JoAnn Thornton v. Commissioner, Social Security Administration , 597 F. App'x 604 ( 2015 )

Case: 13-15165 Date Filed: 02/11/2015 Page: 1 of 23
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15165
________________________
D.C. Docket No. 3:12-cv-00101-CDL
JOANN THORNTON,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(February 11, 2015)
Before MARTIN and ANDERSON, Circuit Judges, and COTE, * District Judge.
*
Honorable Denise Cote, United States District Judge for the Southern District of New York,
sitting by designation.
Case: 13-15165 Date Filed: 02/11/2015 Page: 2 of 23
PER CURIAM:
Joann Thornton (“Thornton”) appeals the district court’s order affirming the
denial of disability insurance benefits (“DIB”) and supplemental security income
(“SSI”), pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), by the Commissioner of
Social Security (“Commissioner”). We affirm the district court’s decision.
I. BACKGROUND
In the summer of 2007, Thornton filed applications for DIB and SSI,
alleging a disability commencing on September 1, 2005 due to fibromyalgia,
arthritis, hypertension, and bipolar disorder. At the time of her application,
Thornton was 41 years old and had not worked since September 1, 2005. For the
six years preceding September 1, 2005, Thornton had worked as a clerk/cashier at
a discount department store.
Dr. George Ude (“Ude”) completed a psychiatric review technique (“PRT”) 1
for Thornton on September 21, 2007. Ude indicated that Thornton had “bipolar
syndrome with a history of episodic periods manifested by the full symptomatic
picture of both manic and depressive syndromes,” as well as a medically
determinable impairment of anxiety. Ude also noted that Thornton had moderate
difficulties in maintaining social functioning, and mild difficulties in maintaining
1
A psychiatric review technique is a special evaluation used in the disability application process
to assess the severity of mental impairments. See 20 C.F.R. §§ 404.1520a, 416.920a; SSR 96-
8p, 1996 WL 374184 at *4 (July 2, 1996).
2
Case: 13-15165 Date Filed: 02/11/2015 Page: 3 of 23
concentration, persistence, or pace. Ude did not find that Thornton had any
limitations in her ability to understand, remember, and carry out simple or detailed
instructions. Ude concluded that Thornton “would not be able to deal with the
public in frequent or in depth interactions” and “will have interpersonal
difficulties,” but that these limits were “not substantial” and “would not preclude
[her from] working with other employees.”
The Commissioner denied Thornton’s applications on September 26, 2007,
and again on reconsideration on February 20, 2008. On March 21, 2008, Thornton
requested a hearing before an ALJ. The hearing was held on January 7, 2010. The
evidence at the hearing included testimony from Thornton and John Blakeman, a
VE, as well as medical records.
A second PRT, completed by Dr. Steve O’Hagan (“O’Hagan”) on February
15, 2008, was considered at the hearing. In this report, O’Hagan indicated that
Thornton had a medically determinable impairment of depression, as well as
“moderate difficulties maintaining concentration, persistence, or pace.” O’Hagan
indicated that Thornton also had moderate limitations in her ability to understand,
remember, and carry out detailed instructions, and to maintain concentration for
extended periods. He concluded, however, that her ability to understand,
remember, and carry out simple instructions was not significantly limited and her
concentration was adequate for basic activities.
3
Case: 13-15165 Date Filed: 02/11/2015 Page: 4 of 23
At the ALJ hearing, the VE testified as to the existence of jobs in the
national economy for the claimant in response to a hypothetical posed by the ALJ.
The ALJ asked the VE to assume that the claimant is 44 years old, possesses a
GED, and has worked in the past as a cashier/checker and stocker. It was assumed
that neither job provided any transferrable skills. The ALJ also asked the VE to
assume that the claimant could perform “medium work” 2 but is restricted from
frequent or repetitive stooping, crouching, kneeling, crawling, or climbing, and is
further limited to “simple, non-detailed tasks” that did not involve dealing with the
public or cooperative efforts with coworkers. The VE testified that jobs existed for
an individual with the aforementioned limitations in the national and regional
economy. 3 The jobs identified by the VE included commercial or institutional
cleaner, motel cleaner, packer, laundry sorter, small item sorter, and ticket seller.
