Olen Faison v. Commissioner of Social Security

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10654
Non-Argument Calendar
____________________
OLEN FAISON,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cv-02901-SPF
____________________
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2 Opinion of the Court 23-10654
Before J ORDAN, JILL PRYOR , and B RANCH, Circuit Judges.
PER CURIAM:
Olen Faison appeals the district court’s order affirming the
Commissioner of Social Security’s denial of his application for a pe-
riod of disability and disability insurance benefits. He argues that
the administrative law judge (“ALJ”) erred in assessing his residual
functional capacity by not relying on uncontroverted medical opin-
ion evidence. After careful review, we affirm.
I.
Faison applied for a period of disability and disability insur-
ance benefits with the Social Security Administration, alleging that
he was disabled due to various impairments.1 An ALJ held multiple
evidentiary hearings on Faison’s application for benefits.2 The rec-
ord before the ALJ showed that Faison was a Navy veteran who
had previously worked for the Department of Veterans Affairs
(“VA”) at a VA hospital as a purchasing agent. Faison testified that
he was no longer able to work due to a variety of impairments,
1 Because we write for the parties, we assume their familiarity with the under-
lying record and include only what is necessary to resolve this appeal.
2 After the first two hearings, the ALJ found that Faison was not disabled and
denied his application for benefits. Faison sought review of that decision in the
district court, which reversed the Commissioner’s decision and remanded for
further proceedings. See Faison v. Comm’r of Soc. Sec., No. 8:19-cv-1959, 2020
WL 13401909, at *5 (M.D. Fla. Aug. 27, 2020). Upon remand, the ALJ held a
third evidentiary hearing.
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23-10654 Opinion of the Court 3
including post-traumatic stress disorder (“PTSD”) and anxiety. Fai-
son reported that due to these conditions, he had problems follow-
ing instructions, had difficulty managing stress, had panic attacks
around crowds, and found it hard to learn a new routine.
The evidence before the ALJ included Faison’s medical rec-
ords. The ALJ also reviewed VA determinations that Faison was
disabled. In 2010, the VA determined that Faison had a service-con-
nected disability rating of 100%, 70% of which was assessed for
“[r]ecurrent major depressive disorder without psychotic features;
post traumatic stress disorder; panic disorder; and intermittent ex-
plosive disorder.” Doc. 8-7 at 2.3 In a later review in 2016, the VA
again concluded that he had a service-connected disability rating of
100%, this time with 70% assessed for panic disorder.
The record before the ALJ also included evidence about a
2015 incident when Faison was seeking care at a VA clinic. A health
care worker reported that Faison had made a statement reflecting
suicidal ideation. As a result, Faison was involuntarily committed
overnight. Both at the time of his commitment and before the ALJ,
Faison denied making any statement reflecting suicidal ideation or
that he would hurt himself.
After reviewing the entire record, the ALJ issued a decision
concluding Faison was not disabled. The ALJ used the five-step se-
quential evaluation framework to evaluate whether Faison was
3 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 23-10654
disabled. At the first step, she found that Faison had not been en-
gaged in substantial gainful activity during the relevant time pe-
riod.
At the second step, the ALJ found that Faison suffered from
the following severe impairments: degenerative disc disease of the
lumbar spine, osteoarthritis of the wrists and knees, and obesity.
She acknowledged that Faison also had been diagnosed with de-
pression and anxiety but concluded that these mental impairments
were not severe because they “did not cause more than minimal
limitation in [Faison’s] ability to perform basic mental work activi-
ties.” Doc. 8-18 at 15. The ALJ explained that treatment notes
showed that for his mental health conditions, Faison received “only
conservative treatment, which appear[ed] to have been success-
ful.” Id. at 16.
At the third step, the ALJ determined that Faison did not
have an impairment or combination of impairments that met or
medically equaled the severity of a listed impairment.
The ALJ then assessed Faison’s residual functional capacity.
