Lori Lacina v. Commissioner, Social Security Administration ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11051
________________________
D.C. Docket No. 8:12-cv-02271-VMC-TBM
LORI LACINA,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 1, 2015)
Before WILSON and ANDERSON, Circuit Judges, and VOORHEES,* District
Judge.
___________
*Honorable Richard L. Voorhees, United States District Judge for the Western District of North
Carolina, sitting by designation.
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PER CURIAM:
Lori Lacina appeals the district court’s judgment affirming the Social
Security Commissioner’s (“Commissioner”) denial of her application for disability
insurance benefits and supplemental security income. Lacina contends that the
Administrative Law Judge (“ALJ”) erred by improperly weighing relevant medical
opinions, resulting in an incorrect residual functional capacity (“RFC”), and erred
in posing an incomplete hypothetical question to the vocational expert at the
administrative hearing.
I.
Lacina applied for disability insurance benefits and supplemental security
income in February 2008, claiming that she had been disabled since February 13,
2007, because of hip and leg pain, anxiety, depression, and agoraphobia. Her
applications were denied originally and on reconsideration, at which point she
requested and received a hearing before an ALJ.
At the time of her hearing in April 2010, Lacina was thirty-nine years old
with an eleventh grade education and past work experience as a waitress, hostess,
prep cook, cashier, assistant manager, and spa busser. Lacina testified that she has
not worked since the beginning of 2007 due to pain and other difficulties arising
from surgery on her right hip in 1997 (necessitated by a motor vehicle accident)
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and a tibia fracture in 2001 (caused by “just walking”). Lacina also testified that
she had been diagnosed with bipolar disorder, suffered from anxiety and
depression, and had attempted suicide. She stated that she had difficulty
concentrating “all the time” and problems with her memory “most of the time.” It
made her “extremely uncomfortable” to be around people because she felt like they
were staring at her and she heard voices. Driving was difficult because she
suffered from panic attacks.
When questioned about her physical capabilities, Lacina stated that she
could lift twenty pounds, but would have difficulty lifting a gallon of milk on a
repetitive basis because of pain in her hand and elbow joints. She also stated that
she could stand for thirty minutes, at least fifteen minutes comfortably; walk
comfortably for about twelve minutes; and sit for about ten to fifteen minutes
before pain in her hip and lower back caused significant discomfort.
The record also contained information about Lacina’s daily activities. At all
relevant times, Lacina lived with her husband and young son. In February 2008,
Lacina testified in writing that she attended school (outside of the home) for four
hours per weekday. After catching two buses home, she would rest, complete
homework, clean, cook, bathe her son, watch television, and read. At the
administrative hearing, Lacina again stated that she fixed meals (with help from
her husband) and did household chores, though she had to sit down and take a
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break every twelve to fifteen minutes. She would also lie down several times over
the course of the day for a total of an hour and a half to two hours.
Following Lacina’s testimony, the ALJ posed the following hypothetical to
Vocational Expert (“VE”) William Harvey:
Twenty pound occasional lift, ten pounds repeatedly, a sit/stand
option at will, so she can sit or stand if she needs to, can occasionally
stoop, no kneeling, no squatting, no crawling. Can occasionally climb
stairs but no ropes, ladders or scaffolds. And is limited to doing
simple work which I defined as limited to four-step work and should
be – only have occasional contact with the public.
The VE stated that a person with those limitations could not do any of Lacina’s
past work, but could perform the jobs of a small products assembler, produce
inspector, or merchandise marker. The ALJ then asked if there would be any job
for a person with those limitations who also has to lie down one and a half to two
hours “whenever she needs to,” and the VE answered “no.” 1
Also before the ALJ were Lacina’s medical records. Because those records
– particularly the psychological records – are central to the issues raised on appeal,
we describe them here in some detail.
On January 8, 2008, Lacina was voluntarily admitted to Personal
Enrichment through Mental Health Services (“PEMHS”) due to severe anxiety and
1
On questioning by Lacina’s counsel, the VE further testified that the jobs he identified
would not be available if the individual was absent from work two times a month or if the
individual could not do one- through four-step work.