At the hearing, Thornton advised the ALJ that she was scheduled to be seen
within a few days at a mental health clinic. On January 11 2010, Dr. J. D. Hubbard
(“Hubbard”), a psychiatrist, completed an assessment of Thornton. Based on his
interview with Thornton on that day, and what he described as incomplete medical
2
Medium work is defined as work that “involves lifting no more lifting no more than 50 pounds
at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. §§
404.1567(c), 416.967(c). If an individual can perform medium work, she can also do sedentary
and light work. Id.
3
In total, the VE estimated that there were over 100,000 jobs in the regional economy, and over
4.5 million jobs in the national economy for a person with the hypothetical limitations described
by the ALJ.
4
Case: 13-15165 Date Filed: 02/11/2015 Page: 5 of 23
records, Hubbard found that “she is not employable.” He found Thornton
“agitated, tearful [and] angry,” noting that “in this state [she] could not be expected
to work.” Hubbard checked each of the eight boxes related to an individual’s
ability to make an occupational adjustment and in each classified Thornton as
having “Poor/No[]” skills, which was the most impaired category on the form.
These eight categories included the ability to relate to coworkers, interact with
supervisors, deal with the public, and maintain attention/concentration. Hubbard
gave Thornton a Global Assessment of Functionality (“GAF”) score of 41,4 and
prescribed medication and treatment. Hubbard saw Thornton again on January 26.
Hubbard noted that the medication she had started taking following the January 11
appointment had not resulted in increased mood stabilization and recommended
increasing the dosage.
In response to a request from Thornton’s counsel, Dr. Justin Huthwaite
(“Huthwaite”), a clinical psychologist and consultative examiner for the Social
Security Administration (“SSA”), completed a psychological evaluation of
Thornton on April 16, 2010. Huthwaite assessed Thornton’s IQ as 66, which is in
the mildly mentally retarded range. Huthwaite’s diagnostic impressions of
Thornton included major depressive disorder and borderline intellectual
4
A GAF score is a subjective determination that represents “the clinician’s judgment of the
individual’s overall level of functioning.” Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 32 (4th ed., Text Revision 2000).
5
Case: 13-15165 Date Filed: 02/11/2015 Page: 6 of 23
functioning. Huthwaite concluded that Thornton could follow simple instructions,
but would experience difficulties following more complex instructions. Huthwaite
expected that if she were employed, Thornton would work at a slightly reduced
pace, but noted that she is likely to be able to persist with tasks. Huthwaite also
recommended intermittent supervision of Thornton at work.
In an opinion issued on June 7, 2010, the ALJ concluded that Thornton was
not disabled from September 1, 2005 through June 7, 2010, as defined by the
Social Security Act, employing the five-step sequential evaluation process set out
in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). With respect to the first three
steps of the sequential evaluation process, the ALJ concluded that (1) Thornton had
not engaged in substantial gainful activity since September 1, 2005; (2) she had
severe impairments of arthralgia/fibromyalgia, major depressive disorder,
hypertension, borderline intellectual function, and a history of polysubstance abuse
in sustained full remission; and (3) her physical and mental impairments did not
meet or medically equal a listed impairment.
In determining that her mental impairments did not rise to the level of a
listed impairment, the ALJ discussed in detail the medical evidence related to
Thornton’s mental impairments, including her history of depression and bipolar
disease, which affected her ability to interact with others. The ALJ recognized that
Hubbard had assigned Thornton a GAF score of 41, rated her as having “poor-to-
6
Case: 13-15165 Date Filed: 02/11/2015 Page: 7 of 23
no capacities” in almost all vocational areas, and concluded that she was unable to
work. In a footnote, the ALJ noted that GAF scores do not necessarily reflect an
ability to work as there is no correlation between GAF scores and disability. The
ALJ observed that Thornton’s condition appeared to have been worsened in
January 2010, both during the hearing and Hubbard’s examination, because a
significant relationship in Thornton’s life had ended in September 2009 and she
had discontinued taking her medications. By April 2010, however, when she was
examined by Huthwaite, she was back on medication and participating in mental
health therapy. As a result, the ALJ concluded that her residual functional capacity
(“RFC”) had returned to its September 2009 baseline.5
At the fourth step in the evaluation process, the ALJ concluded that
Thornton was unable to perform any prior work, but had the RFC to perform
“medium work” with some limitations—specifically, that she could not frequently
or repetitively stoop, crouch, crawl, or climb. As a further restriction, the ALJ
added that Thornton was limited to simple, non-detailed tasks without public
interaction or cooperation with co-workers.
