Mark C. Luterman v. Commissioner of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15001
Non-Argument Calendar
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D.C. Docket No. 6:11-cv-01154-JBT
MARK C. LUTERMAN,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 2, 2013)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
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Mark Luterman appeals the magistrate judge’s order affirming the
administrative law judge’s (“ALJ”) denial of his applications for disability
insurance benefits, 42 U.S.C. § 405(g), and supplemental security income, 42
U.S.C. § 1383(c)(3). After review, we affirm.
I. FACTUAL BACKGROUND
In 2007, Luterman applied for benefits, alleging that he was disabled due to
neck and shoulder pain related to a work injury, degenerative disc disease, bipolar
disorder with psychotic features, and intermittent explosive disorder. After
Luterman’s application was denied, he requested a hearing before an ALJ. After
that hearing, the ALJ denied benefits, too. Because Luterman challenges the ALJ’s
residual functional capacity (“RFC”) finding, we review both the medical records
and the testimony at the hearing.
A. Medical Evidence
Luterman’s medical records indicate that he suffers from degenerative disc
disease, left shoulder tendonitis, knee effusion (water on the knee), diabetes
mellitus (an inability to use glucose normally), hypertension, and obesity. Because
the issues on appeal relate to the ALJ’s handling of Luterman’s mental limitations,
however, we review only the evidence relating to Luterman’s mental impairments.
In April 2007, Luterman began receiving outpatient mental health treatment
at Lakeside Behavioral Healthcare (“Lakeside”). Luterman was seen by Linda
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Yankovic, a nurse practitioner at Lakeside. Yankovic performed a psychiatric
evaluation and diagnosed Luterman as having bipolar I disorder, severe with
psychotic features. Yankovic’s exam notes indicate that Luterman, inter alia, had
poor attention span and concentration, had bad judgment, appeared anxious and
restless, reported feeling depressed and having mood swings, and was withdrawn
and isolated. At a May 2007 evaluation, Yankovic diagnosed intermittent
explosive disorder, which is characterized by repeated episodes of impulsive,
aggressive, violent behavior or verbal outbursts that are grossly out of proportion
to the situation. Yankovic prescribed Depakote to decrease Luterman’s rage
behavior and Risperdal to decrease his paranoia and visual hallucinations.
Nurse Yankovic saw Luterman on follow-up visits about every three
months. According to Yankovic’s treatment notes, in May 2007, Luterman’s
memory was intact, but he had some difficulty concentrating and his insight,
judgment and impulse control were impaired. In July 2007, Yankovic rated his
memory and concentration as fair, but his insight and judgment as poor. Yankovic
noted that Luterman was irritable and paranoid and increased his Depakote dosage.
In October 2007, Luterman reported that he felt better, and Yankovic rated his
memory, concentration, insight, and judgment as fair. In January and April 2008,
Yankovic again rated Luterman’s memory, concentration, insight, and judgment as
fair. In July 2008, Luterman saw Yankovic and reported that he was sleeping
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better, but was frustrated about money. Yankovic noted that Luterman’s memory,
concentration, insight, and judgment were fair and his condition was stable. In
October 2008 and May, August and November 2009, Yankovic indicated there
were no changes in Luterman’s memory, concentration, insight, or judgment, and
Luterman remained stable.
For each visit, Nurse Yankovic also noted a global assessment of
functioning (“GAF”) score. Mental health professionals use GAF scores to rate a
patient’s social, occupational and psychological functioning. Most of Yankovic’s
treatment notes contain a GAF score of 40 or 50, indicating serious impairment.
In December 2007, a consulting psychologist, Dr. Deborah Carter,
completed a psychiatric review technique after reviewing Luterman’s medical
records. Dr. Carter noted that Luterman had: (1) affective disorders, including
disturbance of mood and severe bipolar disorder with psychotic effects and manic
and depressive syndromes; and (2) inflexible and maladaptive personality traits
and intermittent explosive disorder. Dr. Carter indicated that Luterman had mild
limitations in his activities of daily living and moderate limitations in his social
functioning and concentration, persistence, and pace. Dr. Carter noted that
Luterman’s treatment notes indicated some improvement and that he was capable
of performing simple, repetitive tasks with limited social contacts.
