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Rood v. Colvin

United States District Court, Tenth Circuit

January 15, 2014

LORENA L. ROOD, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

Sam A. Crow, U.S. District Senior Judge

This is an action reviewing the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant Lorena L. Rood’s (“Rood”) application for disability insurance benefits (“DIB”) under Title II of the Social Security Act ("Act") alleging the disability onset set date of February 1, 2009, based on a combination of impairments including post-traumatic stress disorder (“PTSD”), degenerative bone disease, hearing loss, tendonitis, arthritis, depression, ringing in the ears, short-term memory loss, and injuries to her back, hip, knee and shoulder (R. 74). The administrative law judge (“ALJ”) filed her decision on January 25, 2012, finding that Rood was not disabled. (R. 10-25). The Appeals Council denied Rood’s request for review, so the ALJ’s decision stands as the Commissioner’s final decision. With the administrative record (Dk. 3) and the parties' briefs on file pursuant to D. Kan. Rule 83.7.1 (Dks. 4, 9, and 10), the case is ripe for review and decision.

STANDARD OF REVIEW

The court's standard of review is set forth in 42 U.S.C. ' 405(g), which provides that the Commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." The court also reviews "whether the correct legal standards were applied." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence "must be based upon the record taken as a whole" while keeping in mind "evidence is not substantial if it is overwhelmed by other evidence in the record." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks and citations omitted). In its review of "whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, . . . [the court] will not reweigh the evidence or substitute . . . [its] judgment for the Commissioner's." Lax, 489 F.3d at 1084 (internal quotation marks and citation omitted).

The court's duty to assess whether substantial evidence exists: "is not merely a quantitative exercise. Evidence is not substantial 'if it is overwhelmed by other evidence--particularly certain types of evidence (e.g., that offered by treating physicians)--or if it really constitutes not evidence but mere conclusion.'" Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). At the same time, the court "may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Lax v. Astrue, 489 F.3d at 1084 (internal quotation marks and citation omitted). The court will "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been made." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted).

By statute, a disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months." 42 U.S.C. ' 423(d)(1)(A). An individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. ' 423(d)(2)(A).

A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step entails determining whether the "claimant is presently engaged in substantial gainful activity." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted). The second step requires the claimant to show he suffers from a "severe impairment, " that is, any "impairment or combination of impairments which limits [the claimant's] physical or mental ability to do basic work activities." Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (internal quotation marks and regulatory citations omitted). At step three, the claimant is to show his impairment is equivalent in severity to a listed impairment. Lax, 489 F.3d at 1084. “If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show that the impairment or combination of impairments prevents him from performing his past work.” Id. Should the claimant meet his burden at step four, the Commissioner then assumes the burden at step five of showing “that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy” considering the claimant’s age, education, and work experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (internal quotation marks and citation omitted). Substantial evidence must support the Commissioner’s showing at step five. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

ALJ’S DECISION

At step one, the ALJ denied Rood’s claim from the alleged onset date through January 2010 after finding that she had engaged in substantial gainful activity for that period. The ALJ also found that after January 2010 there was a continuous 12-month period in which Rood had not engaged in substantial gainful activity. At step two, the ALJ found the following impairments considered in combination to be severe: “right shoulder tendinitis with possible small rotator cuff tear s/p [post] surgery; mild degenerative join disease in the thoracic and lumbar spine; and posttraumatic stress disorder.” (R. 13). The ALJ excluded from this listing the following impairments as non-severe: minimal knee osteoarthritis, infrequent migraine headaches, irritable bowel syndrome, and obesity. At step three, Rood did not attempt to prove and the ALJ did not find that the impairments, individually or together, equaled the severity of the Listing of Impairments. The ALJ also found that Rood’s mental impairment did not meet the criteria of paragraphs B and C but did mildly restrict her daily living activities and create moderate difficulties with social functioning and with maintaining concentration, persistence and pace.

Before moving to steps four and five, the ALJ determined that Rood had the residual functional capacity (“RFC”) “to perform light work as defined in 20 CFR 404.1567(b) except she can perform rare overhead work at eye level or above with dominant right-handed, and it is limited to simple, routine tasks with no work with the general public.” (R. 16). At step four, the ALJ accepted the vocational expert’s testimony that this RFC left Rood unable to perform her past relevant work. At step five, the vocational expert provided testimony from which the ALJ concluded that “the clamant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (R.24). A decision of “not disabled” was filed.

ISSUE ONE: SUBSTANTIAL EVIDENCE FOR RFC FINDING

Under this issue, the claimant makes several challenges which the court will address under the following subheadings.

GAF Scores

Pointing to several GAF score references in the ALJ’s decision, the claimant argues the ALJ failed to view her GAF scores as fluctuating over the extended period and erred in considering her scores to be inconsistent with her testimony and other evidence on the extent of her mental impairment. The claimant singles out her lowest GAF score of 46 and argues this to be indicative of her inability to work. This score was assessed in August of 2011 by a vocational rehabilitation specialist during a telephone checkup. (R. 624-25). Less than a month later, a Veteran’s Administration (“VA”) clinical psychologist as part of a therapy session scored the claimant’s GAF at 63. (R. 618). The claimant cites for the period before and after August of 2011 three GAF scores between 60 and 65 and three scores between 50 and 55. The ALJ’s decision to summarize the claimant’s GAF scores over the treatment period as 55 to 63 is not an erroneous description of the reliable evidence. Nor does the court find any error in the ALJ’s use of the VA therapy psychologist’s GAF score of 63 in weighing and evaluating an “unemployability exam” and assessment made by a different VA psychologist, Dr. Rate, one month earlier. “Because a GAF score may not relate to a claimant’ s ability to work, the score, standing along without further explanation, does not establish whether or not ...


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