age, education, and
work history; (2) ability to perform light exertional work that involves simple, two-step
instructions, routine and repetitious tasks and no strict production quotas; and
(3) ability to only have occasional contact with the public, co-workers, and supervisors.
[R54]. Specifically, the VE stated that this individual could perform unskilled, light
work of bone picker, fruit cutter, or racker. None of these job involved interaction with
the public. [R55]. These jobs did have a work flow and involved frequent handling.
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 7 of 58
[R57]. The VE testified that if the above individual was limited to occasional bilateral
use of hands, the individual could still perform the racker job. [R57-58].
The VE next testified that an individual with the following characteristics could
not perform competitive work: (1) Plaintiff’s age, education, and work experience; and
(2) frequent or occasional impairment in: (a) remembering work-like procedures;
(b) maintaining attention for two-hour segments; (c) sustaining work without special
supervision; (d) working close to others without being distracted; (e) having a normal
work day or week; (f) performing at a consistent pace; (g) responding to changes in the
work setting; (h) accepting instruction; (i) responding to criticism; and (j) dealing with
normal work. [R58-59, 60]. The VE explained that to perform competitive work, an
individual must be able to consistently pay attention, deal with stress, follow
instructions, and get along with others. [R60-61].
Department of Veterans Affairs Disability Determination
According to the May 3, 2007, decision by the Board of Veterans’ Appeals,
Plaintiff was rated 30% disabled for a depressive disorder in 1990. [R366]. In 2007,
the Board determined that Plaintiff met the 50% disability criteria for her depressive
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 8 of 58
disorder. [R363, 370].4 This disability rating along with Plaintiff’s disability ratings
from endometriosis (30%) and left cyst removal (10%) meant that Plaintiff met the
criteria for total disability on individual unemployability.5 [R364, 373-74].
A July 23, 1998, medical note indicates that Plaintiff was referred for evaluation
because of a history of sexual trauma. [R614, 1038, 1207]. Plaintiff stated that she was
sexually abused by an older brother between the ages of 4 and 12, but that she did not
want to examine her feelings until she began experiencing panic attacks in 1997.
[R614-15, 1038-39]. The note indicated that Plaintiff quit her job at the post office
because the job was causing emotional pain. Plaintiff was described as talking slowly
and deliberately and having difficulty discussing emotional issues. Plaintiff represented
This alteration in the disability determination appears to be retroactive to
March 2001 because this is the date that Plaintiff initially requested an increased ratingfor the depressive disorder. [See
This total disability determination appears to be retroactive to July 2002,
which is when Plaintiff submitted claims for total disability. [R365].
The administrative record is two volumes and constitutes 1,683 pages.
Given the length, the Court’s summary of the medical record focuses on recordsrelevant to the insured period (August 1997 through December 2002) and on therecords that the parties assert are relevant to Plaintiff’s disability claim. Also, all of therecords are treatment notes from the VA.
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 9 of 58
that she had not thought of suicide since 1991. Plaintiff was described as having a
slender build, being casually dressed with a neat appearance, having difficulty
controlling her emotions, and having a memory grossly intact. Plaintiff was assessed
as follows: (1) rule out Post Traumatic Stress Disorder (“PTSD”) on Axis I;
(2) deferred on Axis 2; (3) severe history of trauma on Axis 4; and (4) a Global
Assessment of Functioning Score (“GAF”)7 of 60 on Axis 5. [R615, 1039, 1208]. The
The undersigned has previously described the GAF score as “rat[ing] an
individual’s overall level of psychological, social, and occupational functioning.”Volley v. Astrue
, No. 1:07-cv-138-AJB, 2008 WL 822192, *2 n.6 (N.D. Ga. Mar. 24,2008) (citing Lozado v. Barnhart
, 331 F. Supp. 2d 325, 330 n.2 (E.D. Pa. 2004) (citingDiagnostic and Statistical Manual of Mental Disorders (4th Ed.) (“DSM-IV” at 32)).
The GAF ranges
from 0 to 100 and is divided into 10 ranges of functioning, requiring theexaminer to pick a value that best reflects the individual’s overall level offunctioning using either symptom severity or functioning. . . . Each rangecan be described as follows: . . .; a GAF score of in the range of 41-50indicates “serious symptoms (e.g. suicidal ideation, severe obsessionalrituals, frequent shoplifting) OR any serious impairment in social,occupational, or school functioning (e.g. no friends, unable to keep ajob);” a GAF score in the range of 51-60 indicates “moderate symptoms(e.g. flat affect and circumstantial speech, occasional panic attacks) ORmoderate difficulty in social, occupational, or school functioning (e.g. fewfriends, conflicts with peers or coworkers);”. . . .
, 331 F. Supp. 2d at 330 n.2 (citing DSM-IV at 32, 34)). Also, aGAF score between 61 and 70 indicates some mild symptoms like depressed mood andmild insomnia or some difficulty in social or occupational functioning, but generallythe individual is functioning pretty well and has some meaningful interpersonal
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plan was to have Plaintiff follow up at the mental health clinic for further evaluation,
but not to prescribe medication because Plaintiff did not want to take it. [R615-16,
A medical note from October 22, 1998, indicated that lab tests revealed that
Plaintiff was diabetic. The doctor believed that the diabetes could be controlled by diet
and that Plaintiff should avoid sugar. [R1036].
Plaintiff began seeing a social worker, Martha McDonald, in November 1998.8
The November 16 report from the visit indicated that Plaintiff believed that something
was “terribly wrong feeling unhappy with profound emptiness.” While still employed,
Plaintiff saw a psychiatrist for six months following a severe panic attack and found the
treatment helpful in reducing the attacks and in making her sleep better. [R1033].
Plaintiff worked for the Post Office from 1985 to 1997 as an administrative clerk.
. At that time, Plaintiff’s daughter and six year old grandson lived with her.
DSM-IV at 34.
Plaintiff’s treatment relationship continued with McDonald on a regular
basis until January 2007 when McDonald left the “alpha team.” [See
R1214]. Theundersigned has only summarized McDonald’s notes for the period when Plaintiff wasinsured, i.e.
, those notes between November 1998 and December 2002.
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 11 of 58
Plaintiff also began visiting a psychiatrist, Dr. Aida Saldivia, on December 2,
1998.9 Plaintiff reported having her first panic attach in 1993 during her mother’s
terminal illness and then having at least three severe panic attacks thereafter. Plaintiff
was sexually abused by an older brother when she was between 4 and 12 years old. She
also had previously tried to commit suicide on two occasions, once when she was 12
and the other time when she was 30. Dr. Saldivia indicated that Plaintiff was alert and
oriented, but her affect was “a bit labile” because she often cried when discussing her
symptoms, had a depressed mood, and was angry. [R1031].
Dr. Saldivia assessed Plaintiff with: (1) depressive disorder and symptoms of
PTSD on Axis I; (2) endometriosis, diverticulosis, and hypertension on Axis II;
(3) taking care of her grandson on Axis IV; and (4) a GAF of 58 on Axis V. [R1032].
Plaintiff returned to see Dr. Saldivia on December 11 and reported feeling less
depressed, less irritable, and better able to deal with stressors since starting the Zoloft.
Plaintiff was alert, was oriented, had a less sad affect, was less depressed, was less
anxious and irritable, and had good insight and judgment. Dr. Saldivia observed that
noticeable improvement had occurred with the Sertraline (an anti-depressant)
Plaintiff was treated regularly by Dr. Saldivia until July 2006. [R1281].
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Plaintiff saw McDonald on December 14, who found Plaintiff oriented with a
cautious mood and clear thoughts. Plaintiff had fair judgment and insight. [R1028].
Dr. Saldivia saw Plaintiff on December 28, 1998, and found that Plaintiff had
depression with PTSD that was currently improving on a low dose of Zoloft. [R1027].
Plaintiff returned to see McDonald on December 31, who found Plaintiff to be oriented
with a bright mood and congruent affect. Plaintiff had good insight and fair judgment.
On January 22, 1999, Plaintiff was anxious with a sad mood and constricted
affect. Plaintiff’s concentration was fair, and her judgment and insight were adequate.
Dr. Saldivia saw Plaintiff on March 4, 1999, and assessed Plaintiff with
depression and PTSD. Plaintiff also reported having a panic attack in February, but she
had good appetite, fair energy, and decent sleep. [R1023]. McDonald noted that
Plaintiff reported on March 17, 1999, with a bright and hopeful mood, decreased
anxiety, panic-like symptoms, and depression. At this meeting, Plaintiff was well
groomed, with a bright smile. She had a calm mood and full range in affect. Her
thoughts were clear and organized, and her concentration and memory were intact.