At step five, the ALJ concluded that, based on the VE’s testimony, work
meeting these limitations existed in significant numbers in the national economy.
Because Thornton was capable of making an adjustment to other jobs that existed
5
An RFC is an administrative assessment of the extent to which an individual’s impairments
may affect her capacity to do work. 20 C.F.R. §§ 404.1545, 416.945; SSR 96-8p at *2.
7
Case: 13-15165 Date Filed: 02/11/2015 Page: 8 of 23
in significant numbers in the national economy, the ALJ found that Thornton was
not disabled.
Thornton timely appealed the ALJ’s decision to the Appeals Council. In
support of her appeal, Thornton submitted an evaluation conducted by Dr. Harvey
Gayer (“Gayer”) on December 6, 2010. Thornton argued that Gayer’s evaluation
constituted new medical evidence corroborating Hubbard’s conclusions regarding
her inability to work. The Appeals Council did not add Gayer’s evaluation to the
administrative record. On June 7, 2012, the Appeals Council denied Thornton’s
request for review.
On August 7, 2012, Thornton timely sought district court review of the
ALJ’s decision. In a report and recommendation issued on August 23, 2013, the
magistrate judge found that Thornton’s inability to cooperate with coworkers did
not render her disabled, the hypothetical the ALJ posed to the VE was complete,
the ALJ had correctly noted the lack of correlation between a GAF score and a
disability determination, and the Appeals Council did not err in denying review of
or in refusing to consider Gayer’s evaluation. On September 11, 2013, over
Thornton’s objections, the district court adopted the magistrate judge’s report
affirming the ALJ’s decision. This appeal followed.
8
Case: 13-15165 Date Filed: 02/11/2015 Page: 9 of 23
II. DISCUSSION
In Social Security appeals, we review the decision of an ALJ as the final
decision by the Commissioner when the ALJ denies benefits and the Appeals
Council denies review of the ALJ’s decision. Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001). “We review the Commissioner’s decision to determine if it
is supported by substantial evidence and based on proper legal standards.”
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per
curiam) (citation omitted); see also 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . .”). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Crawford, 363 F.3d at 1158 (citation omitted). “We may
not decide facts anew, reweigh the evidence, or substitute our judgment for that of
the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(citation omitted). “Even if the evidence preponderates against the Commissioner's
factual findings, we must affirm if the decision reached is supported by substantial
evidence.” Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir.
2007) (citation omitted). “[W]e review de novo the Commissioner’s conclusions
of law.” Id.
9
Case: 13-15165 Date Filed: 02/11/2015 Page: 10 of 23
Eligibility for DIB and SSI requires that the claimant be disabled. 42 U.S.C.
§§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if she is unable “to engage
in any substantial gainful activity by reason of a medically determinable physical
or mental impairment . . . 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),
1382c(a)(3)(A). In order to determine whether a claimant is disabled, the
Commissioner applies a five-step sequential evaluation. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999).
At the first step, the claimant must prove that she has not engaged in
substantial gainful activity. At the second step, she must prove that
she has a severe impairment or combination of impairments. If, at the
third step, she proves that her impairment or combination of
impairments meets or equals a listed impairment, she is automatically
found disabled regardless of age, education, or work experience. If
she cannot prevail at the third step, she must proceed to the fourth step
where she must prove that she is unable to perform her past relevant
work. At the fifth step, the burden shifts to the Commissioner to
determine if there is other work available in significant numbers in the
national economy that the claimant is able to perform. If the
Commissioner can demonstrate that there are jobs the claimant can
perform, the claimant must prove she is unable to perform those jobs
in order to be found disabled.
Jones, 190 F.3d at 1228 (citations omitted).
In bringing this appeal, Thornton has relied on several Social Security
Rulings (“SSR”). SSRs are “agency rulings published under the authority of the
Commissioner of Social Security and are binding on all components of the
10
Case: 13-15165 Date Filed: 02/11/2015 Page: 11 of 23
Administration.” Sullivan v. Zebley, 493 U.S. 521, 530 n.9 (1990) (citation
omitted). SSRs “do not have the force and effect of the law or regulations but are
to be relied upon as precedents in determining other cases where the facts are
basically the same.” Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984). Although
SSRs are not binding on this court, we accord the rulings deference. Fair v.
Shalala, 37 F.3d 1466, 1469 (11th Cir. 1994).