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Dr. Carter also completed a mental residual functional capacity (“RFC”)
assessment which noted, inter alia, that Luterman: (1) had no significant memory
limitations; (2) had no limitations with short, simple instructions, detailed
instructions, or working within a scheduled ordinary routine; (3) had moderate
limitations maintaining attention and concentration for extended periods, working
with others, completing work without interruptions, performing at a consistent
pace without rest periods, interacting appropriately with the public, accepting
instructions and criticism, getting along with coworkers, and maintaining socially
appropriate behavior; (4) was able to understand, remember, and carry out routine
instructions, and concentrate to complete tasks he started; (5) appeared capable of
functioning in settings that required minimal social interaction; (6) retained the
capacity to function mentally and socially in order to perform his activities of daily
living and to interact acceptably with others.
In May 2008, Dr. David Fleischmann, a psychologist, performed a
consultative clinical evaluation and mental status examination. Dr. Fleischmann
noted that Luterman had received sporadic treatment since 1993 for intermittent
explosive disorder and bipolar disorder. Among other things, Luterman “was often
non-compliant with his medication, resulting in exacerbations of quick ill-
temperament, irritability, oversensitivity and consequent frequent conflicts.” As a
result, Luterman was often fired for his behavior, such as cursing at supervisors or
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coworkers. Luterman also had been charged with several felonies, including
assaults. Luterman reported having haunting thoughts, including auditory and
visual hallucinations, and was prone to sleepwalking, during which he would
become aggressive and destructive.
Dr. Fleischmann stated that Luterman was on numerous medications, some
of which might have side effects that exacerbated his behavioral and emotional
instability. Luterman admitted overusing his pain medications and narcotics to the
point that Luterman believed they were no longer effective. Dr. Fleischmann
indicated that Luterman lived independently and was capable of managing his own
personal and financial affairs, such as caring for himself, cooking simple meals,
driving, and conversing with neighbors. Luterman described himself as a “loner”
who had learned to stay away from others to avoid conflicts. As to Luterman’s
mental status, Dr. Fleischmann noted that Luterman had a good memory and
thought and spoke logically, but that he had anti-establishment attitudes and
threatened to engage in antisocial behavior, such as theft, if he did not get what he
needed.
Dr. Fleishmann diagnosed Luterman with intermittent explosive disorder,
opioid dependence, chronic adjustment disorder with physical complaints and
mixed emotional features, and personality disorder, not otherwise specified (anti-
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social and narcissistic traits). Dr. Fleishmann also noted that Luterman’s physical
impairments contributed to his chronic adjustment difficulties and irritability.
In June 2008, another consulting psychologist, Dr. Lee Coleman, reviewed
Luterman’s medical records and completed a psychiatric review technique. Dr.
Coleman noted Luterman’s bipolar disorder and Dr. Fleishmann’s May 2008
diagnoses of personality disorder and intermittent explosive disorder and opioid
dependence due to prescription drug abuse. Dr. Coleman indicated that
Luterman’s personality disorders caused: (1) pathologically inappropriate
suspiciousness or hostility; (2) persistent disturbances of mood and affect; (3)
pathological dependence, passivity, or aggressivity; and (4) anti-social and
narcissistic traits. Dr. Coleman determined that Luterman: (1) had no limitations
in his activities of daily living; and (2) had moderate limitations in social
functioning and concentration, persistence, and pace. In addition, Dr. Coleman
noted that although Luterman claimed he could not follow written or spoken
instructions well, he had completed his activities of daily living form well and had
followed Dr. Fleischmann’s verbal instructions during the consulting examination.
Dr. Coleman completed a mental RFC assessment, noting in relevant part
that Luterman: (1) had moderate limitations in remembering and carrying out
instructions, maintaining concentration for extended periods, working with others,
accepting instructions and criticism, and getting along with co-workers; (2) was
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able to understand, retain, and perform simple one-step tasks and instructions; and
(3) could work in a non-production work environment that had few coworkers,
limited public contact, and routine breaks.
B. Administrative Hearing
At a January 2010 hearing, Luterman testified about, inter alia, his mental
disorders and their symptoms. Luterman reported that he would become “mentally
weak,” and unable to do tasks, and he would then become frustrated and throw fits.
Luterman said he took tranquilizing medications that helped him control his anger
and made his sleepwalking and nightmares “more mild.” However, his
medications also made him feel sick and groggy, requiring him to nap during the
day and disrupting his sleep at night.