[R1022]. On April 29, Plaintiff reported to McDonald that her depressive symptoms
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 13 of 58
and anger were improving, she enjoyed daily tasks, and had more patience for her
grandson. Plaintiff was oriented and calm with a polite mood and normal affect. She
had clear and organized thoughts with adequate judgment and insight. [R1021].
In May 1999, Plaintiff reported to Dr. Saldivia and McDonald that she was very
happy with the results of her treatment. She was alert and had bright affect, euthymic
mood, and organized associations. [R1018-19]. Dr. Saldivia provided the following
diagnosis: “PTSD fro[m] sexual abuse, and sup[er]imposed depression, now improved
with treatment.” Plaintiff was to continue with Sertraline. [R1019].
Plaintiff reported to McDonald on June 16, 1999, as well dressed and groomed.
Plaintiff was oriented with a bright mood and full range in affect. Plaintiff’s thoughts
were more clear and organized with fewer tangential thoughts. [R1017].
On August 12, 1999, Dr. Saldivia assessed Plaintiff with depression that was
more symptomatic because of stress. Dr. Saldivia found Plaintiff’s affect to be “a bit
inappropriate, with tendency to smile while describing stressors.” The doctor increased
Plaintiff’s Sertraline and encouraged her to keep appointments with the therapist.
[R1015]. Four days later, McDonald noted that Plaintiff reported having minor
setbacks. Plaintiff was oriented and pleasant and calm and had a bright affect and
positive mood. [R1014]. On August 27, Plaintiff reported to McDonald that changes
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in her medication had helped reduce the panic-like symptoms and sleep disturbance.
McDonald found Plaintiff’s insight to be adequate and her judgment limited, but that
Plaintiff was oriented and cheerful with a bright mood. [R1012].
On September 15, McDonald reported that Plaintiff was well dressed, but
anxious with a guarded mood. Plaintiff had clear and organized thoughts with an intact
memory, adequate insight, and fair judgment. [R1011]. On September 27, Dr. Saldivia
found that Plaintiff had depressive disorder that was effected by a crisis with her
daughter. Plaintiff was continued on Sertraline and given hydroxizine for anxiety.
[R1010]. McDonald reported that Plaintiff was distraught and tearful on September 29.
Her memory was intact while her insight and judgment were adequate and fair.
[R1008]. On October 19, Plaintiff presented to McDonald as casually and neatly
dressed but with a depressed and tearful mood, anxious behavior, and constricted affect.
Plaintiff’s memory and concentration were intact. [R1007].
On November 20, 1999, Dr. Saldivia noted that Plaintiff reported to be much
improved. She was alert, oriented, cooperative with a pleasant affect and euthymic
mood. Plaintiff was diagnosed with stable depression and PTSD and was told to
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In Plaintiff’s visits with McDonald in December 1999, Plaintiff was well-dressed
with a pleasant mood and calm behavior. [R1003-04]. On February 9, 2000,
McDonald reported that Plaintiff was casually and neatly dressed, had a positive and
bright mood, calm behavior, and full range in affect. Plaintiff’s memory and
concentration were intact while her judgment was fair and insight was adequate.
[R1002]. On March 6, 2000, Plaintiff reported to McDonald with an anxious mood,
guarded behavior, and constricted affect. Plaintiff had adequate insight and limited
Dr. Saldivia saw Plaintiff on March 20, 2000, and observed that Plaintiff was
alert, oriented, “moodless depressed,” and that she had a restricted affect, organized
associations, and difficulty verbalizing. Plaintiff was diagnosed with PTSD and fairly
stable depression. She was to continue with Sertraline and Vistaril for anxiety.
McDonald reported on March 23 that Plaintiff had depressed mood, anxious
behavior, and a constricted affect. Plaintiff’s thoughts were clear and organized, and
her memory and concentration were intact. [R999]. McDonald reported on April 5,
2000, that Plaintiff was going to take her father to New Orleans to visit a sick brother.
Plaintiff was casually dressed, had a quiet mood, anxious behavior, and constricted
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affect. Plaintiff’s memory and concentration were fair. [R998]. On June 6, McDonald
noted that Plaintiff was casually dressed with depressed mood, anxious behavior, and
constricted affect. Plaintiff’s thoughts were clear and tangential. She indicated having
chronic sadness and disturbing negative thoughts about herself. [R987].
On June 26, 2000, Dr. Saldivia found that Plaintiff had depression with some
PTSD components, a mild increase in irritability, and an increase in problems with her
boyfriend and daughter. Plaintiff continued with Zoloft, but Dr. Saldivia started
Plaintiff on Buspar for her severe anxiety. [R983].
Plaintiff saw McDonald on July 13, 2000, and presented causally dressed with
depressed mood, anxious behavior, and constricted affect. Plaintiff’s thoughts were
clear and tangential while her memory and concentration were fair. Also, Plaintiff’s
judgment was limited and her insight was adequate. [R982]. Plaintiff presented to
McDonald on July 28 with a bright mood, enthusiastic behavior, and full affect. Her
thoughts were clear and organized while her memory and concentration were intact.
[R980]. McDonald made similar observations about Plaintiff on August 7 and August
14. She also referred Plaintiff to weekly group therapy. [R977-78].
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 17 of 58
Beginning around August 2000 and continuing past December 31, 2002,10
Plaintiff attended a Women’s Group run by McDonald. Except where otherwise stated,
Plaintiff participated in these group sessions, she had fairly clear and organized
thoughts, she had fair memory and concentration, and she had good, fair, or adequate
insight and judgment. [R 862-64, 868-70, 877-78, 880, 888-89, 892, 894-95, 903-05,
908, 913 939-40, 943, 950-51, 964-66, 968, 970, 976]. For a period of time between
May 4, 2001, and August 31, 2001, Plaintiff stopped attending the women’s groups, but
she started again on August 31. [See
In September 2000, Dr. Saldivia found Plaintiff to be oriented with a pleasant
affect, appropriate mood, organized associations, and good insight and judgment. The
doctor assessed Plaintiff with depression and PTSD symptoms that had improved with
Plaintiff continued to meet with the Women’s Group for at least four years
after the December 31, 2002, last insured date. The progress notes between May 2006and February 4, 2003, from the Women’s Group generally reflect that Plaintiff wassuffering from PTSD due to childhood sexual abuse while the earlier notes indicatedthat Plaintiff had dysthymia but was meeting treatment goals. They were otherwiseunremarkable concerning Plaintiff’s mood, behavior, thoughts, memory, andconcentration. [R621-22, 639-40, 652, 655, 663, 672-74, 725-26, 732-38, 741, 744,778-81, 815-16, 818-20, 831-34, 842, 848, 860, 863-64, 867-70]. One progress notefrom February 10, 2003, indicated, however, that although Plaintiff participated ingroup discussion, she had outbursts of inappropriate laughter. Plaintiff had fair insightand limited judgment during this group meeting. [R859].
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On December 18, 2000, Plaintiff was described in a women’s group note as a
“[h]igh functioning female” who was well groomed and calm and appropriate during
Plaintiff presented to the VA with elevated blood pressure and symptoms such
as headache and blurred vision on December 14, 2000. Plaintiff was referred to
Dr. Miller and scheduled for an EKG. [R961-62]. On January 18, 2001, Plaintiff was
assessed with unstable hypertension, and she was told to eat a low cholesterol diet,
continue exercising, monitor blood pressure, and increase water intake. [R957].
Plaintiff reported to Dr. Saldivia on January 17, 2001, that she had lost $600 in
Las Vegas. The doctor found Plaintiff alert, oriented, with full range affect, over
inclusive associations, and fair insight. Plaintiff’s diagnosis was PTSD and dysthymia
A February 7, 2001, medical note indicated that Plaintiff had mildly elevated
hypertension and normal renal function. Plaintiff was instructed to continue with
exercise and a low salt diet. [R946].
During a February 16, 2001, group session Plaintiff had been threatened by
group members. She was appropriately upset and withdrawn following the incident.
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On May 17, 2001, Plaintiff reported to Dr. Saldivia that she was doing okay and
that she had discontinued group therapy due to difficulties with another group member
and her attempts to play doctor. Plaintiff was alert and oriented with full range affect,
euthymic mood, and organized associations. Dr. Saldivia determined that Plaintiff was
stable despite some relationship issues. She was to continue with Sertraline and
Plaintiff reported to McDonald that she was having problems with her new part
time job because she found dealing with the public stressful. Plaintiff was well
groomed with pleasant but anxious mood, cooperative behavior, and full affect.