4
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a suicide attempt. Dr. Hector Corzo, Lacina’s examining physician, reported that
Lacina was “alert and lucid,” “cooperative,” and with “average intellect” and “fair”
insight and judgment. Lacina admitted to Dr. Corzo that she had been hearing
voices most of her life, something that she considered normal because she believed
she was clairvoyant. Dr. Corzo’s diagnostic impressions were borderline
personality disorder, history of generalized anxiety disorder with agoraphobia, and
panic attacks. He assigned her a Global Assessment of Functioning (“GAF”) score
of 35.2 After two days of stabilization, Lacina was discharged from PEMHS; on
her discharge summary, Dr. Corzo reported a GAF score of 40.
PEMHS referred Lacina to Suncoast Center for Community Mental Health
(“Suncoast”) for outpatient treatment. Lacina was evaluated by multiple mental
health professionals at Suncoast. On her January 25, 2008, appointment, she was
given a GAF score of 56. One of the Suncoast professionals, Nurse Practitioner
Rebecca Shytle, saw Lacina on five separate occasions. The first time, in May
2008, Shytle reported that Lacina was taking a combination of Vistaril, BuSpar,
2
GAF is a standard measurement of an individual’s overall functioning level “with respect
only to psychological, social and occupational functioning.” American Psychiatric Association
Diagnostic and Statistical Manual of Mental Disorders, at 32 (4th ed. 1994) (DSM-IV). A GAF
of 31-40 indicates some impairment in reality testing or communication or major impairment in
several areas, such as work or school, familiar relations, judgment, thinking, or mood. Id. A
score between 41 and 50 indicates serious symptoms, such as suicidal ideation, serious
impairment in social, occupational or school functioning. Id. A score between 51 and 60
indicates moderate symptoms, such as occasional panic attacks or moderate difficulty in social,
occupational or school functioning. Id.
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and Lexapro; her depression was improved but she continued to have mood swings
and cried a lot; she had problems sleeping at night and therefore took naps in the
afternoon; she was “alert and oriented to person, place, time and situation”; “[h]er
speech [was] clear and coherent”; and her “[t]hought processes [were] relatively
logical and goal-directed.” Shytle assigned a GAF score of 48. In early June
2008, Shytle noted similar findings along with an “animated affect” and Lacina’s
self-report of one dissociative episode. 3 Shytle assigned a GAF score of 50. The
last three times Shytle examined Lacina (September 2008, February 2009, and
April 2009), her findings were similar and she assigned GAF scores of 53, 51 and
50. On August 5, 2009, Lacina was discharged from Suncoast because of her
failure to show up for multiple appointments. Lacina’s closing diagnosis was
“bipolar disorder” with presentations of hallucinations, mood swings, and anxiety.
On December 3, 2008, based on a referral from the Department of Disability
Services (“DDS”), Lacina saw Dr. Elizabeth Jamieson for an internal medicine
examination. Dr. Jamieson reported that Lacina (who at the time complained of
pain in both legs and her mid-to-lower back) could not walk on her toes or squat
more than fifty percent, but had a normal gait and stance, normal range of motion
in all joints except for her lumbar spine and hips, and no sensory or motor deficits
3
Specifically, Lacina reported an incident when, according to friends and family, she went
into a rage. Lacina could not remember the incident.
6
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or muscle atrophy. Dr. Jamieson opined that Lacina had moderate to marked
limitations in standing, walking, bending, and squatting, but no limitations in
sitting or the use of upper extremities. Although the purpose of the appointment
was to assess Lacina’s physical pain, Dr. Jamieson also noted:
[Lacina] is a well developed, well nourished, sad-looking female who
appears to be somewhat depressed . . . [Lacina] is conscious and alert,
but does not have a lot of eye contact with the examiner. She is
certainly oriented in all spheres. She shows absolutely no evidence of
hallucinations or delusions or impaired judgment. Her memory
appears to be intact. Affect is somewhat depressed. At this time, she
denies suicidal ideation.