Dr. Richard Smith, a vocational expert, also testified. Among several
hypotheticals the ALJ posed to Dr. Smith, the ALJ asked whether there were jobs
available for a person who could do only light work, could lift twenty pounds
occasionally and ten pounds frequently, but could not lift his left arm above the
shoulder level, and had no interaction with the general public, no more than five or
ten coworkers, and only indirect supervision. Dr. Smith indicated that there were
jobs that person could do, such as small parts assembly in the electronics industry
that were “one and two step operations.” The ALJ asked that the jobs be limited to
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unskilled positions. Dr. Smith responded that these were all unskilled jobs and
added construction flagger and cleaner or housekeeper.
The ALJ then inquired about sedentary jobs with the same restrictions but
that involved sitting most of the day, lifting five pounds frequently and ten pounds
occasionally. Dr. Smith testified that there were small assembly operations, such
as eyeglass assembly, fishing reel assembly or toy and sport equipment assembly,
such as stuffer or golf ball trimmer, stamper, or inspector. Dr. Smith clarified that
these were jobs that were not done on a conveyor belt and would allow the person
to stand intermittently as long as he did not leave his work station. Dr. Smith
indicated that there would be no jobs available if the person “was going to be off
task” twenty percent of the time because of drowsiness from medication.
In response to Luterman’s questions, Dr. Smith stated that most jobs
required more than one step, but not more than two, and that about half of the
electronic assembly jobs were “simple one step jobs.” Dr. Smith clarified that
some of the assembly jobs, although not on a conveyor belt, were production-type
jobs. However, the time limit on production was very liberal because these jobs
were more concerned about errors than speed. Luterman asked whether there
would be jobs available if the person was limited to simple one step tasks in a
nonproduction work setting with a few familiar coworkers. Dr. Smith stated that
there were no such jobs available.
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C. ALJ’s Decision
The ALJ denied Luterman’s applications for disability benefits, finding that
Luterman: (1) had not engaged in substantial gainful activity since October 9,
2006; (2) had the severe impairments of degenerative disc disease, left shoulder
tendonitis, knee effusion, diabetes mellitus, hypertension, intermittent explosive
disorder, personality disorder NOS (not otherwise specified), and obesity; (3) did
not have an impairment or combination of impairments that met or equaled a listed
impairment; (4) had the RFC to perform light work “except the claimant is only
able to perform unskilled work involving no interaction with the public, no crowds
and only indirect supervision,” and “would also need to be able to alternate
between sitting and standing every 60 minutes and he cannot raise his left arm
above his shoulder”; and (5) was unable to perform his past relevant work as a
truck driver, but, considering his age, education, work experience, and RFC, could
perform jobs that exist in significant numbers in the national economy.
With respect to Luterman’s RFC (step 4 noted above), the ALJ stated that
she had considered Luterman’s symptoms to the extent they were reasonably
consistent with the evidence. The ALJ found that the impairments could
reasonably cause the alleged symptoms. However, Luterman’s statements as to the
intensity, persistence, and limiting effects of his symptoms were not credible to the
extent they were inconsistent with the RFC.
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After reviewing Luterman’s mental health treatment history, the ALJ stated
that Luterman had “not generally received the type of medical treatment one would
expect for a totally disabled individual.” Among other things, the ALJ noted that:
(1) Dr. Fleischmann reported in May 2008 that Luterman was noncompliant with
his medications, although treatment notes from the same period stated that
Luterman was compliant; (2) in September 2009, Luterman was not taking any
psychiatric medication and yet treatment notes indicated his insight, judgment, and
memory were intact, he was oriented, and he had no depression, anxiety or
agitation; (3) Luterman’s treatment history had significant gaps, including one
from October 2008 to May 2009; (4) Luterman’s medications had been relatively
effective in controlling his symptoms; (5) medical records did not corroborate
Luterman’s claims that his medications made him drowsy and dizzy; and (6)
although Luterman had received mental health treatment as early as 1993, he had
worked until 2006 (including for one employer for three years), which suggested
Luterman’s mental impairments did not prevent him from working.
The ALJ acknowledged the proffered GAF scores in Nurse Yankovic’s
treatment notes, but stated that GAF scores had “dubious applicability to the
claimant’s social and occupational functioning” because they were “a subjective
clinical impression of the claimant’s overall functioning.” In addition, the Social
Security Commission had declined to endorse the use of GAF scores in social
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security disability programs because they have no direct correlation to the severity
requirements of the mental disorders listings. See Revised Medical Criteria for
Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746,
50764-65 (Aug. 21, 2000).