Plaintiff had good eye contact, intact memory and concentration, and fair insight and
A medical note from July 19, 2001, indicated that Plaintiff complained of a
headache, a mild tremor in her hands, and feeling anxious. [R929]. Plaintiff was
assessed with anxiety, tremor, and hypertension, which resulted in her Lisinopril dosage
McDonald observed that Plaintiff had a depressed mood, anxious behavior, and
restricted affect on August 28, 2001. Her memory and concentration were intact, but
her insight and judgment were limited. [R925].
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An August 30, 2001, medical note indicated that Plaintiff was doing well. Her
panic attacks were easier to abort with Atenolol. She was also assessed with
Dr. Saldivia described Plaintiff as being alert and oriented, but having a
histrionic affect with frequent grimacing and limited eye contact. Dr. Saldivia
diagnosed Plaintiff with PTSD and increases in anxiety and irritability. Plaintiff was
advised to start taking Buspar again. [R915].
Plaintiff returned to Dr. Saldivia on January 10, 2002, and indicated that she had
stopped seeing McDonald but would restart to prevent an alcohol relapse. Dr. Saldivia
found Plaintiff oriented and alert with a full range affect, euthymic mood, and
organized associations with difficulties expressing herself. The doctor assessed
Plaintiff with dysthymia and PTSD, but noted that Plaintiff was not currently depressed
although she had increased anxiety. [R912].
On January 25, 2002, McDonald observed that Plaintiff was casually dressed
with calm mood and behavior and a bright affect. Plaintiff had clear, but tangential,
thoughts. Her memory and concentration were intact while her insight and judgment
were fair. [R910]. McDonald made similar observations on February 12. [R909].
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Plaintiff saw McDonald on April 3, 2002. Plaintiff had a frustrated mood and
a restricted affect, but she was cooperative. Plaintiff’s memory and concentration were
intact while her thoughts were clear and organized. [R906]. At the April 29, 2002,
women’s group, Plaintiff was fairly calm and participated in the group process, but she
also engaged in inappropriate laughter. [R902]. On May 1, McDonald observed that
Plaintiff had a sad mood, anxious behavior, and “labile affect.” Plaintiff’s memory and
concentration were intact, but her insight and judgment were limited. [R901].
A medical note from May 9, 2002, indicated that Plaintiff was present for a
follow up appointment for hypertension. She complained of fatigue and lack of
endurance. [R896]. Plaintiff was assessed with hypertension and abnormal weight gain
(30 pounds in the past year). [R897].
Dr. Saldivia saw Plaintiff on July 8, 2002, and found Plaintiff alert, oriented, and
with a full range affect. Plaintiff stated that she was not depressed that her daughter
moved out, but was hurt that her daughter did not often invite her over to her place.
The doctor assessed Plaintiff with a GAF of 50 and stable depression but fluctuations
in mood. Plaintiff was to continue with group therapy and her medications (Sertraline
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A note from the July 17, 2002, women’s group indicated that Plaintiff was
anxious with inappropriate laughter. [R885]. A July 23, 2002, note from the women’s
group indicated that Plaintiff was calm and jovial with good insight and judgment. The
note indicated that Plaintiff apologized to the group after becoming upset. [R884].
In an August 7, 2002, progress note, McDonald remarked that Plaintiff was
feeling stressed about friendships. Plaintiff was dressed in colorful African attire with
a disappointed mood. Her affect had a full range, but her thoughts were clear and
organized. Plaintiff’s memory and concentration were intact while her insight and
judgment were fair. The social worker assessed Plaintiff with having depression and
On September 23, 2002, Plaintiff was verbal, enthusiastic, and positive during
the Therapeutic Ceramic Clinic. [R875].
Dr. Saldivia evaluated Plaintiff on October 16, 2002, and found that Plaintiff had
stable depression, fluctuations in anxiety, and a GAF of 55. Plaintiff was alert, well
dressed, and cooperative during the visit. She had no memory difficulties and good
judgment and insight. Plaintiff was told to continue with Sertraline and Buspar for
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At the February 3, 2003, therapeutic ceramic group, Plaintiff was described as
being “very verbal with peers,” enjoying teasing and sarcasm to interact positively with
peers, and having a bright, cheerful affect. [R861]. On February 10, 2003, Plaintiff
was observed interacting with other female veterans. [R858]. She attended another
ceramic clinic around February 26, 2003, and demonstrated no behavior issues and had
Plaintiff met with Dr. Saldivia on May 7, 2003, and reported that she was doing
well, had completed the process of becoming the adoptive mother of her grandson, and
continued to isolate herself from friends. Plaintiff was alert with good eye contact, had
a euthymic mood, and slept okay with medication. Dr. Saldivia evaluated Plaintiff
with: dysthymic disorder under control, PTSD from childhood sexual abuse, and a GAF
A medical note from November 26, 2003, indicated that Plaintiff was doing fair,
was very sensitive to criticism, and was not sleeping well. Plaintiff was alert, was
oriented, and made good eye contact. Dr. Saldivia assessed Plaintiff was PTSD,
dysthymic disorder with mild depressive symptoms, and a GAF of 55. Plaintiff was
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 24 of 58
Plaintiff visited Dr. Saldivia on June 14, 2004, and reported doing “so-so”
because she had developed pain and swelling in her right hand, which a doctor
attributed to possibly being gout. As a result, Plaintiff had stopped her medications, but
she had started to take Sertraline after being told that she did not have gout. Plaintiff
was alert, oriented, and mildly despondent and anxious. Plaintiff was evaluated with
a GAF of 55, PTSD from sexual abuse as a child, and dysthymic disorder with
increased depressive and anxious symptoms due to inadequate medication. [R776,
Plaintiff saw Dr. Saldivia on October 4, 2005, and reported wanting to stop
taking her medications but ultimately decided that she would not. Plaintiff was alert,
oriented, anxious, and had impaired sleep. Plaintiff was given a GAF of 50 and
assessed with stable dysthymic disorder and PTSD due to sexual abuse. Plaintiff was
to continue with Sertraline and Buspar. [R664, 1315].
Plaintiff met with Dr. Saldivia on October 15, 2004, for an unscheduled visit
concerning a letter of support for her unemployability. Dr. Saldivia noted that
Plaintiff’s dysthymia was currently rated 30%, but he believed that it should be
increased due to her clinical symptoms, her level of functioning, and partial
improvement despite treatment. Dr. Saldivia agreed to write a letter of support to
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 25 of 58
increase the dysthymia rating but not to provide a letter of unemployability. [R739,
Dr. Saldivia then wrote a letter on October 22, 2004, noting that Plaintiff had
been receiving treatment since December 1998 for chronic depression, panic episodes,
and PTSD stemming from childhood sexual abuse. Dr. Saldivia stated that Plaintiff:
remains despondent and easily irritable when having to interact withpeople in any social context.
In my clinical opinion, [Plaintiff] remains impaired from her
dysthymic disorder on a social and work setting.
Plaintiff met with Dr. Saldivia on November 22, 2004, and was alert, euthymic,
and sleeping better. Plaintiff was assessed with PTSD, stable dysthymic disorder, and
a GAF of 55. Plaintiff was told to continue with Sertraline and Buspar. [R731].
A December 9, 2004, consultative evaluation indicated that Plaintiff was alert,
but had poor eye contact at the beginning of the evaluation. Plaintiff was assessed as
follows: (1) stable dysthymic disorder and PTSD on Axis I; (2) endometriosis and
hypertension on Axis III; and (3) a GAF of 55. [R728].
Dr. Saldivia evaluated Plaintiff on May 23, 2005, and noted that Plaintiff was in
a 10-week research program for sexual abuse victims. Plaintiff was alert, organized,
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 26 of 58
euthymic mood, but impaired sleep. Dr. Saldivia assessed Plaintiff with a GAF of 55,
stable dysthymic disorder, and PTSD from childhood sexual abuse. Dr. Saldivia
continued Plaintiff on Sertraline and Buspar, and he noted that he would not add a
medication for sleep because Plaintiff could nap during the day. [R689, 1331].
Plaintiff met with Dr. Saldivia on January 18, 2006, who assessed Plaintiff with
stable dysthymic disorder and PTSD from childhood sexual abuse. Plaintiff’s GAF was
55. She was told to continue with Sertraline and Buspar. Dr. Saldivia noted that
Plaintiff’s great aunt was living with her and had become ill. Plaintiff was observed
having difficulty concentrating, but she was alert, oriented, and had stable sleep and
Dr. Saldivia’s progress note from April 7, 2006, indicated that Plaintiff
complained of being more depressed and irritable and not sleeping through the night.