She concluded that Faison could engage in light work with certain
exertional limitations. But she determined that Faison’s mental im-
pairments “cause[d] . . . no more than minimal limitations in his
ability to perform basic work activities.” Id. at 25. In reaching this
conclusion, the ALJ found that Faison’s “statements concerning the
intensity, persistence[,] and limiting effects of [his] symptoms
[were] not entirely consistent with the medical evidence and other
evidence in the record.” Id. at 24.
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23-10654 Opinion of the Court 5
The ALJ acknowledged that State agency psychological con-
sultants had opined that Faison’s anxiety disorder caused moderate
limitations in several areas, including interacting with others; main-
taining concentration, persistence, and pace; following instruc-
tions; responding to criticism; and responding appropriately to
changes in a work setting. But the ALJ assigned these opinions “lit-
tle weight” because they were inconsistent with Faison’s medical
records from during the period, which showed that he had “no
more than mild symptoms and limitations.” Id. at 18.
The ALJ also acknowledged that the VA had assigned Faison
a 70% disability rating for his mental impairments. But the ALJ
found that this rating was of “little probative value” because “sub-
stantial evidence of record . . . support[ed] a departure from the
VA’s decision.” Id. at 25.
Based on the residual functional capacity assessment, the
ALJ concluded at step four that Faison was able to perform his past
relevant work as an order clerk. The ALJ thus determined that Fai-
son was not disabled during the relevant time period.
Faison sought review from the Appeals Council, arguing
that the ALJ “erred in the evaluation of [his] mental impairments.”
Id. at 2. The Appeals Council disagreed, concluding that the “evi-
dence [did] not . . . indicate” that Faison had “more than a minimal
limitation in [his] ability to do basic work activities.” Id. at 3. Be-
cause the ALJ’s decision was “consistent with [the] applicable laws,
regulations, and Social Security Rulings,” the Appeals Council de-
clined to assume jurisdiction. Id.
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6 Opinion of the Court 23-10654
Faison then filed an action in district court alleging that the
Commissioner improperly denied him benefits. Before the district
court, Faison raised just one issue: “Whether the ALJ erred by sub-
stituting her opinion for the medical opinion evidence of record.”
Doc. 18 at 5.
The district court affirmed the Commissioner’s decision,
concluding that substantial evidence supported the ALJ’s assess-
ment of Faison’s residual functional capacity, including her deci-
sion to include no limitations related to Faison’s mental impair-
ments. This is Faison’s appeal.
II.
We review the Commissioner’s decision to determine
whether it is supported by substantial evidence, but we review de
novo the legal principles upon which the decision is based. Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial evidence
refers to “such relevant evidence as a reasonable person would ac-
cept as adequate to support a conclusion.” Id. Our limited review
precludes us from “deciding the facts anew, making credibility de-
terminations, or re-weighing the evidence.” Id. “Even if we find
that the evidence preponderates against the [Commissioner’s] de-
cision, we must affirm if the decision is supported by substantial
evidence.” Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991).
III.
A disabled individual may be eligible for disability insurance
benefits. 42 U.S.C. § 423(a)(1). To be eligible, a claimant must
prove that he became disabled on or before the date for which he
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23-10654 Opinion of the Court 7
was last insured. See Moore, 405 F.3d at 1211. Because Faison’s last
insured date was December 31, 2018, he had to show a disability
on or before that date.
To determine whether a claimant is disabled, an ALJ applies
a five-step sequential evaluation process. The ALJ asks whether the
claimant: (1) is engaged in substantial gainful activity; (2) has a se-
vere and medically determinable impairment or combination of
impairments; (3) has an impairment or combination of impair-
ments that satisfies the criteria of a listing; (4) can perform his past
relevant work in light of his residual functional capacity; and (5) can
adjust to other work in light of his residual functional capacity, age,
education, and work experience. 20 C.F.R. § 404.1520(a)(4).
