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Shannon v. Berryhill

United States District Court, S.D. Georgia, Savannah Division

February 1, 2019

Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 16), to which objections have been filed (Doc. 17) . After a careful review of the record, the Court does not fully concur with the Magistrate Judge's Report and Recommendation, which recommends that this Court affirm the decision of the Social Security Commissioner ("the Commissioner") and, therefore, the Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the Magistrate Judge's report and recommendation. The Court ADOPTS IN PART that portion of the Report and Recommendation which found that the ALJ's treatment of Ms. Farnum's opinion was harmless error, that the ALJ did not err in his treatment of Dr. Eaton's opinion, and that the ALJ did not err in his treatment of Plaintiff's post-date-last-insured medical records. (Doc. 16 at 7-13.) However, the Court DECLINES TO ADOPT the portion of the Magistrate Judge's report and recommendation that found the misstatement of Plaintiff's GAF score from Dr. Eisenberg was harmless error and does not require remand. Accordingly, this case is REVERSED and REMANDED to the Social Security Administration for further consideration. The reasons for the Court's decision are set forth below.



         Judicial review of social security cases is limited to the question of whether the agency's factual findings are supported by "substantial evidence" and whether the correct legal standards were applied. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). Substantial evidence is something "more than a mere scintilla, but less than a preponderance." Dyer, 395 F.3d at 1210. If a decision is supported by substantial evidence, a reviewing court must affirm the decision "even if the proof preponderates against it." Id. (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)).

         The ALJ's legal conclusions, however, are reviewed de novo. Davis v. Shalala, 985 F.2d 528 (11th Cir. 1993). "If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, the ALJ's decision must be reversed." Lewis v. Berryhill, No. 2:16-CV-181-VEH, 2017 WL 1132734, at *1 (N.D. Ala. Mar. 27, 2017) (citing Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)).


         After consideration of the record, the ALJ made the following findings: (1) Plaintiff last met the insured status requirement of the Social Security Act on September 30, 2010 (R. 26)[1], (2) Plaintiff did not engage in substantial gainful activity during the period from his alleged onset date of October 3, 2009 through his date last insured of September 30, 2010 (id.), (3) through the date last insured, Plaintiff had the following severe impairment: anxiety disorder, NOS (20 CFR 404.1520 (c)) (id.), (4) through the date of last insured, the Plaintiff did not have an impairment or combined impairment that met a listed impairment (id.). The ALJ also determined that Plaintiff had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels with the nonexertional limitations of avoiding ordinary hazards, performing simple routine and repetitive tasks but not at production rate pace, and could have occasional interaction with co-workers, supervisors, and the public (R. 27.) and that, through the date of last insured, Plaintiff could not perform any past relevant work (R. 34.). Accordingly, the ALJ found that Plaintiff was not under a disability at any time from October 3, 2009, the alleged onset date, through September 30, 2010, the date last insured. (R. 36.)


         A. The ALJ' s Misstatement of the GAF Score

         The report and recommendation found that the misstatement by the ALJ of the Global Assessment of Functionality ("GAF") score that Dr. Eisenberg assessed Plaintiff was ultimately harmless. (Doc. 16 at 6.) In his objections, Plaintiff disagrees and argues that the misstatement of the GAF score requires a remand because "Dr. Eisenberg's opinion of serious limitation does contradict the ALJ's findings that Shannon [Plaintiff] only had mild limitations which is why he found Shannon [Plaintiff] unable to work." (Doc. 17 at 3.) Plaintiff argues that while a misstatement of facts in some cases may be harmless error because they did not affect the ALJ's ultimate conclusion, this case is not one of those. (Id. at 3-4) . The Court agrees for the reasons that follow and declines to adopt the report and recommendation on this issue.

         First, the Court notes that it is not simply the GAF score that the ALJ misstated in this case. The AL J's decision contains numerous factual errors, such as misattributed diagnoses, GAF scores, and other information from the medical opinion evidence that was used by the ALJ to make his determination of Plaintiff's RFC. These errors raise a significant question about whether Dr. Eisenberg's opinion was considered by the ALJ.

         The ALJ states that Plaintiff first presented to Gateway Behavioral Health Services ("Gateway") on August 24, 2010 and was seen by a licensed professional counselor ("LPC") (Jo L. Miller) regarding his symptoms of PTSD and bipolar disorder. (R. 30.) In that same paragraph, the ALJ goes on to state that Plaintiff then presented on September 20, 2010 with Dr. Eisenberg and that "Dr. Eisenberg noted claimant attended church and had friends and diagnosed claimant with PTSD, biplar [sic] disorder and rated claimant with a GAF score of 65, proscribing Prozac for his anxiety and antidepressant and Seroquel for anxiety/insomnia." (Id.) Elsewhere, the ALJ states again that Plaintiff was seen in August 2010 by "a medically- acceptable source and received a diagnosis from this doctor of PTSD, bipolar [sic] disorder, and assessed a GAF score of 65 (indicating no more than 'mild' problems)." (R. 32.)

         This is a misstatement of the evidence. The evidence does show that Plaintiff was first seen at Gateway by LPC Jo Miller on August 24, 2010, and was diagnosed with "PTSD and bi-polar D/O." However, Dr. Eisenberg's report diagnosed Plaintiff with PTSD and MDD, not PTSD and bipolar disorder (R. 374), assessed a GAF score of 42, not 65 (R. ...

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