Plaintiff reported having difficulty caring for an elderly aunt who had been staying with
Plaintiff but who was moved because Plaintiff could not tolerate the situation. Plaintiff
was alert, tearful, and depressed. She was assessed with dysthymic disorder, currently
increased in symptoms because of family stressors and PTSD from childhood sexual
abuse. Plaintiff’s GAF was 45. Plaintiff was told to continue taking Sertraline, was
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 27 of 58
instructed to start taking Buspar, and was prescribed Trazodone (an anti-depressant).
Linda O’Neil, a non-examining psychologist, completed a Psychiatric Review
Technique on June 19, 2006. [R1050-62]. O’Neil concluded that there was insufficient
evidence to determine whether Plaintiff had a mental impairment. [R1050, 1062]. John
Cooper, another non-examining psychologist, affirmed O’Neil’s assessment on October
Dr. Saldivia saw Plaintiff on July 31, 2006, to discuss issues relating to
terminating her treating relationship with the doctor so that she could see a female
doctor. The doctor found Plaintiff alert and oriented with stable mood and affect and
organized associations. [R1281]. Plaintiff was assessed as follows: (1) PTSD and
dysthymic disorder on Axis I; (2) family issues on Axis IV; and (3) a GAF of 50.
Plaintiff was told to take Trazodone every night and to continue with Sertraline and
Dr. Saldivia completed a Mental Impairment Questionnaire on September 20,
2006, indicating that Plaintiff suffered from PTSD and dysthymia on Axis I; had
hypertension and hyperlipidemia on Axis III; and had a GAF of 50, which was her
highest GAF of the past year. [R1677]. Dr. Saldivia determined that Plaintiff had sleep
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 28 of 58
disturbance, mood disturbance, social withdrawal, emotional liability, anhedonia,
paranoia or inappropriate suspiciousness, feelings of guilt, difficulty thinking or
concentrating, and intrusive recollections of a traumatic experience. [R1677-78].
Dr. Saldivia determined that Plaintiff’s difficulties arose because of paranoia and an
inability to trust. He stated that Plaintiff was not a malingerer. [R1678]. Dr. Saldivia
stated that Plaintiff’s prognosis was unchanged in that she had not been able to sustain
gainful employment due to poor concentration and inability to interact with others.
[R1679]. Dr. Saldivia indicated that Plaintiff would miss work more than three times
Dr. Saldivia determined that Plaintiff had fair ability (seriously limited, but not
precluded) to: understand, remember, and carry out short instructions; maintain regular
attendance and be punctual; make simple, work-related instruction; ask simple
questions or seek assistance; get along with co-workers or peers; understand and
remember detailed instructions; set realistic goals; and use public transportation.
[R1680-81]. He determined that Plaintiff had good ability (limited but satisfactory) to:
be aware of normal hazards; adhere to basic standards of neatness or cleanliness; and
travel in unfamiliar places. [R1681]. Finally, Dr. Saldivia found that Plaintiff had poor
or no ability to: remember work-like procedures; maintain attention for two-hour
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 29 of 58
segments; sustain an ordinary routine without special supervision; work in coordination
with or proximity to others; complete a normal workday or workweek; perform at a
consistent pace; accept instructions and respond appropriately to criticism; respond to
changes in the work setting; deal with normal work stress; carry out detailed
instructions; deal with stress in semiskilled or skilled work; interact appropriately with
the general public; and maintain socially appropriate behavior. [R1680-81]. In making
these findings, Dr. Saldivia indicated that Plaintiff had poor concentration, persistent
distrust, and an inability to tolerate other people. [R1681]. Finally, Dr. Saldivia found
that Plaintiff had: slight limitations in daily living; marked difficulties in social
functioning; frequent deficiencies of concentration, persistence or pace; and repeated
episodes of deterioration or decompensation in work or work-like settings, causing the
Dr. Kristine Hsu met with Plaintiff on January 10, 2007, for a followup for PTSD
and depression. Plaintiff reported doing well overall on her psychological medications,
but that she had limited socialization because of anxiety. Dr. Hsu found Plaintiff to be
casually dressed with fair hygiene. Plaintiff shifted positions in her chair, but was
cooperative with frequent, appropriate smiling. Also, Plaintiff became distracted easily.
Dr. Hsu diagnosed Plaintiff as follows: (1) PTSD from sexual abuse and dysthymic
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 30 of 58
disorder on Axis I; (2) hyperlipidemia on Axis III; (3) family issues on Axis IV; and
(4) a GAF of 50. [R1212]. Dr. Hsu made similar observations about Plaintiff on June
6, 2007, [R1649-50], and August 21, 2007, [R1632-34]. Dr. Hsu also referred Plaintiff
to clinical psychologist, Monique Harris, at the August 2007 appointment. [R1634].11
Dr. Hsu completed a Mental Impairment Questionnaire on July 7, 2008, for
Plaintiff’s attorney. Dr. Hsu indicated that Plaintiff had: (1) PTSD and dysthymia on
Axis I; (2) hyperlipidemia on Axis III; (3) family issues on Axis IV; and (4) a current
GAF of 65, which was also the highest GAF score for the past year. [R1661]. Dr. Hsu
determined that Plaintiff had: (1) mood disturbances; (2) social withdrawal or isolation;
(3) intrusive recollections of a traumatic experience; (4) difficulty thinking or
concentrating; (5) generalized anxiety; (6) dissociation; and (7) anxious/depressed
mood with anxious affect. [R1661-62]. Dr. Hsu stated that Plaintiff was not a
malingerer, was showing good response to therapy, was active with treatment, was
utilizing coping techniques, and had kept her appointments. [R1662]. Dr. Hsu noted
that Plaintiff’s prognosis was “fair to good.” [R1663].
Dr. Hsu believed that Plaintiff would be absent more than three times per month
based on Plaintiff’s impairments and treatment. [R1663-64]. Dr. Hsu stated that
Plaintiff saw Harris in September 2007. [R1631-32].
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 31 of 58
Plaintiff would have good ability (i.e.
, limited but satisfactory ability) to understand and
remember short and simple instructions, ask simple questions or request assistance,
accept instruction and respond appropriately to criticism, and be aware of normal
hazards. Dr. Hsu determined that Plaintiff would have a fair ability (seriously limited
but not precluded) to: remember work-like procedures; carry out very short and simple
instructions; sustain an ordinary routine without special supervision; make simple
work-related decisions; perform at a consistent pace; get along with coworkers or peers;
respond appropriately to changes in a routine work setting; and deal with normal work
stress. Also, Dr. Hsu determined that Plaintiff would have poor or no ability to:
maintain attention for a two-hour segment; maintain regular attendance and be
punctual; work in proximity to others without being distracted; and complete a normal
workday or workweek without interruptions. [R1664]. Further, Dr. Hsu determined
that because Plaintiff decompensated easily, had a labile mood and affect, and had
significantly impaired concentration and attention, Plaintiff had poor ability to:
understand, carry out, and remember detailed instructions; set realistic goals or make
plans without others; and deal with stress of semiskilled or skilled work. Next, Dr. Hsu
concluded that Plaintiff had unlimited ability to adhere to basic standards of cleanliness,
had good ability to use public transportation, and had fair ability to interact with the
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 32 of 58
public, maintain socially appropriate behavior, and travel to unfamiliar places.
[R1665]. Finally, Dr. Hsu stated that Plaintiff had: (1) slight limitations in daily living
activities; (2) moderate limitations in social functioning; (3) frequent limitations in
concentration, persistence, or pace; and (4) continual episodes of deterioration or
decompensation in a work or work-like setting. [R1665-66].
ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact and conclusions of law:
The claimant last met the insured status requirements of the Act onDecember 31, 2002.
The claimant did not engage in substantial gainful activity (SGA)during the period from her alleged onset date of August 2, 1997,through her date last insured of December 31, 2002 (20 CFR404.1520(b), 404.1571 et seq.
Through the date last insured, the claimant had the following severeimpairments: depression and anxiety (20 CFR 404.1520(c)).
Through the date last insured the claimant did not have animpairment or combination of impairments that met or medicallyequaled the criteria of an impairment listed in 20 CFR Part 404,Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 33 of 58
From the alleged disability onset date, August 2, 1997, through thedate last insured, December 31, 2002, the claimant had the residualfunctional capacity to perform work at any exertional level thatdoes not require: more than simple, routine, repetitious tasks, withone- or two-step instructions; or strict production quotas, definedas the requirement to produce a specified number of units of workin a specified period of time; or more than the occasional contactwith coworkers or supervisors; or any contact with the public forthe period of time.