Thornton has appealed from the Commissioner’s denial of her claim for
benefits on four grounds. She contends that all unskilled work requires the ability
to cooperate with co-workers, and, because the ALJ found that she was unable to
do this, she is disabled as a matter of law. Thornton also contends that the
hypothetical given to the VE was inadequate. Thornton further argues that the ALJ
was required to consider her GAF scores in determining whether she was disabled.
Finally, Thornton contends that the Appeals Council erred by not adding Gayer’s
post-decision evaluation to the administrative record. None of these issues
requires a reversal or remand.
A. Ability to Cooperate with Coworkers
Thornton contends that the Commissioner was required to find her disabled
because the Commissioner did not meet his burden at the fifth step in the
sequential evaluation process. At the fifth step in the sequential process, the
Commissioner must establish that significant numbers of jobs exist in the national
11
Case: 13-15165 Date Filed: 02/11/2015 Page: 12 of 23
economy that the claimant can perform. Jones, 190 F.3d at 1228 (citation
omitted); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner
may show through the testimony of a VE that such jobs exist. Winschel v.
Commissioner of Social Security, 631 F.3d 1176, 1180 (11th Cir. 2011).
The ALJ concluded Thornton was unable to cooperate with co-workers, and
described her as a person with a “long history” of depression or bipolar condition
that has “long affected her ability to deal with others.” In the hypothetical he
posed to the VE, he asked to VE to assume that Thornton could not perform tasks
that involved “cooperative efforts with co-workers.” Relying on SSRs 85-15, 1985
WL 56857 (Jan. 1, 1985), 96-8p, and 96-9p, 1996 WL 347185 (July 2, 1996),
Thornton contends that the Commissioner has determined that cooperation with
co-workers is required for all work. 6 Citing SSR 00-4p, 2000 WL 1898704 (Dec.
4, 2000), Thornton argues that, because the VE’s testimony conflicts with SSRs
85-15, 96-8p, and 96-p, the Commissioner cannot rely upon it at step five in the
sequential evaluation process.
The SSRs cited by Thornton do not require the Commissioner to find that a
claimant is disabled when the claimant is unable to cooperate with co-workers.
While SSRs 85-15 and 96-9p each recognize that unskilled work generally requires
6
The Commissioner contends that SSRs 85-15 and 96-9p do not apply to Thornton’s case. We
assume, without deciding, that the SSRs cited by Thornton apply to her case. We further assume
for the purposes of this appeal that Thornton lacks the ability to “respond appropriately to co-
workers” because she cannot cooperate with co-workers.
12
Case: 13-15165 Date Filed: 02/11/2015 Page: 13 of 23
the ability to “respond appropriately to supervision, coworkers, and usual work
situations,” SSR 85-15 at *4; SSR 96-9p at *9, they do not command a finding of
disability in the absence of such ability. See SSR 85-15 at *4 (noting that a
substantial loss of the ability to “respond[] appropriately to supervision, coworkers,
and usual work situations” would justify, but not require, a finding of disability);
SSR 96-9p at *9 (same); see also SSR 96-8p (recognizing that “competitive,
remunerative work” generally requires the ability to respond appropriately to co-
workers). Indeed, the SSRs themselves recognize that any finding of disability
must be “based on the principles in the appropriate sections of the regulations,
giving consideration to the rules for specific case situations . . . .” SSR 85-15 at
*1; see also SSR 96-9p at *9. Furthermore, SSR 96-9p specifically recommends
consulting a VE when an individual is limited in a basic work activity such as the
ability to respond appropriately to co-workers. Id. Contrary to Thornton’s
argument before the district court and on appeal, the fact that a finding of disability
may be justified does not mean that a finding of disability is required. Because
there was no conflict with underlying Social Security policies, the Commissioner
was entitled to rely on the VE’s testimony at step five of the sequential evaluation
process. Thus, the ALJ did not err in finding that Thornton was not disabled after
concluding that she could not cooperate with coworkers.
13
Case: 13-15165 Date Filed: 02/11/2015 Page: 14 of 23
B. The Hypothetical Question Posed to the VE
Thornton next argues that the ALJ’s decision was not supported by
substantial evidence because the hypothetical presented to the VE was incomplete.