Dr. Jamieson’s final report listed the following diagnoses: chronic back pain from
mid-lumbar area and radiating into both legs; anxiety and depression and
agoraphobia; bipolar; borderline personality disorder; chronic pain in legs and
back; left hip pain secondary to a contusion suffered in July 2008. Lacina’s
prognosis was “[f]air” and it was noted that she “could possibly benefit from a
psychiatric evaluation.”
On April 1, 2010, Lacina presented to Dr. Karl D. Jones, a general
psychiatrist, complaining of anxiety, depression, poor concentration and poor
memory. Dr. Jones reported:
[Lacina’s] appearance is casual, behavior is appropriate and
somewhat isolated. Speech is normal and slowed. Mood is anxious,
labile and depressed. Affect is blunted. Thought content is
appropriate. She is not psychotic, hallucinatory, or delusional.
Insight and judgment is fair. Intelligence is average. Degree of
stress is severe. Memory; immediate, recent and remote, remains
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intact. Cognitive functions are within normal limits. Proverb
interpretation is impaired. There are no suicidal or homicidal
thoughts, feelings or intentions at this time. There is a past history of
suicidal attempt by overdose. . . . Compliance with treatment in the
past has been fair.
Dr. Jones’ diagnostic impressions included bipolar disorder, generalized anxiety
disorder, borderline personality, and severe psychosocial stressors. He noted that
Lacina’s “[c]urrent GAF is 60 and over the last year approximately the same.” He
also noted that Lacina had “moderate impairment” in daily living and “marked
impairment” in social functioning, concentration and adaption. Based on his
observation that Lacina’s impairment levels “significantly impede useful
functioning,” Dr. Jones concluded that Lacina was “totally disabled.”
Non-examining DDS doctors Nancy Dinwoodie, M.D., and Martha Putney,
Ph.D. reviewed Lacina’s disability file in March 2008 and August 2008,
respectively. Both doctors reported that Lacina had only mild limitations in
functioning and thus her mental impairments were “not severe.” Thomas Renny,
D.O., reviewed Lacina’s file in December 2008 and reported that she retained
functional capacity to perform light exertional work with occasional postural
limitations and the avoidance of concentrated exposure to vibration.
By decision dated April 29, 2010, the ALJ concluded that Lacina was not
disabled and denied her claim for disability insurance benefits and supplemental
security income. The Appeals Council denied Lacina’s request for review, making
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it the Commissioner’s final decision. 4 On January 10, 2014, the district court
affirmed the Commissioner’s decision. This is Lacina’s appeal.
II.
Our review of the Commissioner’s decision is limited to an inquiry into
whether there is substantial evidence to support the findings of the Commissioner,
and whether the correct legal standards were applied. See 42 U.S.C. § 405(g); see
also Dyer v. Barnhardt, 395 F.3d 1206, 1210 (11th Cir. 2005) (“If the
Commissioner’s decision is supported by substantial evidence, this Court must
affirm, even if the proof preponderates against it.”) (quotation marks omitted).
It is “solely the province of the [Commissioner]” to resolve conflicts in the
evidence and assess the credibility of witnesses. Grant v. Richardson, 445 F.2d
656, 656 (5th Cir. 1971).5 It is the Commissioner’s responsibility to draw
inferences from the evidence, and those inferences are not to be overturned if they
are supported by substantial evidence. Celebrezze v. O’Brient, 323 F.2d 989, 990
(5th Cir. 1963).
4
See Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (“When . . . the ALJ denies
benefits and the [Appeals Council] denies review, we review the ALJ’s decision as the
Commissioner’s final decision.”).
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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“Within this narrowly subscribed role, however, we do not act as
automatons.” McGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). “We
must scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Id. Substantial evidence is
defined as “more than a scintilla and is such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quotation marks omitted).
III.