Through the date last insured, the claimant was unable to performpast relevant work (20 CFR 404.1565).
The claimant was born on August 23, 1952, and was over 50 yearsold, which is defined as an individual closely approachingadvanced age 50-54, on the date last insured (20 CFR 404.1563).
The claimant has at least a high-school education and is able tocommunicate in English (20 CFR 404.1564).
Transferability of job skills is not material to the determination ofdisability because using the medical-vocations rules as a frameworksupports a finding that the claimant is “not disabled,” whether ornot the claimant has transferable job skills (See SSR 82-41; 20 CFRPart 404, Subpart P, Appendix 2).
Through the date last insured, considering the claimant’s age,education, work experience, and residual functional capacity, therewere jobs that existed in significant numbers in the nationaleconomy that [t]he claimant could have performed (20 CFR404.1560(c), 404.1566).
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 34 of 58
The claimant was not under a disability as defined in the Act, at anytime from August 2, 1997, the alleged onset date, throughDecember 31, 2002, the date last insured (20 CFR 404.1520(g)).
The ALJ explained that Plaintiff had severe impairments of depression and
anxiety, but that these impairments did not reduce her exertional capacity. The ALJ
noted that Plaintiff had treatment and/or diagnoses for back pain, hypertension, and
diabetes, but that the medical records did not indicate that there were functional
limitations with these impairments. As for Plaintiff’s submitted list of impairments, the
ALJ concluded that the substance abuse and other mental diagnoses were either not
severe or were encompassed in the depression and anxiety findings. [R9].
The ALJ determined that Plaintiff’s impairments did not meet or equal
Listings 12.04 or 12.06 because she did not have marked limitations in two of four
categories listed in Part B. First, the ALJ stated that Plaintiff had only mild restrictions
in daily living activities in that Plaintiff exercised, took trips, took classes, and cared
for children. Second, the ALJ determined that Plaintiff had moderate difficulty in
social functioning based on Plaintiff’s inappropriate laughter and anxious behavior in
therapy sessions and Plaintiff’s stated discomfort dealing with the public. Third, the
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ALJ found that Plaintiff had moderate difficulty maintaining concentration, persistence,
or pace due to her depression, but that she still could do low-stress tasks. Finally, the
ALJ found that Plaintiff did not have repeated episodes of decompensation. [R10].
The ALJ also determined that Plaintiff did not satisfy the criteria of part C for
Listings 12.04 and 12.06 because there was no evidence of repeated instances of
decompensation and there was no evidence of a complete inability to function outside
The ALJ next determined that Plaintiff could perform the following tasks at any
exertional level: simple, routine tasks; work with relaxed production quotas; and work
with no contact with the public and occasional contact with coworkers or supervisors.
The ALJ noted that Plaintiff’s complaints of persistent panic attacks and crying spells
and prolonged isolation were undocumented. [R11]. As for Plaintiff’s complaints of
poor memory and interacting with the public, the ALJ noted that Plaintiff was able to
take extended trips and care for family. [R11-12]. The ALJ stated he was not giving
treatment records outside of the insured period weight because they did not relate back
to this period. As for Dr. Saldivia’s 2006 evaluation, the ALJ found that it was not
consistent with the medical records for the relevant period while the 2004 evaluation
was consistent with the RFC. The ALJ stated that he did not give Dr. Hsu’s opinion
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 36 of 58
significant weight because it did not reflect the insured period. As for Plaintiff’s
complaints stemming from hypertension and gout, the ALJ noted that the treatment
records did not reflect the problems reported by Plaintiff and that Plaintiff’s subjective
complaints four years after the fact were not credible. [R12]. The ALJ determined that
the testimony by Plaintiff’s friend insofar as it related to pre-December 2002 was
The ALJ explained that the VE testimony established that Plaintiff could do work
in the national economy despite her nonexterional limitations. [R13-14]. The ALJ
rejected the questioning by Plaintiff’s attorney concerning the ability to handle items
because there was no evidence of problems with handling. He also rejected the
attorney’s suggestion that Plaintiff could not attend or concentrate because the
treatment records did not support this as Plaintiff regularly received a GAF in the 50s.
In making the above findings, the ALJ did not refer to the disability findings of
STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if she is
unable to “engage in any substantial gainful activity by reason of any medically
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 37 of 58
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
12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment or impairments must result
from anatomical, psychological, or physiological abnormalities which are demonstrable
by medically accepted clinical or laboratory diagnostic techniques and must be of such
severity that the claimant is not only unable to do previous work but cannot,
considering age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy. 42 U.S.C.
The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
the existence of a “disability” and therefore entitlement to disability benefits.
20 C.F.R. § 404.1512(a). The Commissioner uses a five-step sequential process
to determine whether the claimant has met his burden of proving disability.
20 C.F.R. § 404.1520(a); Doughty v. Apfel
, 245 F.3d 1274, 1278 (11th Cir. 2001);
Jones v. Apfel
, 190 F.3d 1224, 1228 (11th Cir. 1999). The claimant must prove at step
one that he is not undertaking substantial gainful activity. See
20 C.F.R. § 404.1520(b).
At step two, the claimant must prove that he is suffering from a severe impairment or
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 38 of 58
combination of impairments which significantly limits his ability to perform basic
work-related activities. See
20 C.F.R. § 404.1520(c). At step three, if the impairment
meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of
Impairments), the claimant will be considered disabled without consideration of age,
education and work experience. See
20 C.F.R. § 404.1520(d). At step four, if the
claimant is unable to prove the existence of a listed impairment, he must prove that the
impairment prevents performance of past relevant work. See
20 C.F.R. § 404.1520(e).
At step five, the regulations direct the Commissioner to consider the claimant’s residual
functional capacity, age, education and past work experience to determine whether the
claimant can perform other work besides past relevant work. See
§ 404.1520(f). The Commissioner must produce evidence that there is other work
available in the national economy that the claimant has the capacity to perform. In
order to be considered disabled, the claimant must prove an inability to perform the
jobs that the Commissioner lists. Doughty
, 245 F.3d at 1278 n.2.
If at any step in the sequence a claimant can be found disabled or not disabled,
the sequential evaluation ceases and further inquiry ends. See
20 C.F.R. § 404.1520(a).
Despite the shifting of burdens at step five, the overall burden rests upon the claimant
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 39 of 58
to prove that he is unable to engage in any substantial gainful activity that exists in the
national economy. Boyd v. Heckler
, 704 F.2d 1207, 1209 (11th Cir. 1983).
SCOPE OF JUDICIAL REVIEW
The scope of judicial review of a denial of Social Security benefits by the
Commissioner is limited. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Fields v. Harris
, 498 F. Supp. 478, 488 (N.D. Ga. 1980).
This Court may not decide the facts anew, reweigh the evidence, or substitute its
judgment for that of the Commissioner. The findings of the Commissioner are
conclusive if they are supported by substantial evidence and the Commissioner applies
the correct legal standards. Lewis v. Callahan
, 125 F.3d 1436, 1439-40 (11th Cir.
1997); Barnes v. Sullivan
, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan
894 F.2d 1520, 1529 (11th Cir. 1990); Walker v. Bowen
, 826 F.2d 996, 999 (11th Cir.
1987); Hillsman v. Bowen
, 804 F.2d 1179, 1180 (11th Cir. 1986); Bloodsworth v.
, 703 F.2d 1233, 1239 (11th Cir. 1983). “Substantial evidence” means more
than a scintilla, but less than a preponderance. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion and it must be
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 40 of 58
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
, 402 U.S. 389 (1971); Hillsman
, 804 F.2d at 1180; Bloodsworth
, 703 F.2d
at 1239. “In determining whether substantial evidence exists, [the Court] must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen
, 792 F.2d 129, 131 (11th Cir. 1986).
In contrast, review of the ALJ’s application of legal principles is plenary. Foote v.
, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker
, 826 F.2d at 999.
CLAIMS OF ERROR
Plaintiff claims that the Commissioner’s final decision should be remanded
because of the following three errors: (1) the ALJ failed to consider the disability
finding by the Board of Veterans’ Appeals (“VA disability determination”); (2) the ALJ
did not comply with Social Security Ruling 83-20 to determine the onset date of
Plaintiff’s disability; and (3) the ALJ’s RFC determination was not supported by
substantial evidence. [See
Doc. 15].12 Because the Court concludes that the ALJ erred
The Commissioner’s brief suggests that Plaintiff raised a fourth claim of
error because the brief responds to a suggestion in the facts section of Plaintiff’s briefindicating that Plaintiff might meet Listing 12.04. [See
Doc. 16 at 19-20]. The Courtdoes not address this issue because: (1) it was not listed as an issue in Plaintiff’s brief;and (2) Plaintiff did not raise it at oral arguments. [See
Doc. 11 at 2, 3 (requiring astatement of issues for review presented in separate numbered paragraphs and stating:“The issues before the Court are limited to the issues properly
raised in the briefs. Any
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 41 of 58
in ignoring the VA disability determinations, the Court discusses this issue in detail and
only briefly addresses the other two issues.