In this case, we are concerned with the ALJ’s assessment of
Faison’s residual functional capacity. Faison argues that the ALJ
erred “by substituting her opinion for uncontroverted medical
opinion evidence.” Appellant’s Br. 3. He says that the uncontro-
verted medical opinion evidence showed that his PTSD and anxi-
ety caused at least moderate limitations in concentration; ability to
interact with others; and ability to maintain concentration, persis-
tence, or pace.4
4 Faison raises several other arguments for the first time on appeal, including
that the ALJ erred by (1) finding that he had mild limitations in his ability to
concentrate and engage in social functioning yet adopting a residual functional
capacity assessment that included no corresponding limitations, and (2) con-
cluding that he could perform his past work given his limitations in interacting
with others. We will not consider these issues because Faison raises them for
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8 Opinion of the Court 23-10654
But the ALJ’s decision reflects that she considered these
opinions and ultimately concluded that they were entitled to little
weight because they were inconsistent with Faison’s medical rec-
ords, which showed milder limitations. Substantial evidence sup-
ports this determination. The record reflects that Faison received
conservative treatment for his mental impairments and at times re-
ported experiencing no anxiety, no depression, and no decreased
functioning. In addition, his medical providers assigned GAF scores
that showed only mild mental health limitations.5 And during the
relevant period a VA examiner determined that Faison’s symptoms
did not satisfy the diagnostic criteria for PTSD. As a result, we can-
not say that the ALJ erred when she gave the opinion evidence little
weight and concluded that Faison’s mental health impairments
the first time on appeal. See United States v. Campbell, 26 F.4th 860, 871–72 (11th
Cir. 2022) (en banc).
5 The GAF is a numeric scale used to rate an individual’s overall level of func-
tioning. American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders 32–33 (4th ed. 2000). The DSM later abandoned the use
of GAF scoring, noting “its conceptual lack of clarity” and “questionable psy-
chometrics in routine practice.” American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders 16 (5th ed. 2013) (“DSM-V”). After
the DSM-V was published, the Social Security Administration issued a di-
rective to ALJs instructing them to consider GAF scores as medical opinion
evidence but emphasizing that they should not be considered in isolation be-
cause a GAF score is a snapshot about a person’s level of functioning. Soc. Sec.
Admin., Administrative Message 13066 (July 22, 2013).
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23-10654 Opinion of the Court 9
caused no more than minimal limitations.6 In reaching this result,
we emphasize that given our deferential standard of review, “we
must affirm if the [ALJ’s] decision is supported by substantial evi-
dence” and are not addressing whether we would have reached a
different result in weighing the conflicting evidence. See Barnes,
932 F.2d at 1358.
Faison also argues that the ALJ erred in assessing his residual
functional capacity because her decision conflicted with the VA’s
disability ratings. But the decision of another governmental
agency, based on the rules of that agency, does not bind an ALJ
considering whether the claimant was disabled for purposes of So-
cial Security benefits. See 20 C.F.R. § 404.1504 (2016) (“A decision
by . . . any other governmental agency about whether you are dis-
abled . . . is based on its rules and is not our decision . . . [and] is not
binding on us.”). We have held that an ALJ is not required to follow
a VA decision finding a claimant disabled so long as the “ALJ’s de-
cision shows that she considered the other agency’s decision” and
“substantial evidence in the record supports the ALJ’s decision to
depart from the other agency’s decision.” Noble v. Comm’r of Soc.
Sec., 963 F.3d 1317, 1330 (11th Cir. 2020). Here, the ALJ gave ade-
quate consideration to the VA’s disability determinations. The
6 Faison also suggests that the ALJ erred because she failed “to explicitly con-
sider [his] mental impairments when assessing” his residual functional capac-
ity. Appellant’s Br. 12 (internal quotation marks omitted). We disagree. The
ALJ’s decision reflects that she did consider Faison’s mental impairments when
assessing his residual functional capacity and concluded that the impairments
“cause[d] no more than minimal limitations.” Doc. 8-18 at 25.
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10 Opinion of the Court 23-10654
ALJ’s decision showed that she considered the VA decisions. And
for the reasons given above, we conclude that substantial evidence
supported the ALJ’s decision to depart from the VA’s ratings when
assessing Faison’s limitations.
Accordingly, we affirm the Commissioner’s decision.
AFFIRMED.
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