In order for a VE’s testimony to constitute substantial evidence in support of a
finding that there is sufficient work available in the economy that the claimant can
perform at the fifth step in the sequential evaluation process, the ALJ must pose a
hypothetical question to the VE “which comprises all of the claimant’s
impairments.” Winschel, 631 F.3d at 1180 (citation omitted). Thornton argues
that the hypothetical was incomplete because it did not specifically refer to her
limitations in concentration, persistence, and pace or Huthwaite’s recommendation
that there be intermittent supervision of her work. The failure to include either
limitation in the hypothetical did not render it incomplete.
In Winschel, we observed that “when medical evidence demonstrates that a
claimant can engage in simple, routine tasks or unskilled work despite limitations
in concentration, persistence, and pace, courts have concluded that limiting the
hypothetical to include only unskilled work sufficiently accounts for such
limitations.” Id. at 1180. Nonetheless, in Winschel we concluded that the VE’s
testimony did not constitute substantial evidence to support the ALJ’s decision at
step five of the process. Id. at 1181. In that case, the ALJ did not indicate that
medical evidence suggested that the plaintiff’s ability to work was unaffected by
14
Case: 13-15165 Date Filed: 02/11/2015 Page: 15 of 23
his concentration, persistence, and pace limitations. Id. Nor did the ALJ otherwise
implicitly account for the limitation in the hypothetical question. Id.
Here, unlike in Winschel, the ALJ determined that the evidence
demonstrated that Thornton could engage in simple, non-detailed tasks, despite
“moderate” limitations in concentration, persistence, and pace.7 The hypothetical
the ALJ posed specified that the VE should assume that Thornton could only
perform “simple, non-detailed tasks.” There was substantial evidence to support
this determination. O’Hagan found that Thornton could understand, remember,
and carry out simple instructions. He noted that Thornton had a moderate
limitation in her ability to sustain concentration for extended periods, that this
limitation was not substantial and her concentration was adequate for basic
activities, that she could sustain attention for two-hour segments, and that all other
aspects of concentration and persistence were intact. Huthwaite indicated that
Thornton appeared capable of performing simple tasks without difficulty, but that
she may experience difficulty following more complex instructions. He noted that,
if employed, Thornton would be expected to work at a slightly reduced pace, but
that she was likely to persist with work-related tasks. The ALJ also adequately
7
In completing their evaluations of Thornton, Ude, O’Hagan, and Huthwaite determined that
Thornton had—at most—only moderate limitations in maintaining concentration, persistence,
and pace. The PRT form classifies impairments to limitations in maintaining concentration,
persistence, or pace as mild, moderate, marked, or extreme. A marked or extreme impairment
will be considered at the third step in the sequential process when determining whether the
claimant’s mental impairment meets or medically equals an impairment listed in Appendix A.
20 C.F.R. §§ 404, Subpt. P, App. 1, 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
15
Case: 13-15165 Date Filed: 02/11/2015 Page: 16 of 23
accounted for Hubbard’s assessment, which found that in January 2010, Thornton
lacked the ability to engage in even simple tasks. Based on these considerations,
the ALJ properly determined that Thornton could perform simple, non-detailed
tasks despite her moderate limitations in maintaining concentration, persistence,
and pace. Therefore, the ALJ’s hypothetical was not deficient because it did not
specifically refer to Thornton’s limitations in maintaining concentration,
persistence, and pace.
Likewise, Thornton’s argument that the hypothetical to the VE was
incomplete because the ALJ failed to include any reference to Thornton’s need for
intermittent supervision is without merit. In assessing Thornton’s ability to work,
Huthwaite indicated that intermittent supervision was “recommended.” He did not
indicate that intermittent supervision was required as opposed to merely
recommended. Nor did he explain what intermittent supervision would entail, or
proffer a rationale for his recommendation. Nothing in Huthwaite’s evaluation
indicates that this recommendation meant that Thornton had a specific limitation as
to supervision that should have been explicitly or implicitly included in the ALJ’s
RFC and in the hypothetical presented to the VE. Thornton offers nothing more
than her own opinion that Huthwaite’s observation about the desirability of
intermittent supervision means that she requires more than normal supervision.
16
Case: 13-15165 Date Filed: 02/11/2015 Page: 17 of 23
Moreover, contrary to Thornton’s argument on appeal, SSR 85-15 does not
provide that an individual who cannot work without normal supervision is
disabled. Instead, SSR 85-15 merely acknowledges that unskilled work generally
involves some supervision. See SSR 85-15 at *4 (noting that one of the basic
mental demands of unskilled work is the ability to respond appropriately to
supervision). Accordingly, the ALJ’s hypothetical to the VE adequately accounted
for Thornton’s limitations. Because the hypothetical is not incomplete, the VE’s
testimony constitutes substantial evidence supporting the ALJ’s finding that the
Commissioner met its burden in showing that there was work in the national
economy that the claimant could perform. See Winschel, 631 F.3d at 1180–81.