As for the medical opinion evidence, the ALJ noted: (1) Dr. Carter found
that Luterman could understand, remember and carry out routine instructions;
could make routine decisions and concentrate to complete tasks; could function
mentally and socially to perform his activities of daily living, and could interact
acceptably with others; and (2) Dr. Coleman found that Luterman could understand
and perform simple one-step tasks, perform simple repetitive tasks in a non-
production environment, interact with coworkers and supervisors, and respond
appropriately to direct, nonconfrontational feedback and supervision, but should
have limited public contact and be provided routine breaks. The ALJ gave
significant weight to Drs. Carter and Coleman to the extent their opinions were
consistent with the RFC.1 The ALJ found that Luterman’s alleged limitations were
1 The ALJ also considered a July 2008 form letter signed by Nurse Yankovic that stated
Luterman was “unable to work due to mental health illness.” A handwritten notation stated that
Luterman was “unable to work due to back pain & when under stress I yell and break things.”
The ALJ concluded that, as a nurse practitioner, Yankovic was not an acceptable medical source
under the Social Security regulations. See 20 C.F.R. §§ 404.1513, 416.913(a) (excluding nurse
practitioner from list of acceptable sources that can establish the existence of an impairment).
The ALJ alternatively concluded that Nurse Yankovic’s opinion was conclusory and appeared
“to rest at least in part on an assessment of an impairment outside [her] area of expertise (the
claimant’s back impairment).” The ALJ’s treatment of Nurse Yankovic’s opinion in the form
letter is not at issue on appeal.
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more restrictive than those supported by the objective medical evidence and that
the exertional and nonexertional limitations in the ALJ’s RFC finding were
consistent with the objective medical evidence.
In considering what work Luterman could perform (step 5 noted above), the
ALJ found that, given Luterman’s RFC, he could not perform his past relevant
work or a full range of light work. However, the vocational expert had testified
that a person with Luterman’s RFC could perform a number of light jobs,
including small parts assembler, construction flagger, and hotel cleaner, and
sedentary jobs, including assembly worker, fishing reel assembler, stuffer in the
toy industry, or golf ball trimmer or inspector. The ALJ noted that Luterman had
asked the vocational expert about jobs available to someone who was limited to
one step tasks in a nonproduction setting with few people around and that the
vocational expert had responded that there were no jobs available under those
conditions. The ALJ found, however, “no persuasive support in the claimant’s
treatment records to indicate he is limited to this extent.”
Based on the vocational expert’s testimony, the ALJ concluded that
Luterman was not disabled. The Appeals Council denied review of the ALJ’s
decision, making it the final decision of the Commissioner. See Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001). On judicial review, the magistrate judge
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entered an order affirming the Commissioner’s decision.2 Luterman filed this
appeal.
II. DISCUSSION
A. Five-Step Evaluation
Under the five-step sequential evaluation used to determine whether a
claimant is disabled, the ALJ considers: (1) whether the claimant is engaged in
substantial gainful activity; (2) if not, whether the claimant has a severe
impairment or combination of impairments; (3) if so, whether the severe
impairment meets or equals an impairment listed in the Listing of Impairments; (4)
if not, whether the claimant has the RFC to perform his past relevant work; and (5)
if not, whether, in light of the claimant’s age, education, and work experience, the
claimant can perform other work that exists in significant numbers in the national
economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears the
burden to prove the first four steps. If the claimant does so, the burden shifts to the
Commissioner to prove the fifth step. Jones v. Apfel, 190 F.3d 1224, 1228 (11th
Cir. 1999).
B. Luterman’s Claims
On appeal, Luterman argues that the ALJ erred (1) at the fourth step by
failing to include Dr. Coleman’s one-step tasks and nonproduction work setting
2 The parties consented to proceeding before the magistrate judge.
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limitations into the RFC ,and (2) at the fifth step by relying on vocational expert
testimony in response to a hypothetical question that omitted those same
limitations.3
RFC is a medical assessment of what the claimant can do in a work setting
despite any mental, physical, or environmental limitations caused by the claimant’s
impairments or related symptoms. 20 C.F.R. §§ 404.1545(a), 416.945(a). RFC
includes mental abilities, such as the ability to understand, remember, and carry out
instructions or respond appropriately to supervision, coworkers, and work pressure.
Id. §§ 404.1545(c), 416.945(c). The RFC is based on all the relevant evidence in
the record, including any medical evidence, and is used in steps four and five of the
evaluation process to determine what work the claimant can do. Id.
