           Case: 12-15001   Date Filed: 05/02/2013   Page: 1 of 18




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15001
                         Non-Argument Calendar
                       ________________________

                   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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