[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 25, 2006
No. 05-12997
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-02497-CV-JMF-1
LANIKIA MCCLOUD,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Commissioner of Social Security,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 25, 2006)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Lanikia McCloud appeals the magistrate judge’s affirmance of the Social
Security Commissioner’s denial of Supplemental Security Income benefits. For
the reasons that follow, we affirm on several issues and reverse and remand on the
remaining issues.
I. Background
McCloud filed an application for Supplemental Security Income (“SSI”)
benefits on June 12, 2000, alleging that she had been disabled June 1, 1998. At the
time of her claim, McCloud was a twenty-three year old female with a GED and
past work experience as a cashier, telemarketer, and nursing assistant.
According to the disability report that she submitted with her claim,
McCloud reported that she was depressed and anxious. She also noted that she
suffered from ulcers and trichotillomania1 and that although her depression had
prevented her from working since July 1, 1999, she was uninterested in
rehabilitative services that could help her return to work. According to McCloud,
she lived with her four children and spent her days watching television, listening to
music, and cleaning and cooking. She could wash the dishes and shop for
1
The DSM-IV diagnostic criteria for trichotillomania are: (1) recurrent pulling out of
one’s hair, resulting in noticeable hair loss, (2) an increasing sense of tension immediately before
pulling out the hair or when attempting to resist the behavior, (3) pleasure, gratification, or relief
when pulling out the hair, (4) the disturbance is not better accounted for by another mental
disorder and is not caused by a general medical condition (e.g., a dermatologic condition), and
(5) the disturbance causes clinically significant distress or impairment in social, occupational, or
other important areas of functioning. American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 609 (4th ed. 1994).
2
groceries, but otherwise would lie on the couch and drink alcohol. She explained
that she had anger problems and temper tantrums, snapped at people, and was
abused by her husband.
In December 1998, McCloud was admitted to St. Francis Hospital for
treatment for depression, alcohol use, and post-traumatic stress disorder. She
reported being raped twice that year and stated that she was “falling apart” and
experiencing tantrums. The staff noted that she experienced poor insight and
suicidal ideation. Her GAF score was 30.2 She received therapy and medications
for anxiety and depression. By discharge a week later, her GAF score was 45, and
she exhibited better insight, although she remained depressed. The staff at St.
Francis noted that she was clean and groomed, but anxious, stressed, restless, and
easily distracted and that her affect was restricted. They considered her to have an
extreme potential for dangerous behavior with a serious impairment to her ability
to function as reflected by the GAF score.
From April through June 2000, McCloud visited a shelter for battered
women. In May 2000, McCloud visited Presbyterian University Hospital for
depression and panic attacks. Her vital signs were normal, and she was alert and
2
The Global Assessment of Functioning, or GAF Scale, is a numeric scale that mental
health physicians and doctors use to rate the occupational, psychological, and social functioning
of adults. American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 32 (Text Revision, 4th ed. 2000).
3
oriented to time, place, and person. She was discharged from the hospital with
Paxil and Ativan and instructed to follow-up with the outpatient clinic. In June
2000, Dr. Edward Friedman of Western Psychiatric Institute examined McCloud.
She had a GAF score of 48 and reported that she had three different personalties.
She denied any suicidal ideation, but reported being very stressed, using alcohol,
and discontinuing use of Paxil without her doctor’s approval. Friedman noted that
McCloud was cooperative, but exhibited minimal eye contact and flat affect, with
poor concentration, sadness, dramatic behavior, and anxiety.
In August 2000, Dr. T. David Newman, a consulting psychologist for
McCloud’s claim, evaluated McCloud. He listed her as suffering from depression,
anxiety, mood swings, borderline personality disorder, and trichotillomania, with a
history of sexual, drug, and alcohol abuse. McCloud denied suicidal ideation, and
Newman found that her claim of multiple personalities lacked credibility. He
noted that she had adequate hygiene and grooming, good eye contact, mild anxiety,
and was alert, cooperative, and responsive, but he noted mild limitations in her
range of affect and mild interference with concentration and memory. He believed
her speech was rational, relevant, and coherent. Newman found that McCloud was
capable of adjusting her behavior according to need but that she was not motivated
to do so and that she could handle day-to-day necessities of household and
4
parenting chores, but not for prolonged periods because of the highly stressful
circumstances. He further noted that she may tend to become periodically
overwhelmed by her mood state, anxiety, or both and that she had a marginal
ability to interact with others. Nevertheless, Newman concluded that McCloud had
good ability to follow work rules and use judgment and a fair to good ability to
relate to coworkers and the public, interact with supervisors, work independently,
and maintain concentration. McCloud could understand and execute simple
instructions or detailed – but not complex – instructions. Newman also found
slight limitations in activities of daily living, moderate limitations with maintaining
social function or regular attendance, and the ability to complete a normal work
week without psychological interruptions. He further found that McCloud
experienced one of two decompensations in work-like settings.