In order to determine whether a claimant is disabled, and thus entitled to
payment of disability insurance benefits and supplemental security income, the
Social Security Administration applies a five-step sequential evaluation. 20 C.F.R.
§ 404.1520(a).
This process includes an analysis of whether the claimant: (1) is engaging in
substantial gainful activity; (2) has a medically determinable impairment or
combination of impairments that is “severe”; (3) has an impairment or combination
of impairments that meets or equals a Listing and meets the duration requirements;
(4) can perform her past relevant work, in light of RFC; and (5) can make an
adjustment to other work, in light of her RFC, age, education, and work
experience. Id. § 404.1520(a)(4).
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In this case, the ALJ determined, at step one, that Lacina was not engaging
in substantial gainful activity and, at step two, that she had medically determinable
severe impairments, including “anxiety/depression disorder, alcohol abuse, [and]
hip and joint pain.”
At step three, the ALJ made several additional and significant findings,
including that Lacina had “no restriction” in activities of daily living; and “mild
difficulties” in social functioning and with respect to concentration, persistence or
pace, noting that Lacina was going to school to get her GED. The ALJ also found:
“No medically documented history of inability to function independently outside
the area of [her] home.” Based on those findings of fact, the ALJ concluded that
Lacina did not have an impairment or combination of impairments that meets or
equals a Listing. Lacina does not directly challenge any of the ALJ’s findings or
conclusions at steps one through three.
Instead, Lacina contends that the ALJ committed reversible error at steps
four and five of the evaluation. Specifically, Lacina argues that the ALJ’s
assessment of her RFC was flawed because he improperly weighed relevant
medical opinion evidence. Lacina further argues that the ALJ posed an incomplete
hypothetical to the VE at her hearing.
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A. Is the ALJ’s RFC flawed because the ALJ improperly weighed the medical
opinions?
A claimant’s RFC is used at step four of the sequential evaluation process to
determine if the claimant can do past relevant work and in step five to determine if
a claimant can adjust to other work. RFC is defined as “the most [a claimant] can
still do despite [her] limitations.” 20 C.F.R. § 416.945(a)(1). In assessing a
claimant’s RFC, the ALJ must consider “all the relevant medical and other
evidence in [the claimant’s] case record.” Id. at § 416.920(e). 6 This includes a
consideration of both severe impairments, and “medically determinable
impairments that are not ‘severe.’” Id. at § 416.945(a)(2). An “ALJ may reject
any medical opinion if the evidence supports a contrary finding.” Sharfarz v.
Bowen, 825 F.2d 278, 280 (11th Cir. 1987). The ALJ is required, however, “to
state with particularity the weight he gave the different medical opinions and the
reasons therefor.” Id. at 279.
6
Certain principles apply to the evaluation of medical opinions. For example, the opinion
of an examining medical professional is generally entitled to greater weight than the opinion of a
non-examining medical professional. See id. at § 404.1527(c)(1). Similarly, the opinion of a
“treating” source (i.e., a medical professional who is able to provide a detailed, longitudinal
picture of [the claimant’s] medical impairment(s)”) is usually entitled to greater weight than the
opinion of a medical professional who sees the claimant only once or for a brief period of time.
Id. at § 404.1527(c)(2). An ALJ will also consider: the length, frequency, and nature of the
provider-patient relationship, the extent to which a provider or other source presents relevant
medical evidence to support his opinion, and the consistency of an opinion with the record as a
whole. See generally § 404.1527(c).
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Lacina asserts that the ALJ, in assessing her RFC, committed reversible
error when he allegedly did not state the weight he was giving to Dr. Corzo’s
assessment of GAF scores, and gave too little weight to Dr. Jones’ opinion.