Veterans Administration Disability Determinations
Plaintiff argues that the ALJ erred by failing to discuss, consider, or mention the
disability determinations by the Veterans Administration because this disability finding
must be given great weight by the ALJ. [Doc. 15 at 14-16]. Plaintiff asserts that the
VA disability determinations are highly relevant because: (1) the VA and Social
Security definitions of disability are similar; (2) the VA continued to increase
Plaintiff’s disability rating between 1990 and 1997; and (3) the VA determinations were
well informed in that they were made closer to Plaintiff’s insured period and based on
Plaintiff’s complete medical records with the VA. [Id.
The Commissioner responds by first noting that the disability standard for VA
disability claims is not similar to the Social Security disability standard because the
VA’s standard is less strict. [Doc. 16 at 5 (citing Pearson v. Astrue
, 271 Fed. Appx.
979 (11th Cir. 2008)]. The Commissioner next argues that the ALJ implicitly
considered and rejected the VA disability determination because the ALJ relied on the
issue raised in the briefs but not argued at oral hearing, if one is held, will be deemedabandoned.”)].
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 42 of 58
same evidence as the VA and discussed the VA finding at the hearing. [Id.
(relying on Kemp v. Astrue
, 308 Fed. Appx. 423 (11th Cir. Jan. 26, 2009))]. The
Commissioner also contends that the VA decision from May 2007 was not relevant to
Plaintiff’s disability application because it was made four years after Plaintiff’s last
insured date and was based on evidence following the last insured date. [Id.
Plaintiff responds that the case should be remanded because the ALJ’s lack of
consideration for the VA decision demonstrates that he did not give it great weight.
[Doc. 24 at 2]. Plaintiff also argues that the Plaintiff’s 100% unemployability rating
was retroactive to July 2002, which was during the period when Plaintiff was insured.
at 3]. Plaintiff contends that the Commissioner is not correct in arguing that the
VA determination was based on records after 2002 because the VA considered records
from 1998. [Id.
at 3-4]. Plaintiff asserts that the ALJ’s reference to the VA
determination at the hearing did not demonstrate that he gave it great weight because
he demonstrated indifference to the VA. [Id.
at 5]. Plaintiff argues that the ALJ’s
citation to treatment records is not equivalent to giving great weight to the VA
disability determination, so the Court should reject the Commissioner’s position that
consideration of such records renders any error harmless. [Id.
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 43 of 58
A VA rating is not binding on the Commissioner. See
20 C.F.R. § 404.1504 (“A
decision by . . . any [ ] governmental agency about whether you are disabled . . . is not
binding on [the Commissioner].”). Although not binding, the Eleventh Circuit requires
that the VA determination “be considered and [ ] entitled to great weight.” Rodriguez
, 640 F.2d 682, 686 (5th Cir. Mar. 25, 1981)13 (citing Epps v. Harris
624 F.2d 1267, 1274 (5th Cir. 1980) and DePaepe v. Richardson
, 464 F.2d 92, 94
(5th Cir. 1972)). Additionally, “[t]he ALJ must state specifically the weight accorded
each item of evidence and the reasons for his decision.” Gibson v. Heckler
, 779 F.2d
619, 623 (11th Cir. 1986). At the same time, an ALJ decision will not be in error if the
context of the decision indicates that the ALJ implicitly made a finding about the VA
disability rating. See Kemp v. Astrue
, 308 Fed. Appx. 423, 426 (11th Cir. 2009)
(concluding that ALJ’s reference to VA rating and reliance on VA records indicated
that he implicitly determined that the VA ratings were entitled to great weight) (citing
Hutchison v. Bowen
, 787 F.2d 1461, 1463 (11th Cir. 1986)).
Further, the ALJ is not required to refer to every piece of evidence in the record.
Dyer v. Barnhart
, 395 F.3d 1206, 1211 (11th Cir. 2005); Hutchison
, 787 F.2d at 1463
In Bonner v. City of Prichard
, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
), the Eleventh Circuit adopted as binding precedent all of the decisions of theformer Fifth Circuit rendered prior to the close of business on September 30, 1981.
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 44 of 58
(stating that the ALJ need not “mechanically recite the evidence leading to her
determination”). However, a court cannot affirm the Commissioner’s final decision if
“it is impossible for a reviewing court to determine whether the ultimate decision on
the merits of the claim is rational and supported by substantial evidence.” Luckey v.
, 331 Fed. Appx. 634, 639 (11th Cir. 2009) (quoting Cowart v. Schweiker
662 F.2d 731, 735 (11th Cir. 1981)); Dyer
, 395 F.3d at 1211 (quoting Foote
, 67 F.3d at
1561) (“[T]he ALJ’s decision [cannot be] . . . a broad rejection which is ‘not enough
to enable [the reviewing courts] to conclude that [the ALJ] considered [the claimant’s]
medical condition as a whole.’ ”). Similarly, a court “may not supply a reasoned basis
for [an] agency’s action that the agency itself has not given.” Dixon v. Astrue
312 Fed. Appx 226, 229 (11th Cir. 2009) (quoting Zahnd v. Sec’y Dep’t of Agr.
The Court concludes that the ALJ erred by failing to consider the VA disability
determinations. As the case law above demonstrates, the ALJ should have considered
the VA disability determinations and given these determinations great weight (or
presumably explained why they were not entitled to great weight). Although the ALJ’s
decision is otherwise well reasoned, the ALJ’s opinion does not mention or
acknowledge the VA disability findings, and it does not otherwise explain the weight
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 45 of 58
given to these determinations. This was error. See Speagle v. Astrue
, No. 3:08-cv-
1046, 2010 WL 750341, *5 (M.D. Fla. Mar. 4, 2010) (remanding where “the ALJ made
no reference to the VA’s disability rating [because] it [was] impossible to determine
whether the ALJ simply overlooked the VA’s disability rating, or whether the VA’s
disability rating was given the appropriate weight”); Smith v. Astrue
, No. 3:08-cv-406,
2009 WL 3157639, *7 (M.D. Fla. Sept. 25, 2009) (finding that ALJ’s conclusory
reference to VA disability determination without discussion of weight given warranted
remand for the ALJ to apply the correct legal standard); SSR 06-03p (noting that the
ALJ “should explain the consideration given to [other governmental agency]
decisions”); cf. Higgins v. Astrue
, No. 1:07-cv-1073, 2009 WL 499465, *4 (M.D. Ala.
Feb. 27, 2009) (finding no error where ALJ’s decision mentioned VA decision several
times, the ALJ stated he gave full consideration of the decision, and the ALJ stated that
the VA decision was not binding given the different standards and rules).
As for the Commissioner’s arguments to the contrary, the Court rejects them for
the reasons that follow. First, the Commissioner’s argument that the VA disability
standard is less stringent that the Social Security disability standard is unpersuasive in
this case. This rationale may be a valid basis for rejecting the VA disability
determination. See Pearson v. Astrue
, 271 Fed. Appx. 979, 981 (11th Cir. 2008) (“The
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 46 of 58
record establishes that the [ALJ] considered the rating in his decision and correctly
explained that a claimant had to satisfy a more stringent standard to be found disabled
under the [Act].”); SSR 06-03p (“[B]ecause other agencies may apply different rules
and standards than [the Commissioner does] for determining whether an individual is
disabled, this may limit the relevance of a determination of disability made by another
agency.”). But see Hogard v. Sullivan
, 733 F. Supp. 1465, 1468 (M.D. Fla. 1990)
(finding it an insufficient justification for not according great weight to a disability
determination where ALJ’s only basis for rejecting the VA rating “was that the two
agencies used different criteria to evaluate disability claims”). However, the ALJ never
discussed the VA rating, so the Court cannot determine whether the ALJ rejected the
VA disability rating because of it being based on different standards. To find otherwise
would be to allow the Commissioner to make a post hoc justification for the ALJ’s
decision, which is not permitted. See Burlington Truck Lines, Inc. v. United States
371 U.S. 156, 168-69 (1962) (“The courts may not accept appellate counsel’s post hoc
rationalizations for agency action; [SEC v.