Dr. Roger Glover, a state agency psychologist, reviewed McCloud’s
information and determined that McCloud was alert and oriented and could care
for her own activities. Like Newman, Glover determined that McCloud had
moderate limitations with her ability to remember, understand, and execute
detailed instructions, moderate limitations in maintaining concentration, social
function, or regular attendance, and the ability to complete a normal work week
without psychological interruptions. He further found that McCloud had moderate
5
limitations in her ability to respond to changes in the workplace setting and to
make plans independently of others. According to Glover, McCloud was mentally
capable of performing routine work in a stable work setting.
McCloud’s claim for SSI benefits was denied initially, and she requested a
hearing before an administrative law judge (“ALJ”). In the paperwork that
accompanied the request and the notice of the hearing, the Commissioner advised
McCloud that she was entitled to representation. The Commissioner also enclosed
a leaflet with information and a list of groups that could assist with finding
representation. Additionally, McCloud received a letter advising her of her right to
representation; the text appeared in capital letters.
At the beginning of the SSI hearing on April 5, 2001, the ALJ noted that
McCloud did not have counsel or a representative and stated that he assumed that
she wanted to proceed without counsel. McCloud stated that she wanted to
proceed without counsel. McCloud testified that she was twenty-four years old
with a GED and past work experience as a cashier, telemarketer, and nursing
assistant. She explained that she had been unable to keep her previous jobs for
more than a few weeks because she had an anger problem, could not follow work
rules, was very sensitive, and cried easily. She stated that she could not deal with
people, had emotional problems, suffered from bad nerves, drank regularly, and
6
pulled out her hair because of stress. The ALJ called a vocational expert (“VE”) to
determine whether there were jobs available in significant numbers in the national
economy that McCloud could perform and asked the VE whether a person with
McCloud’s background and residual functioning capacity (“RFC”) could work.3
The VE stated no because all jobs require some ability to work with people and
McCloud testified that she was unable to deal with other people. The ALJ then
asked if his answer would change if the RFC were limited to low-stress work. The
VE testified that such a person could work in assembly, packing, and inspection
jobs. When the ALJ asked McCloud whether she wanted to question the VE,
McCloud explained that she did not know what to ask and reminded the ALJ of her
anger problems and her desire not to be around others. McCloud then suggested
that the ALJ may want to hear testimony from her husband, but the ALJ declined,
saying “[y]ou told us everything about your situation.”
The ALJ found that McCloud was not disabled because, although her mood
disorder and anxiety were severe, they did not meet or exceed a listing, as she did
not have “marked” limitations in two or more of the “B” categories. The ALJ
noted that he considered all her symptoms, including pain, and he noted that her
GAF score had been 30 at admission, which indicated a serious impairment, but
3
The regulations define RFC as “that which an individual is still able to do despite the
limitations caused by his or her impairments.” 20 C.F.R. § 404.1545(a).
7
was 45 at discharge, which was only “moderate.” The ALJ further considered that
McCloud had not received treatment in 1999 or 2000 until her May 2000 panic
attack. The ALJ found that McCloud’s testimony at the hearing lacked credibility
because of her failure to seek treatment or take her medications and her ability to
handle activities of daily living. Accordingly, the ALJ determined that McCloud
did not have physical limitations and could perform low-stress work.
McCloud initially requested review by the appeals council, and while the
claim was pending, she obtained counsel. Because of a pilot program, the appeals
council refused to hear the case but granted an extension to file a complaint in
district court. McCloud filed a complaint in district court and consented to the
jurisdiction of a magistrate judge. She raised many of the same claims she now
raises before this Court, and the magistrate judge affirmed the Commissioner’s
decision to deny benefits in its entirety.
II. Standard of Review
We review the Commissioner’s decision to determine whether substantial
evidence supports the decision and whether the Commissioner applied the correct
legal standards. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); Lewis
v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). We do not reweigh evidence or
substitute our judgment for that of the Commissioner, but review the entire record
8
to determine whether the decision is reasonable and supported by substantial
evidence. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991).
Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Hale v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987) (stating that substantial evidence is “‘more than a mere scintilla but less
than a preponderance’”).