C. Consideration of GAF Scores
Thornton next argues that the ALJ erred by failing to evaluate one of her
GAF scores from May 2006 in formulating her RFC and by observing that there is
“no correlation” between GAF scores and a finding of disability. The RFC is an
assessment of the extent to which a claimant’s impairments may affect her capacity
to work. 20 C.F.R. §§ 404.1545 (a)(5), 416.945(a)(5). The RFC evaluation is used
in the fourth and fifth steps of the sequential process to determine whether the
claimant can perform past work and, if not, whether the claimant can perform other
work in the national economy. Id. While the RFC assessment “must be based on
all of the relevant evidence in the case record,” SSR 96-8p at *5, GAF scores are
17
Case: 13-15165 Date Filed: 02/11/2015 Page: 18 of 23
not sufficiently pertinent to the ability of an individual to work to require an ALJ to
list every GAF score that appears in the medical records. The relevant inquiry is
whether there is substantial evidence to support the Commissioner’s finding.
A GAF score is a subjective determination that represents “the clinician’s
judgment of the individual’s overall level of functioning.” Am. Psychiatric Ass’n,
supra, at 32. The GAF scale accounts for psychological, social, and occupational
limitations, but not environmental or physical impairments. Id. GAF scores
between 41 and 50 indicate serious symptoms. Id. at 34. The Commissioner has
concluded, however, that the GAF scale “does not have a direct correlation to the
severity requirements in [the] mental disorders listings.” Revised Medical Criteria
for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746,
50764–65 (Aug. 21, 2000). As the Sixth Circuit has observed, GAF scores may be
helpful in formulating a claimant’s RFC, but are not essential to the RFC’s
accuracy, and an ALJ’s failure to describe GAF scores does not render the ALJ’s
RFC assessment inaccurate. Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241
(6th Cir. 2002). Similarly, the Eighth Circuit has recognized that a GAF score may
have little or no bearing on a claimant’s social and occupational functioning. Jones
v. Astrue, 619 F.3d 963, 973 (8th Cir. 2010). Here, the ALJ’s decision was
supported by substantial evidence even though the ALJ did not refer to each of
Thornton’s GAF scores.
18
Case: 13-15165 Date Filed: 02/11/2015 Page: 19 of 23
In a footnote, the ALJ explained that a GAF score does not necessarily
reflect a person’s ability to work and, citing the Federal Register, added that there
is “no correlation” between GAF score and a disability. The section of the Federal
Register provides: “[The GAF Scale] does not have a direct correlation to the
severity requirements in [the SSA’s] mental disorders listings.” 65 Fed. Reg.
50746, 50764–65. Although the ALJ’s description of the passage in the Federal
Register was an overstatement, that overstatement does not require either a reversal
or a remand. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying
the harmless error doctrine to a Social Security appeal). The ALJ correctly noted
that the GAF scores do not necessarily reflect a person’s ability to do work.
Additionally, the ALJ’s decision reflects that he did consider with care the various
medical providers’ evaluations and discussions of Thornton’s symptoms and
limitations. Therefore, the ALJ did not err in failing to discuss all of Thornton’s
GAF scores, and the RFC assessment is supported by substantial evidence.
D. New Evidence Before the Appeals Council
Finally, Thornton argues that the Appeals Council erred in refusing to add
Gayer’s December 2010 psychiatric evaluation of Thornton to the administrative
record. A claimant is generally permitted to “present new evidence at each stage
of [the] administrative process.” Ingram, 496 F.3d at 1261 (citation omitted). The
Appeals Council is required under the relevant regulations to consider evidence
19
Case: 13-15165 Date Filed: 02/11/2015 Page: 20 of 23
that relates to the period on or before the date of the ALJ decision. 20 C.F.R. §§
404.976(b)(1), 416.1476(b)(1). Evidence that postdates that period, however, is to
be returned to the claimant. Id. We review de novo a district court’s decision
regarding the necessity of a remand to the Commissioner based on new evidence.
Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001).