, 318 U.S. 63, 87-88
(1943),] requires that an agency’s discretionary order be upheld, if at all, on the same
basis articulated in the order by the agency itself . . . .”); Owens v. Heckler
, 748 F.2d
1511, 1516 (11th Cir. 1984) (declining “to affirm simply because some rationale might
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 47 of 58
have supported the ALJ’s conclusion [because s]uch an approach would not advance
the ends of reasoned decision making”).
Second, that the VA disability determinations were made in 2007 is not a basis
to reject them. As Plaintiff notes, the disability rating decision for Plaintiff’s
depression stems from her March 2001 claim seeking an increase in her depression
disability rating and from her July 2002 claim seeking total disability. [See
(noting that Plaintiff “submitted her claims for increased evaluations in March 2001”
and “submitted her claims for [total disability evaluation based on individual
unemployability] in July 2002”)]. The VA disability legal regime indicates that
Plaintiff was entitled to an award from the period when she filed her claims for
38 C.F.R. § 3.151(b) (“Where disability pension entitlement is
established . . ., the pension award may not be effective prior to
the date of receipt of
the pension claim . . . .”); 38 C.F.R. § 3.400 (stating that “the effective date of an
evaluation and award of pension . . . based on an original claim . . . will be the date of
receipt of the claim or the date entitlement arose, whichever is later”); see also
38 U.S.C. § 5110(a) (“[T]he effective date of an award based on an original claim . . .
or a claim for increase . . . shall not be earlier than the date of receipt of application
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 48 of 58
therefor.”).14 Thus, the 2007 VA disability determination appears to relate back to the
period when Plaintiff filed her claims in March 2001 and July 2002. In other words,
the 2007 ratings increase to 50% for Plaintiff’s depression is relevant for the period
after March 2001 when Plaintiff sought to increase her depression disability rating, and
the 2007 total disability determination is relevant for the period after July 2002 when
Plaintiff filed her total disability claim. Thus, the Court concludes that the 2007 VA
disability decision is relevant for a portion of the period when Plaintiff was insured.
As such, that the VA ultimately ruled in Plaintiff’s favor in 2007 does not excuse the
ALJ for ignoring the VA decision because it appears to have related back to Plaintiff’s
original VA disability claims from March 2001 and July 2002.15
Although the law relating to VA disability claims indicates that a disability
determination can be fixed after the date a claim is filed, there is no indication that theVA determined that the rating increase to 50% for Plaintiff’s depression and the totaldisability determination arose at a time after Plaintiff filed her claims.
Additionally, the ALJ’s decision does not discuss the VA’s 30% disability
rating for Plaintiff’s depression, which was Plaintiff’s rating at the time she filed herMarch 2001 claim. [R366]. This rating continued into Plaintiff’s insured period, butthe ALJ never examined this rating. The Commissioner’s brief has not accounted forthis failure, and the Eleventh Circuit case law requires that the rating be considered.
The Commissioner raised an interesting argument at oral argument, namely thatalthough it may have been error to ignore this 30% rating, this error was harmlessbecause Plaintiff was capable of working between 1991 and 1997 despite having the30% disability rating, thereby undermining any argument that such a rating required adisability finding. If the ALJ’s failure to consider the 30% rating had been the ALJ’s
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 49 of 58
Finally, the Commissioner’s reliance on the Eleventh Circuit’s Kemp
is not persuasive because Kemp
is clearly distinguishable. The ALJ in Kemp
“continuously” referred to the “VA’s evaluations and disability rating throughout the
evaluation process,” and the ALJ explained why a 30% disability rating for PTSD did
not qualify as a severe impairment for Social Security purposes. Kemp
308 Fed. Appx. at 427. Here, the ALJ’s decision omitted any reference to the VA
determinations, so the extensive consideration of the VA disability determinations in
is not present in this case. Thus, the Court concludes that the ALJ did not
implicitly consider or give the VA disability determinations great weight.16
only error relating to the VA disability findings, the Court may have agreed with thisargument. However, given the complete absence of consideration of the 50% disabilityrating after March 2001 and the total disability determination after July 2002, the Courtfinds that it is better for the Commissioner to consider all VA disability determinationson remand.
That the ALJ and Plaintiff’s attorney mentioned the VA disability
decisions at the evidentiary hearing does not alter the Court’s conclusion. At thehearing, Plaintiff’s counsel merely summarized the VA findings. The ALJ made noattempt to explain why he rejected the VA findings at the hearing. If anything, the ALJquestioned the relevance of the VA disability decision. [See
R37]. The exchange at thehearing therefore does not persuade the Court that the ALJ gave due consideration tothe VA disability ratings. Given this lack of discussion, the Court concludes that theALJ erred in failing to consider the VA disability determination.
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 50 of 58
Although the circumstances of Kemp
are distinguishable, the Court is aware that
the Commissioner’s argument - - the ALJ’s analysis of and reliance on the VA
treatment records show that the ALJ implicitly gave the ratings great weight, [see
Doc. 16 at 6] - - is supported by at least one district court in the Eleventh Circuit. In
Wiley v. Astrue
, the district court noted that the ALJ’s decision “did not specifically
mention, or state the weight given, to the VA disability rating.” Wiley
, No. 07-cv-663,
2009 WL 734134, *1 (S.D. Ala. Mar. 16, 2009). Despite this omission, the Wiley
determined that the ALJ implicitly considered the VA disability rating because the ALJ
in making the disability determination examined, discussed, and relied on “the evidence
underlying the VA rating” and agreed with the VA doctor who determined that the
plaintiff could perform sedentary work. Id.
This Court will not follow Wiley
(and the Commissioner’s rationale) for three
reasons. First, the Court does not agree that the mere discussion of the VA medical
records underlying the VA disability determinations is the same as implicit
consideration of the VA disability determinations where there is no indication that the
ALJ’s decision ever considered the VA determination. Without any reference to the
VA disability determinations in the ALJ’s decision, the Court finds that it is impossible
to conclude that the ALJ implicitly considered the VA disability decision and ratings
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 51 of 58
(or gave them great weight). This omission more likely suggests that the ALJ
overlooked the disability decisions when drafting his decision. This is especially true
in this case where the administrative record consists of nearly 1,700 pages of
Second, the absence of any discussion of the VA disability determinations is akin
to a broad rejection of these VA findings. Under Eleventh Circuit law, the ALJ errs
when he broadly rejects evidence because the Court cannot perform any sort of
meaningful review. See Dyer
, 395 F.3d at 1211. As such, the Court does not find it
appropriate to accept the Commissioner’s argument that the mere consideration of VA
treatment records is akin to a consideration of and giving great weight to the VA
Third, the Court concludes that to excuse the ALJ’s complete failure to consider
the VA disability determinations would essentially constitute the Court supplying a
rationale for the Commissioner’s decision. It is the ALJ’s job to explain why he treated
the VA disability determinations in the manner that he did. The Court must only decide
whether such a conclusion is supported by substantial evidence. Thus, the Court would
abandon its role in Social Security cases by both determining that the VA implicitly
considered the VA disability determinations and that such implicit consideration was
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 52 of 58
supported by substantial evidence. The Court refuses to act in this manner no matter
how well reasoned the ALJ’s decision may otherwise be.
Accordingly, the Court REVERSES
the final decision of the Commissioner and
Plaintiff’s case to the Commissioner for consideration of the VA disability
determinations. Given this conclusion, the Court only briefly addresses Plaintiff’s two
Plaintiff argues that the ALJ erred by failing to consult a medical advisor to
determine the onset date of Plaintiff’s disability as outlined in Social Security
Ruling 83-20. [Doc. 15 at 18-21]. Plaintiff notes that the VA made a total disability
determination beginning on July 2002 and appears to argue that Plaintiff’s condition
had not appreciably changed from 2001. As a result, Plaintiff asserts that the ALJ
should have consulted a doctor to determine the onset date for Plaintiff’s disability.
The Commissioner argues that SSR 83-20 is not relevant to this case because
there was no finding of disability, rendering it unnecessary to find an onset date.
[Doc. 16 at 9-10]. Plaintiff argues that the Commissioner’s reading of SSR 83-20
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 53 of 58
should be rejected and that the ALJ should have consulted a medical advisor for
assistance in determining an onset date. [Doc. 24 at 9-16].
Although this case must be remanded for the ALJ to consider the VA disability
finds, the Court outlines the relevant law for the parties concerning whether the ALJ
must call a medical advisor to determine the onset date because the issue may arise on
remand. Social Security Ruling 83-20 provides that “the established onset date must
be fixed based on the facts and can never be inconsistent with the medical record
evidence.” SSR 83-20. A medical advisor is sometimes required to assist the ALJ in
finding the onset date for the disability. See id.