III. Discussion
The Social Security regulations provide a five-step sequential evaluation
process for determining whether a claimant has proved that she is disabled. 20
C.F.R. § 404.1520. First, the claimant must prove that she is not engaged in
substantial gainful activity. Id. Second, she must prove that she has a severe
impairment or combination of impairments. Id. Third, if the claimant proves that
she has a severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and her impairment meets or medically equals a
listed impairment contained in Appendix 1, Subpart P, Regulation No. 4, the
claimant is presumed disabled without further inquiry. If the claimant fails at the
third step, she must proceed to the fourth step and prove that she is unable to
perform her past relevant work.4 Fifth, the burden shifts to the Commissioner to
4
At this step, the ALJ must assess: (1) the claimant’s residual functional capacity
(“RFC”); and (2) the claimant’s ability to return to her past relevant work. 20 C.F.R. §
9
determine whether the national economy has a significant number of jobs that the
claimant is able to perform. If the Commissioner meets this burden, the claimant
must prove that she is unable to perform those jobs in order to be found disabled.
On appeal, McCloud raises seven issues: (1) whether the ALJ properly
advised her of her right to counsel; (2) whether the ALJ fulfilled his duty to
develop the record when he excluded the husband’s testimony, conducted a cursory
hearing, and did not obtain records from other medical sources; (3) whether the
ALJ properly applied medical terminology concerning her GAF score to determine
whether she had any moderate limitations; (4) whether the ALJ properly
considered the consulting psychologist’s report; (5) whether the ALJ properly
considered the report from the state agency’s doctor, as required under SSR 96-6p;
(6) whether the ALJ posed a proper hypothetical to the VE; and (7) whether the
magistrate judge properly denied the motion to remand under sentence six based on
the husband’s affidavit.
1. Whether the ALJ Properly Advised McCloud of Her Right to Counsel
McCloud asserts that the ALJ failed to inform her of her right to counsel
sufficiently for her to have knowingly waived that right. She argues that the
404.1520(a)(4)(iv). The regulations define RFC as “that which an individual is still able to do
despite the limitations caused by his or her impairments.” 20 C.F.R. § 404.1545(a). Moreover,
the ALJ will “assess and make a finding about [the claimant’s] residual functional capacity
based on all the relevant medical and other evidence” in the case. 20 C.F.R. § 404.1520(e).
10
Commissioner has failed to show that she received the written notices informing
her of her right to counsel or that she signed the waiver of counsel form.
Furthermore, she asserts that her limited education and mental abilities and the
ALJ’s failure to tell her that she could obtain counsel for free or on a contingency
fee basis or to ensure that she had received the notices demonstrate that her verbal
waiver at the hearing was not made knowingly.
“A Social Security claimant has a statutory right, which may be waived, to
be represented by counsel at a hearing before the ALJ.” Brown v. Shalala, 44 F.3d
931, 934 (11th Cir. 1995). “If there has been a waiver of counsel, the claimant
must show ‘clear prejudice or unfairness’ caused by lack of counsel in order to
prove that he was denied a full and fair hearing and is entitled to a remand to the
Secretary.” Kelley v. Heckler, 761 F.2d 1538, 1540 n.2 (11th Cir. 1985).
First, we do not consider McCloud’s claims that the Commissioner failed to
show that she received the notices or that the ALJ’s advice at the hearing was
insufficient because she raised those arguments for the first time on appeal and in
the reply brief respectively. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1161 (11th Cir. 2004); Hall v. Coram HealthCare Corp., 157 F.3d 1286, 1290 (11th
Cir. 1998).
When we view the waiver in the context of the entire hearing, we conclude
11
that there is no evidence that McCloud failed to understand her right. At the
hearing, McCloud gave consistent testimony about her medical condition and
activities of daily living. Nothing about her communication would have indicated
that she did not understand the right to counsel or her waiver of that right.
Consequently, we hold that McCloud knowingly waived her right to counsel, and
she cannot show that she suffered prejudice from the lack of representation.5
2. Whether the ALJ Fulfilled His Duty to Develop the Record When He
Excluded McCloud’s Husband’s Testimony, Conducted a Cursory
Hearing, and Did Not Obtain Records from Other Medical Sources
McCloud argues that the ALJ failed to fulfill his duty to develop the record
on three occasions. She contends that evidence from non-medical sources such as
family members is desirable and that the ALJ should have permitted her to present
this favorable, corroborating evidence. She contends that the evidence was critical
because her credibility was questioned. She further asserts that a reviewing court
should not evaluate this factual evidence. McCloud also argues that the ALJ erred
by conducting a cursory hearing and failing to question her sufficiently about her
disabilities. Finally, McCloud asserts that the ALJ failed to obtain records from
5
Because we reject McCloud’s claim about being properly advised of her right to
counsel, we also reject her arguments that we should view her other claims with greater scrutiny
because she did not knowingly and voluntarily waive counsel or because she lacked counsel.
