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Duncan v. Colvin

United States District Court, D. Kansas

April 23, 2015

BRYCE LEE DUNCAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's decision.

I. Background

Plaintiff applied for SSI, alleging disability beginning July 13, 2011. (R. 14, 297-303). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. Plaintiff presents five issues for consideration (Pl. Br. 4-5), but his brief does not precisely track the issues presented. The court perceives allegations of error in relation to the ALJ's step two evaluation, the evaluation of the medical source opinion of APNR Njoku, the step three evaluation of the mental listings, the hypothetical questioning of the vocational expert, the credibility determination, and the alleged failure to develop the record regarding a consultative psychiatric examination.

The court's review is guided by the Act. Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether she applied the correct legal standard. Lax v. Astrue , 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart , 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401 (1971); see also, Wall , 561 F.3d at 1052; Gossett v. Bowen , 862 F.2d 802, 804 (10th Cir. 1988).

The court may "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Bowman v. Astrue , 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart , 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett , 862 F.2d at 804-05; Ray v. Bowen , 865 F.2d 222, 224 (10th Cir. 1989).

The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. § 416.920; Wilson v. Astrue , 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen , 844 F.2d 748, 750 (10th Cir. 1988)). "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Wilson , 602 F.3d at 1139 (quoting Lax , 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether he has a severe impairment(s), and whether the severity of his impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams , 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant's residual functional capacity (RFC). 20 C.F.R. § 416.920(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

The Commissioner next evaluates steps four and five of the sequential process- determining at step four whether, in light of the RFC assessed, claimant can perform his past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson , 602 F.3d at 1139 (quoting Lax , 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart , 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter , 245 F.3d 1182, 1184 (10th Cir. 2001); Williams , 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock v. Apfel , 196 F.3d 1084, 1088 (10th Cir. 1999).

The court addresses each argument in the order it would be reached in applying the sequential evaluation process, beginning with Plaintiff's allegation of error in evaluating the severity of his mental impairments at step two of the sequential process.

II. The Step Two Determination

Plaintiff first argues that the ALJ correctly found that Plaintiff's affective disorder and anxiety disorder are severe, but that she erred in relying on Plaintiff's function report to find that "[i]n activities of daily living, the [plaintiff] has no more than mild restrictions." (Pl. Brief 6) (quoting R. 18). He argues that in making a severity finding an ALJ must rely upon psychiatric or psychological evaluations; (Pl. Brief) (citing Caldwell v. Sullivan , 736 F.Supp. 1076 (D. Kan. 1990); Sears v. Bowen , 840 F.2d 394 (7th Cir. 1988); and De Leon v. Sec'y of H.H.S. , 734 F.2d 930 (2nd Cir. 1984)); and that in any case an ALJ may not "cherry-pick" within Plaintiff's statement, but must accept it in it's entirety. (Pl. Br. 6-7).

Plaintiff is in error to assert that a severity finding with regard to mental impairments must be based on psychological or psychiatric evaluations or even to assert that it must be based primarily on medical evidence of any kind. The cases to which Plaintiff cites in support of this assertion do not support his proposition. First, none of the cases contains a pinpoint citation so that the court might find the applicable portion of the opinion cited. Nevertheless, the court searched through each of the opinions cited and was unable to ascertain a basis for Plaintiff's assertion.

The De Leon opinion comes the closest to suggesting the proposition asserted by Plaintiff (that an ALJ must use psychiatric or psychological evaluations rather than a claimant's testimony to determine the claimant's functional limitations), but that is not the holding of the De Leon court. In that case, the ALJ "determined that De Leon does not have a severe mental or psychological impairment, '" and terminated his SSI benefits on that basis. De Leon , 734 F.2d at 933-34. The court held, on the other hand, that "the evidence that De Leon suffers from severe psychological and mental impairments is overwhelming." Id. at 934. And that "the record does not contain substantial evidence to support the Secretary's contrary conclusion." Id. The court recognized that in certain cases involving mental impairments the demeanor and appearance (and potentially the testimony) of the claimant at the hearing "really do not contribute toward meeting the substantial evidence burden, " and found that "[h]owever De Leon may have appeared at his hearing, we cannot ignore the overwhelming evidence that he has severe, disabling psychological and other problems." Id. 734 F.2d at 935. Thus, the De Leon court's holding was not that a claimant's allegations regarding functional limitations could never be utilized in evaluating the severity of mental impairments, but that in the circumstances of that case, the other evidence was overwhelming.

Moreover, none of the cases cited by Plaintiff is from a court whose precedent is binding on this court. When citing opinions such as these, which are relevant to this court only for their persuasive value, it becomes all the more import for Plaintiff to provide pinpoint citations, and argument or explanation why that court reached a proper decision or a decision which would be required in the Tenth Circuit. None of that is present here.

Finally, the Commissioner has provided a special technique for evaluating the severity of mental impairments in a Social Security decision, and that technique provides for consideration of "all relevant evidence, " and specifically refers to sections 12.00C through 12.00H of the Listing of Impairments for information about the factors to be considered in evaluating functional limitations resulting from mental impairments. 20 C.F.R. § 416.920a(c). The Listing of Impairments specifically provides that "Information from the individual" is one source of evidence to be used in evaluating an individual's functional limitations. 20 C.F.R., Pt. 404, Subpt. P, App. 1 §12.00D(1)(b).