Specifically, the Rule states that
[d]etermining the proper onset date is particularly difficult, when, forexample, the alleged onset and the date last worked are far in the past andadequate medical records are not available. In such cases, it will benecessary to infer the onset date from the medical and other evidence thatdescribe the history and symptomatology of the disease process.
When the date of onset must be inferred, the ALJ “should call on the services of a
The Eleventh Circuit has never addressed in a published decision when a medical
advisor is necessary under SSR 83-20, but other circuit courts have examined the issue.
See McManus v. Barnhart
, No. 5:04-CV-67, 2004 WL 3316303, *6 n.45 (M.D. Fla.
Dec.14, 2004). The McManus
decision from the Middle District of Florida has
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 54 of 58
identified two competing interpretations of SSR 83-20 by the other circuit courts. The
“restrictive interpretation” by the Sixth and Seventh Circuits views SSR-83-20 as
having “no application to cases in which the ALJ does not find the claimant to be
disabled” on the grounds that “in the absence of a finding of disability there is no
reason to determine the date of onset.” Id.
at *6 & n.46 (citing Scheck v. Barnhart
357 F.3d 697, 701 (7th Cir. 2004), and Key v. Callahan
, 109 F.3d 270, 274 (6th Cir.
1997)). The “less restrictive interpretation” by other circuits indicates that SSR 83-20
applies “in cases where [(1)] the claimant’s impairment is slowly progressive,” (2) “the
ALJ is required to make a retroactive inference of disability prior to the date last
insured,” and (3) “the medical evidence during that time period is ambiguous or
at *6 & n.47.17
Since it is unclear what will transpire on remand, the Court does not resolve
which interpretation of SSR 83-20 should prevail or whether a medical advisor will be
necessary in Plaintiff’s case. The Court notes, however, that if the Commissioner
The undersigned notes that an unpublished decision from the Eleventh
Circuit appears to follow this less restrictive interpretation. See March v. Massanari
,No. 00-16577, 265 F.3d 1065 (Table), slip op. at 5 (11th Cir. July 10, 2001) (rejectingthe Commissioner’s argument that SSR 83-20 did not require a medical advisor becauseplaintiff failed to prove disability prior to the date last insured because there was“strong evidence that [plaintiff] became disabled at some time,” rendering adetermination of the onset date “critical” and a medical advisor opinion necessary).
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 55 of 58
determines that Plaintiff is not disabled, then SSR 83-20 will not apply under the
restrictive interpretation. However, the SSR 83-20 medical advisor requirement may
apply under the less restrictive interpretation if there is strong evidence that Plaintiff
is disabled and the evidence of onset is ambiguous or inadequate.18 The Court leaves
these issues for the parties to resolve if necessary on remand.
Plaintiff argues that the ALJ’s RFC disregards limitations and restrictions
supported by the treating medical professionals, but Plaintiff has not explicitly
identified the omitted restrictions. Instead, she refers to the statement of facts portion
of her brief. [Doc. 15 at 23]. Plaintiff then asserts that the ALJ did not have good
cause in rejecting the limitations identified by the treating medical professionals, so
they should have been incorporated into the RFC. [Id.
The Commissioner argues that the ALJ did not err in formulating the RFC.
[Doc. 16 at 10-23]. First, the Commissioner asserts that the ALJ was not required to
incorporate the doctor’s limitations into the RFC if other evidence does not so require.
at 11]. Second, the Commissioner contends that the ALJ had good cause for
As the lengthy summary of Plaintiff’s medical records demonstrates, the
medical records for Plaintiff are neither inadequate nor ambiguous after July 23, 1998,but there is little if any evidence concerning Plaintiff’s conditions prior to this date.
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 56 of 58
disregarding the opinions of Drs. Saldivia and Hsu. As for Dr. Saldivia, the
Commissioner asserts that the opinions from 2004 and 2006 do not relate back to the
insured period that ended on December 31, 2002, and that these opinions are contrary
to the evidence for the relevant period, which showed little evidence of paranoia, made
little reference to an inability to concentrate, suggested that Plaintiff functioned well
in her daily living, and indicated that Plaintiff could tolerate people and deal with stress.
at 12-18]. The Commissioner finally notes that the ALJ incorporated limitations
outlined in Dr. Saldivia’s October 2004 letter into the RFC. [Id.
at 21]. As for Dr. Hsu,
the Commissioner argues that Dr. Hsu’s July 2008 opinion does not and cannot relate
back to the relevant period because Dr. Hsu only began treating Plaintiff in April 2007.
at 21]. Also, the Commissioner argues that the ALJ properly discounted the
limitations because they were inconsistent with Dr. Hsu’s finding that Plaintiff had a
GAF score of 65 and the consistent GAF scores between 50 and 60 assigned to
at 23-24]. Plaintiff argues that the ALJ improperly substituted his own
opinion for that of the treating doctor’s in formulating the RFC. [Doc. 24 at 17-18].
The Court does not resolve whether the ALJ’s RFC determination was proper in
this case because the case must be remanded for the ALJ to consider the VA disability
determinations. However, the Court addresses Plaintiff’s misguided argument that it
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 57 of 58
was improper for the ALJ to reject the 2007 opinion by Dr. Hsu and the 2006 opinion
by Dr. Saldivia. The ALJ’s main (but not only) basis for rejecting Dr. Saldivia’s 2006
opinion and Dr. Hsu’s July 2008 opinion was that they did not relate back to the
relevant period. [See
R12]. This is an acceptable ground for rejecting these opinions
because courts have concluded that the ALJ may give little weight to an opinion, even
from a treating source, when it does not relate back to the relevant period.
Homrighouse v. Astrue
, No. 5:08-cv-374, 2009 WL 3053705, *9 (M.D. Fla. Sept. 18,
2009) (finding evidence supported giving opinion little weight where, inter alia
, it did
not state that it was intended to relate back); Lofgren v. Astrue
, No. 1:06-cv-143,
2008 WL 1323396, *1 (N.D. Fla. Apr. 4, 2008) (“While a retrospective opinion can
prove the existence of a disability, the retrospective opinion must refer clearly
relevant disability period, and not simply express and opinion to the claimant’s current
status.”) (emphasis in original).19 As such, the Court finds that Plaintiff’s argument
Where a retrospective opinion does relate back to the relevant time period,
it is evidence that should be considered by the ALJ. See Boyd v. Heckler
, 704 F.2d1207, 1211 (11th Cir. 1983) (joining Second and Seventh Circuits “that a treatingphysician’s opinion is still entitled to significant weight notwithstanding that he did nottreat the claimant until after the relevant determination date”); see also Newell v.
Comm’r of Soc. Sec.
, 347 F.3d 541, 547 (3d Cir. 2003) Wilkins v. Sec’y, Dep’t ofHealth and Human Servs.
, 953 F.2d 93, 96 (4th Cir. 1991) (en banc
) (“This court hasrecognized that a treating physician may properly offer a retrospective opinion on thepast extent of an impairment.”). The opinions by Dr. Hsu and Dr. Saldivia do not
Case 1:09-cv-01761-AJB Document 27 Filed 05/17/10 Page 58 of 58
about the ALJ’s treatment of these medical opinions is unpersuasive. Although the
evidence supports the ALJ’s decision not to give weight to the 2006 and 2008 opinions,
the ALJ must still reconsider the RFC after reviewing and evaluating the VA disability
For the reasons discussed above, the Court REVERSES
the final decision of the
Commissioner and REMANDS
Plaintiff’s case to the Commissioner. The Clerk is
to enter judgment in Plaintiff’s favor.
IT IS SO ORDERED AND DIRECTED
, this the 17th day of May, 2010.
ALAN J. BAVERMAN
UNITED STATES MAGISTRATE JUDGE
explicitly indicate that they relate back to the relevant period. Instead, both opinionssuggest that they were relevant to the period when they were completed because bothopinions make reference to Plaintiff’s GAF from the past year in which the evaluationswere completed. [See
R1661 (Hsu), 1677 (Saldivia)]. As such, they are notretrospective opinions and not entitled to weight.
Wr BMR or Basal Metabolic Rate is described as "the number of calories your body needs to operate. This doesn't account for any activity, it's simply the energy needed to sustain a heartbeat, breathing and normal body temperature. It measures the body at rest, not sleep, at room temperature". (1) Your BMR can be very useful in your fitness plan. There are certain individuals that eat anyth
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