[DO NOT PUBLISH]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restless, reported feeling depressed and having mood swings, and was withdrawn 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 illtemperament, 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 (antiCase: 12-15001 Date Filed: 05/02/2013 Page: 6 of 18 
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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 nonproduction 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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