Plaintiff's argument that an "ALJ cannot cherry-pick' a lay report anymore [sic] than she can a medical report" (Pl. Br. 6), but that she "must accept plaintiff's self-report in its entirety, " id. at 7, is likewise unpersuasive. Each of the cases cited as authority for this assertion stands either for the proposition that an ALJ may not pick and choose through a particular uncontradicted medical opinion, selecting the portions that support her decision but ignoring the contrary portions; Haga v. Astrue , 482 F.3d 1205, 1208 (10th Cir. 2007); Moore v. Barnhart , 114 F.Appx. 983, 994 (10th Cir. 2004); or that an ALJ may not pick and choose among several medical opinions using those that support her decision while ignoring those that are contrary. Carpenter v. Astrue , 537 F.3d 1264, 1265 (10th Cir. 2008). Plaintiff provides neither argument nor authority that the rule with regard to medical reports or medical opinions should be extended to a claimant's testimony or reports. He provides no other basis for his assertion that the ALJ must accept Plaintiff's self-report in its entirety. This assertion is soundly contradicted by the fact that an ALJ is specifically required to evaluate the credibility of a claimant's allegations-she need not accept or reject all of the allegations together. The ALJ considered Plaintiff's allegations and found them "not entirely credible." (R. 19).

Plaintiff provides an argument presumably suggesting error in the ALJ's use of global assessment of functioning (GAF) scores in evaluating the severity of Plaintiff's mental impairments. (Pl. Br. 8-10); see also (Pl. Br. 2-4) (purporting to show GAF scores in the medical evidence assigned to Plaintiff's condition). This argument is quite confusing to the court. First, the court does not understand why it is included in Plaintiff's arguments regarding "Step 2: severity/non-severity of medical impairments, " because all of the ALJ's references to GAF scores appear, not in her step 2 analysis, but in her assessment of Plaintiff's RFC, under finding number 4 in her decision. (R. 18-22).

Moreover, Plaintiff's argument is not supported by the record. Plaintiff asserts that the ALJ "overlooked or ignored" GAF scores of 50 or 51 assigned on February 6, 2001, January 3, 2002, December 14, 2010, June 27, 2011, August 25, 2011, January 30, 2012, and July 23, 2012. (Pl. Br. 8-9). Two of the GAF scores to which Plaintiff appeals were assigned more than nine years before Plaintiff submitted his SSI application at issue here- February 6, 2001, and January 3, 2002. (R. 409, 421). They are not relevant to a determination whether Plaintiff is disabled on or after July 13, 2011. As to the five scores which are relevant to this disability determination, the evidence confirms that the ALJ considered them.

In the decision, the ALJ noted that the "records indicate that the claimant does have a history of complaint of anxiety and difficulty controlling his anger, " but that "treatment notes consistently indicate that the claimant was generally assessed GAF ratings above 50, indicating only moderate symptoms." (R. 21) (citing Exs. 11F and 15F, R. 313-736, 758-94). Those records which are within the relevant time frame for disability determination in this case reveal GAF scores which were assigned as follows- 12/10/2010-50 (R. 527, 640); 06/27/2011-51 (R. 538, 632); 08/25/2011-51 (R. 549, 627); 11/07/2011-52 (R. 622); 01/30/2012-54 (R. 617); 04/09/2012-54 (R. 791); 06/11/2012-50 (R. 786); 07/23/2012-50 (R. 777); 09/17/2012-55 (R. 765). The record reveals GAF scores in as low as 32 (R. 677) and as high as 50 (R. 692, 736) in 2003, 2004, and 2005. (R. 661-736). In 2009, Plaintiff underwent another course of treatment and was assigned GAF scores of 58 (R. 654, 658) and 60. (R. 646, 651). However, the court notes that these scores, assigned in June 2009 and earlier, are outside the applicable time frame for consideration of disability in this case, and were therefore properly ignored by both the ALJ and this court in deciding the issues here. The nine relevant GAF scores include three scores of 50 and the two scores of 51 cited by Plaintiff. And, as the ALJ found, Plaintiff was "generally" assessed GAF scores above 50 on six of these nine occasions, including the two occasions a score of 51 was assessed. The significance of GAF scores above 50 is that the Diagnostic and Statistical Manual of Mental Disorders provides that GAF scores in the range from 41 to 50 indicate "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job), " whereas GAF scores in the range of 51-60 indicate only "Moderate symptoms... OR moderate difficulty in social, occupational, or school functioning." Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM-IV-TR) 34 (4th ed. text revision 2000). (emphases in original). Therefore, as the ALJ correctly stated, the GAF scores in the relevant period generally "indicated only moderate symptoms." (R. 21) (emphasis added).

Plaintiff characterizes the ALJ as "arguing" that Plaintiff's "allegation of fear of large crowds and being paranoid around people is belied by his group therapy notes showing good mood and affect, with appropriate behavior." (Pl. Br. 10). He then implies that this is error because group therapy was a very controlled environment, because it cannot be compared to large crowds or agoraphobia, and because the ALJ ignored a treatment note allegedly demonstrating that Plaintiff cannot be in large crowds and that his conduct is long-standing. Id. The analysis to which Plaintiff ...


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