Gayer evaluated Thornton on December 6, 2010, six months after the ALJ
issued his decision. Gayer found, among other things, that Thornton was suffering
from a major depressive disorder, that her IQ score was borderline, and that her
GAF score was 50. Thornton argues that Gayer’s evaluation indicates that the ALJ
erred in concluding that Thornton had improved between January 2010, when
Hubbard found Thornton to be unable to work, and April 2010, when Huthwaite
examined Thornton.
Where a claimant seeks review of the Commissioner’s final decision, the
district court has two methods—each addressing a different problem—for
remanding a case back to the Commissioner under 42 U.S.C. § 405(g). Ingram,
496 F.3d at 1261. The first method, known as a sentence-four remand, is “based
upon a determination that the Commissioner erred in some respect in reaching the
decision to deny benefits.” Jackson v. Chater, 99 F.3d 1086, 1095 (11th Cir.
1996). A sentence-four remand is applicable when evidence was properly before
the Commissioner, but “the Appeals Council did not adequately consider the
20
Case: 13-15165 Date Filed: 02/11/2015 Page: 21 of 23
additional evidence.” Ingram, 496 F.3d at 1268 (citation omitted). A sentence
four remand is warranted only where the Commissioner’s decision was not
supported by substantial evidence or where the Commissioner or ALJ incorrectly
applied the relevant law. Moore v. Barnhart, 405 F.3d 1208, 1210 n.2 (11th Cir.
2005) (per curiam).
The second method, a sentence-six remand, is not based on error, but rather
is available if new, material evidence becomes available to a claimant, and the
claimant could not have presented that evidence during the administrative
proceeding. Ingram, 496 F.3d at 1267; Jackson, 99 F.3d at 1095. Material
evidence is both “relevant and probative,” creating “a reasonable possibility that it
would change the administrative result.” Vega, 265 F.3d at 1218. Such evidence
must be noncumulative. Id. For new evidence to be relevant, it must relate to the
time period on or before the date of the ALJ’s decision. See Wilson v. Apfel, 179
F.3d 1276, 1279 (11th Cir. 1999) (per curiam) (a doctor’s opinion given one year
after the ALJ’s decision was not probative as to any issue on appeal); cf. 20 C.F.R.
§§ 404.970(b), 416.1470(b) (“If new and material evidence is submitted, the
Appeals Council shall consider the additional evidence only where it relates to the
period on or before the date of the [ALJ] hearing decision.”) (emphasis added).
Evidence of deterioration of a previously-considered condition may subsequently
entitle a claimant to benefits from a new application, but it is not relevant to the
21
Case: 13-15165 Date Filed: 02/11/2015 Page: 22 of 23
issue of disability during the specific period under review. See Wilson, 179 F.3d at
1279 n.5. The district court is not authorized by sentence six “to remand for
reconsideration of evidence previously considered by the Appeals Council.”
Ingram, 496 F.3d at 1269.
Regardless of which part of Section 405(g) applies, the district court did not
err in refusing to remand Thornton’s case. The district court correctly refused to
remand Thornton’s case under sentence six because Gayer’s evaluation addressed
Thornton’s condition after the ALJ’s decision. See Wilson, 179 F.3d at 1279.
Gayer’s evaluation on December 6, 2010, describes Thornton’s conduct,
appearance, and behavior at the evaluation, and explicitly notes that the evaluation
is of Thornton’s current functioning. At most, Gayer’s evaluation shows that
Thornton’s condition had deteriorated since the ALJ issued his decision, which
does not warrant a remand. See Wilson, 179 F.3d at 1278–79.
Likewise, the district court did not err in refusing to remand under sentence
four because Gayer’s evaluation did not show that the Commissioner’s decision
was not supported by substantial evidence or resulted from an incorrect application
of the law. Because the evaluation relates to Thornton’s condition following the
ALJ’s decision, it is not relevant to the question of the whether the
Commissioner’s decision was supported by substantial evidence. Furthermore, the
decision not to consider the evidence was not contrary to law. The regulations do
22
Case: 13-15165 Date Filed: 02/11/2015 Page: 23 of 23
not require the Appeals Council to consider evidence that postdates the ALJ’s
decision, and in fact direct the Appeals Council to return such evidence to the
claimant. 20 C.F.R. §§ 404.976(b)(1), 416.1476(b)(1). Accordingly, the district
court did not err in refusing to remand the case under sentence four.
III. CONCLUSION
We have considered the other arguments raised by Thornton and find them
to be without merit.
AFFIRMED.
23