Dr. Corzo is the psychiatrist who examined Lacina at PEMHS in January
2008. The ALJ accurately recounted Lacina’s medical records from that two-day
hospitalization, including Dr. Corzo’s notes and diagnostic impressions. The ALJ
also stated that Dr. Corzo’s notes “fully support[ed]” the ALJ’s findings with
respect to Lacina’s RFC. The ALJ did not, however, mention or assign weight to
the two GAF scores (35 and 40) that Dr. Corzo assigned to Lacina – scores that can
reflect “major” mental impairments.7
Lacina urges us to find that the failure to specifically account for those GAF
scores is reversible error. We conclude that, at most, it is harmless error. At the
outset, it is important to note that the Commissioner has indicated that GAF scores
have no “direct correlation to the severity requirements of the mental disorders
listings.” See 65 Fed.Reg. 50746, 50764-65. More importantly, however, the
record reflects that the ALJ considered the evidence relevant to Lacina’s mental
impairments and that his conclusions were supported by substantial evidence. The
GAF scores in question were assigned over a two-day period of hospitalization in
7
See American Psychiatric Association Diagnostic and Statistical Manual of Mental
Disorders, at 32 (4th ed. 1994) (DSM-IV).
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January 2008, brought on in part by Lacina’s not taking her prescribed
medications, medications that Lacina testified are helpful when she takes them.
Lacina was stabilized during the hospitalization, and returned to appropriate
medications. Very shortly after her discharge from the hospital, on January 25,
2008, Lacina was seen at Suncoast for out-patient medical health treatment, and
was given a GAF score of 56. In subsequent evaluations, Lacina’s GAF scores
improved steadily into the 50’s for most of the balance of 2008 and reaching
approximately 60 for the year preceding April 2010. A score of 60 reflects mild to
moderate symptoms in social, occupational and school functioning, and is not
inconsistent with the ALJ’s conclusion that Lacina’s mental impairments “do not
preclude [her] from adjusting to a very simple work setting,” especially where
“treatment records have consistently documented that [she] was alert, cooperative
and oriented in person, place, time and situation.”
Lacina next argues that the ALJ gave too little weight to Dr. Jones’ opinion.
Dr. Jones is the psychiatrist who examined Lacina on April 1, 2010, immediately
before the hearing before the ALJ on April 6, 2010. Dr. Jones’ diagnostic
impressions included bipolar disorder, generalized anxiety disorder, borderline
personality, and severe psychosocial stressors. He also noted that Lacina had
“moderate impairment” in daily living and “marked impairment” in social
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functioning, concentration, and adaption. He concluded that she was “totally
disabled.”
The ALJ afforded “little weight” to Dr. Jones’ opinion. After correctly
noting that “the issue of disability is one reserved to the Commissioner” see 20
C.F.R. §§ 404.1527(d)(1), 416.927(d)(1), the ALJ explained that the remainder of
Dr. Jones’ opinion was discredited because he examined Lacina only once, and,
more importantly, because his opinion was inconsistent with other substantial
evidence. The other substantial evidence to which the ALJ referred included
Lacina’s own testimony with respect to her activities as well as very substantial
other medical evidence which was inconsistent with Dr. Jones’ opinion.
Moreover, the ALJ noted that Dr. Jones “apparently relied quite heavily on the
subjective report of symptoms and limitations provided by the claimant,”8 and the
ALJ expressly referenced his earlier credibility finding, saying: “Yet, as explained
elsewhere in this decision, there exist[sic] good reason for questioning the
reliability of the claimant’s subjective complaints.”
On February 18, 2008 – just over a month after Dr. Corzo discharged Lacina
– she applied for benefits and described her daily activities as going to school each
8
Dr. Jones’ report bears out the ALJ’s observation that he relied heavily upon Lacina’s
oral representations and complaints. His report was replete with observations that “she said . . ..”
Moreover, the only obviously objective aspect of Dr. Jones’ report was its statement that “[o]n
the social and occupational functioning assessment scale, she scores in the area of 60,” which he
also indicated had been the approximate GAF score for the last year.
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day for four hours, catching two buses home, and after a rest, doing homework,
housework, bathing her four-year old, and cooking. At a September 2008
appointment with Nurse Shytle at Suncoast, Lacina indicated that she was then
going to school part-time and was planning to go fulltime beginning in October.