12
several hospital visits, all of which occurred within twelve months from the date of
the application, and should have subpoenaed the records.
“It is well-established that the ALJ has a basic duty to develop a full and fair
record.” Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). Consequently, the
ALJ must “scrupulously and conscientiously probe into, inquire of, and explore for
all relevant facts.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). In
determining whether a claimant is disabled, the ALJ must consider the evidence as
a whole, including “(1) objective medical facts or clinical findings; (2) diagnoses
of examining physicians; (3) subjective evidence of pain and disability as testified
to by the claimant and corroborated by (a spouse) . . ., and (4) the claimant’s age,
education, and work history.” DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir.
1972). Additionally, the claimant has the burden of producing evidence to support
her disability claim. Ellison, 355 F.3d at 1276.
A. Husband’s Testimony
The failure to produce other material does not rise to the level of a
constitutional violation if the ALJ had sufficient evidence on which to base his
decision. In determining that the husband’s testimony was unnecessary, the ALJ
explained that McCloud’s testimony lacked credibility and was unsupported by the
medical evidence. Cf. Walden v. Schweiker, 672 F.3d 835, 839-40 (11th Cir.
13
1982). When the medical evidence supports the ALJ’s determination, the ALJ
does not err by refusing to admit lay testimony. Laundry v. Heckler, 782 F.2d
1551, 1554 (11th Cir. 1986). At any rate, any error in the exclusion of the
husband’s testimony was harmless.
B. The Hearing
We have held that even when the hearing was “less than totally satisfactory,”
remand is unwarranted unless the claimant can show prejudice. Kelley v. Heckler,
761 F.2d 1538, 1540-41 (11th Cir. 1985). McCloud cannot show prejudice. The
evidence showed that she suffered anxiety and depression but discontinued use of
her medication and failed to seek treatment for over a year preceding her
application for SSI benefits. Given her non-compliance and lack of treatment, the
ALJ properly concluded that the medical evidence refuted McCloud’s complaints
and that he did not need to elicit further testimony.
C. Medical Records
Under 20 C.F.R. § 416.912(d), the Commissioner will “develop [the
claimant’s] complete medical history for at least the 12 months preceding the
month in which [the claimant] file[s] [the] application.” Nevertheless, the burden
is on the claimant to show that she is disabled and, therefore, she is responsible for
producing evidence to support her application. 20 C.F.R. § 416.912(a); 20 C.F.R.
14
§ 416.912(c); Ellison, 355 F.3d at 1276.
First, there is no evidence that McCloud obtained treatment from St. Francis
or Western Psychiatric Institute after the dates submitted or, if such treatment
occurred, that she attempted to obtain the records. According to the record, the
Commissioner attempted to obtain the records from the women’s shelter, but the
shelter refused to release them. The Commissioner notes that McCloud obtained
counsel in 2001, and neither McCloud nor counsel attempted to obtain the records;
nor did McCloud sign a release to permit access to the records. Instead, McCloud
asserts that the ALJ should have subpoenaed the records. McCloud failed to meet
her burden of producing evidence to support her claim.
To the extent McCloud contends that the ALJ should have obtained records
for treatment of which there is no evidence in the record, McCloud was in the best
position to inform the ALJ as to her treatment history, and by failing to do so, she
failed to meet her burden. Finally, to the extent that McCloud asserts that the ALJ
erred in failing to obtain records from 1998, those records are outside the twelve
months preceding the date of the application. Therefore, the ALJ was not under a
duty to include them in the record.
3. Issues 3-6
We group Issues 3-6 together because we conclude that the ALJ erred when
15
dealing with these issues and that the errors warrant remand. First, the parties
agree that the ALJ erred when he labeled McCloud’s 1998 GAF score as reflective
of moderate symptoms. In fact, a GAF score of 41-50 indicates severe
impairments. American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders 34 (4th ed. 1994). We are unable to determine from the
record what weight the ALJ placed on the GAF score of 45; therefore, we reject the
Commissioner’s argument that any error was harmless. With the knowledge that a
GAF score of 45 reflects severe impairments, the ALJ should determine what, if
any, weight to place on the score. In addition to this error, the ALJ failed to
consider McCloud’s GAF score of 48 from June 2000, which occurred just days
before she filed for SSI benefits, when determining whether she was disabled. On
remand, the ALJ must also consider what, if any, weight to accord McCloud’s June
2000 GAF score.
Second, McCloud argues that the ALJ failed to consider all of Dr.