§§ 404.1545(a)(1), (5), 416.945(a)(1), (5); see also Phillips v. Barnhart, 357 F.3d
1232, 1238 (11th Cir. 2004).
In assessing the claimant’s RFC, the ALJ must state with particularity the
weight given to different medical opinions and the reasons therefor. Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987). The ALJ also must consider any
findings of a state agency medical or psychological consultant, who is considered
3 Our review is limited to whether the ALJ’s decision is supported by substantial evidence
and based on the proper legal standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178
(11th Cir. 2011). “Substantial evidence is more than scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. (quotation marks
omitted). Under this limited standard, we may not make findings of fact, reweigh the evidence
or substitute our judgment for that of the Commissioner. Id.
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an expert, and must assign weight and give explanations for assigning weight the
same way as with any other medical source. See 20 C.F.R. §§ 404.1527(e)(2),
416.927(e)(2); SSR 96-6p, 1996 WL 374180 (Jul. 2, 1996). In determining how
much weight to give a medical opinion, the ALJ considers factors such as the
examining or treating relationship, whether the opinion is well-supported, whether
the opinion is consistent with the record, and the doctor’s specialization. See 20
C.F.R. §§ 404.1527(c), 416.927(c).
At the fifth step, the ALJ must determine whether a significant number of
jobs exist in the national economy that the claimant can perform given his RFC.
Where, as here, there are nonexertional limitations, the ALJ “must introduce
independent evidence, preferably through a vocational expert’s testimony,” of the
existence of such jobs. Wolfe v. Chater, 86 F.3d 1072, 1077-78 (11th Cir. 1996).
For the vocational expert’s testimony to constitute substantial evidence, the ALJ
must pose a hypothetical question that comprises all of the claimant’s impairments.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011).
However, the ALJ need not include “each and every symptom” of the claimant’s
impairments, Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1270 (11th
Cir. 2007), or medical “findings . . . that the ALJ had properly rejected as
unsupported.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir.
2004).
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Here, the ALJ’s RFC determination at step four was supported by substantial
evidence. The ALJ stated that she gave significant weight to Drs. Carter and
Coleman’s opinions, both of whom found moderate limitations in Luterman’s
social functioning and his concentration, persistence, and pace. Drs. Carter and
Coleman agreed, however, that Luterman could follow short, simple instructions
and needed a work environment with minimal public interaction and few
coworkers. Thus, the ALJ adequately explained the weight she assigned to these
opinions.
Luterman complains that Dr. Coleman’s mental RFC assessment limited
Luterman to one-step tasks and a nonproduction work setting, which the ALJ did
not include in her RFC finding. However, the ALJ explained that these additional
limitations were not supported by Luterman’s treatment record. The ALJ’s reason
for excluding Dr. Coleman’s additional limitations is supported by substantial
evidence. After Dr. Coleman’s June 2008 evaluation, Lakeside treatment notes
consistently observed that Luterman’s concentration, insight, and judgment were
fair and that his condition was stable. Further, treatment notes for Luterman’s
physical impairments indicate that between September and December 2009,
Luterman was not taking mental health medications, yet his judgment, insight, and
memory were all intact.
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Luterman also contends that the ALJ should have considered the GAF scores
in Yankovic’s treatment notes and determined what weight to give them. In fact,
the ALJ did explicitly consider the GAF scores, but discounted them because they
provided only a subjective clinical impression of Luterman’s overall functioning,
rather than his occupational functioning, and because the Commissioner does not
endorse use of the GAF scale for disability purposes. Substantial evidence
supports the ALJ’s conclusion that Luterman could perform unskilled work with
indirect supervision and no public interaction or crowds.
Because the medical evidence indicated that, despite moderate limitations in
social functioning and concentration, persistence, and pace, Luterman could
perform simple, one and two step tasks in a work setting with minimal social
interaction and no public contact, the ALJ’s hypothetical question sufficiently
accounted for Luterman’s mental impairments. See Winschel, 631 F.3d at 1180.
The ALJ was not required to include in the hypothetical question Dr. Coleman’s
additional limitations that the ALJ found were not supported by the record. See
Crawford, 363 F.3d at 1161. Accordingly, the vocational expert’s testimony is
substantial evidence supporting the ALJ’s decision that Luterman could perform a
significant number of jobs in the national economy, and was not disabled.
AFFIRMED.
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