The fact of such activity strongly supports the ALJ’s discount of Dr. Jones’
opinion that Lacina was totally disabled, and his opinion that she suffered marked
impairment in social functioning, concentration and adaption.
The other significant reason given by the ALJ for discounting Dr. Jones’
opinion – that his opinion was inconsistent with the other medical evidence – is
amply supported by the record. As the ALJ noted, “the treatment records from
Suncoast consistently documented that the claimant was oriented to person, place,
time and situation, affect animated, speech was clear and coherent, her thought
processes were logical and goal-directed, and her insight and judgment were fair.”
The ALJ’s description of the Suncoast medical records is accurate. We conclude
that the record amply supports the ALJ’s discounting of Dr. Jones’ opinion.9
9
Lacina’s brief makes a conclusory assertion that the ALJ also failed to address the weight
to be given to the opinions of Nurse Shytle; Lacina’s bald assertion is insufficient to preserve the
issue. Moreover, as indicated above, the ALJ provided ample discussion of Lacina’s treatment at
Suncoast, and by Nurse Shytle, and the ALJ properly concluded that the medical records from
that treatment “fully supported” the ALJ’s findings with respect to the extent of Lacina’s
limitations and his determination with respect to her RFC.
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For the foregoing reasons, we reject Lacina’s challenge to the ALJ’s
assessment of the medical opinions, and we conclude that the ALJ’s interpretation
of the medical evidence is amply supported by the record. We also conclude that
the medical evidence and the evidence with respect to Lacina’s daily activities
amply supports the ALJ’s finding that Lacina suffers only from “mild difficulties”
with respect to social functioning and concentration, persistence, or pace.
Accordingly, the ALJ’s findings with respect to Lacina’s RFC are supported by the
record.
B. Claimant’s Challenge to the Hypothetical Posed by the Vocational
Expert
Lacina’s primary challenge to the sufficiency of the hypothetical posed to
the Vocational Expert is the failure to include any impairment attributable to
agoraphobia,10 which was mentioned by Dr. Jamieson and Dr. Corzo. We reject
Lacina’s challenge. The ALJ found: “[T]here is no medically documented history
of inability to function independently outside the area of one’s home.” And the
ALJ found that Lacina suffers only “mild difficulties” with respect to social
10
The Mayo Clinic staff defines agoraphobia as “a type of anxiety disorder in which you
fear and often avoid places or situations that might cause you to panic and make you feel
trapped, helpless or embarrassed. With agoraphobia, you fear an actual or anticipated situation,
such as using public transportation.” Mayo Clinic Staff, Agoraphobia, Mayo Clinic, (Mar. 26,
2015, 5:45 PM), http://www.mayoclinic.org/diseases-
conditions/agoraphobia/basics/definition/con-20029996
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functioning and concentration, persistence, or pace. The ALJ’s findings have
substantial support in the record evidence. Neither Dr. Jamieson nor Dr. Corzo
indicated the severity of Lacina’s agoraphobia, and neither doctor indicated any
limitation on Lacina’s functioning attributable to agoraphobia. Lacina’s daily
school attendance and capacity to take public transportation demonstrated that any
impairment attributable to agoraphobia is minimal, or at least mild. Moreover, the
hypothetical to the Vocational Expert – and the ALJ’s RFC – limited the available
jobs to those involving simple work limited to four-step work, and also limited to
those jobs with “only occasional contact with the public.” Thus, both the
hypothetical to the Vocational Expert and the ALJ’s formulation of Lacina’s
residual functional capacity reflected the ALJ’s assessment of the medical
evidence and his finding that Lacina suffers only from “mild difficulties” with
respect to social functioning and concentration, persistence, and pace.11
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED. 12
11
Immediately preceding the ALJ’s formulation of Lacina’s RFC, the ALJ expressly noted:
“Therefore, the following residual functional capacity assessment reflects the degree of
limitation the undersigned has found in the ‘paragraph B’ mental function analysis.”
12
Any other arguments asserted on appeal by Lacina are rejected without need for further
discussion.
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