Newman’s report. Newman found that McCloud would be unable to sustain
concentration and work for extended periods of time, but the ALJ discredited that
finding when adopting Newman’s finding that “the claimant has . . . moderate
deficiencies in concentration, persistence, or pace . . . .” The ALJ may reject the
opinion of any physician when the evidence supports a contrary conclusion.
16
Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). The ALJ is
required, however, to state with particularity the weight he gives to different
medical opinions and the reasons why. Sharfarz v. Bowen, 825 F.2d 278, 279
(11th Cir. 1987). Here, the ALJ neither explained the weight that he gave to
Newman’s report nor why he discredited Newman’s findings regarding McCloud’s
ability to engage in prolonged work. On remand, the ALJ must make these
determinations.
Third, McCloud argues that the ALJ ignored the findings made by Glover,
the state agency’s doctor. Under 20 C.F.R. § 404.1527(f)(2)(i)-(ii), the ALJ must
consider non-examining, reviewing State psychologists’ opinions and, when the
ALJ does not give controlling weight to a treating source, must explain the weight
given to the State psychologist’s opinions. Here, the ALJ relied on Glover’s report
to refute medical evidence, including McCloud’s GAF score, from McCloud’s
treating physicians. Consequently, the ALJ ran afoul of 20 C.F.R. §
404.1527(f)(2)(i)-(ii) when he did not explain the weight he gave to Glover’s
opinions. On remand, the ALJ must make this determination.
Fourth, McCloud argues that the hypothetical the ALJ posed to the VE was
insufficient because it merely limited her impairments to low stress jobs, thereby
failing to include all her impairments. When the ALJ poses a hypothetical question
17
to a VE, that question must include “all the claimant’s impairments.” Wilson v.
Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). The ALJ poses the questions to
determine whether someone with the same limitations as the claimants will be able
to secure employment in the national economy. Phillips v. Barnhart, 357 F.3d
1232, 1237 (11th Cir. 2004). Here, the hypothetical included all the limitations,
and the VE stated that, under those circumstances, such a claimant would not be
able to obtain employment in the national economy. The ALJ then asked whether
the VE’s answer would change if the hypothetical person could perform low stress
work. This hypothetical may have included all McCloud’s impairments, but
because the ALJ failed to include the GAF score and was unclear in the weight he
accorded Glover’s and Newman’s medical opinions, the hypothetical might have
been insufficient. Accordingly, on remand, the ALJ must determine whether his
previous hypothetical is sufficient in light of his decisions regarding the GAF score
and Glover’s and Newman’s testimony.
4. Whether the Magistrate Judge Properly Denied the Motion for
Remand Under Sentence Six Based on the Husband’s Affidavit
As an alternative to remand under sentence four of 42 U.S.C. § 405(g),
McCloud argues that the magistrate judge erred when he denied her motion for
remand under sentence six of 42 U.S.C. § 405(g). We review the magistrate
18
judge’s decision de novo. Cherry v. Heckler, 760 F.2d 1186, 1194 (11th Cir.
1985).
In order to demonstrate that a remand is necessary “the claimant must
establish that: (1) there is new, noncumulative evidence; (2) the evidence is
‘material,’ that is, relevant and probative so that there is a reasonable possibility
that it would change the administrative result; and (3) there is good cause for the
failure to submit the evidence at the administrative level.” Caulder v. Bowen, 791
F.2d 872, 877 (11th Cir. 1986) (citation omitted); 42 U.S.C. § 405(g).
Here, the magistrate judge properly denied the motion to remand under
sentence six. To the extent that the evidence addressed McCloud’s history of
depression and anger problems, it was cumulative. To the extent that the evidence
might have shown that the problem is escalating, the evidence does not necessarily
relate to the time period on or before the date of the ALJ’s decision. Moreover,
McCloud has failed to show a reasonable possibility that the outcome would have
been different had the ALJ considered this evidence.
IV. Conclusion
For the foregoing reasons, we AFFIRM on Issues 1, 2, and 7 and VACATE
and REMAND to the district court on Issues 3-6 with instructions to return the
case to the Commissioner for further proceedings consistent with this opinion.
19