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Parent v. Colvin

United States District Court, D. Colorado

September 10, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Page 1255

For Bronwyn K. Parent, Plaintiff: Michael W. Seckar, LEAD ATTORNEY, Rachael Adair Lundy, Michael W. Seckar, P.C., Pueblo, CO.

For Carolyn W. Colvin, Defendant: J. Benedict Garcia, LEAD ATTORNEY, U.S. Attorney's Office-Denver, Denver, CO; Allan D. Berger, Christina J. Valerio, Sandra Thourot Krider, Social Security Administration-Denver, Office of the General Counsel, Region VIII, Denver, CO.

Page 1256


Robert E. Blackburn, United States District Judge.

The matter before me is plaintiff's Complaint [#1],[1] filed March 25, 2013, seeking review of the Commissioner's decision denying plaintiff's claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 405(g). The matter has been fully briefed, obviating the need for oral argument. I affirm.


Plaintiff alleges that she is disabled as a result of an affective disorder, a personality disorder, gastroesophageal reflux disease, and keratoconus.[2] After her applications for disability insurance benefits and

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supplemental security income benefits were denied, plaintiff requested a hearing before an administrative law judge. This hearing was held on August 15, 2011. At the time of the hearing, plaintiff was 33 years old. She has high school education and past relevant work experience as a cashier, fast food worker, bagger, and demonstrator. She has not engaged in substantial gainful activity since February 23, 2009, her alleged date of onset.

The ALJ found that plaintiff was not disabled and therefore not entitled to disability insurance benefits or supplemental security income benefits. Although the medical evidence established that plaintiff suffered from severe impairments, the ALJ concluded that the severity of those impairments did not meet or equal any impairment listed in the social security regulations. The ALJ found that plaintiff had the residual functional capacity to perform medium work with certain postural and non-exertional restrictions. Although this finding precluded plaintiff's past relevant work, the ALJ determined that there were other jobs existing in significant numbers in the national and local economies that she could perform. He therefore found plaintiff not disabled at step 5 of the sequential evaluation. Plaintiff appealed this decision to the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.


A person is disabled within the meaning of the Social Security Act only if her physical and/or mental impairments preclude her from performing both her previous work and any other " substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2). " When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Social Security Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).

The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled:

1. The ALJ must first ascertain whether the claimant is engaged in substantial gainful activity. A claimant who is working is not disabled regardless of the medical findings.
2. The ALJ must then determine whether the claimed impairment is " severe." A " severe impairment" must significantly limit the claimant's physical or mental ability to do basic work activities.
3. The ALJ must then determine if the impairment meets or equals in severity certain impairments described in Appendix 1 of the regulations.
4. If the claimant's impairment does not meet or equal a listed impairment, the ALJ must determine whether the claimant can perform his past work despite any limitations.
5. If the claimant does not have the residual functional capacity to perform her past work, the ALJ must decide whether the claimant can perform any other gainful and substantial work in the economy. This

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determination is made on the basis of the claimant's age, education, work experience, and residual functional capacity.

20 C.F.R. § 404.1520(a)(4)(i)-(v).[3] See also Williams v. Bowen 844 F.2d 748, 750-52 (10th Cir. 1988). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Secretary of Health & Human Services, 933 F.2d 799, 801 (10th Cir. 1991).

Review of the Commissioner's disability decision is limited to determining whether the ALJ applied the correct legal standard and whether the decision is supported by substantial evidence. Hamilton v. Secretary of Health and Human Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires more than a scintilla but less than a preponderance of the evidence. Hedstrom v. Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). " Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, " if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). Although a reviewing court should meticulously examine the record, it may not reweigh the evidence or substitute its discretion for that of the Commissioner. Id.


Plaintiff claims the ALJ erred evaluating the opinions of her treating mental health provider and in discrediting her subjective reports of disabling limitations. Finding no such reversible error, I affirm.

Plaintiff contends the ALJ erred in his consideration of the opinion of her treating source, Jill Ridley, NP. In May, 2010, Ms. Ridley completed a Mental Capacity Assessment on plaintiff's behalf in which she opined that plaintiff suffered from marked and extreme limitations in many aspects of work-related mental functioning. (Tr. 233-235.) The ALJ assigned this opinion " no weight," on the grounds that it was not issued by an acceptable medical source, was conclusory, and was unsupported by the evidence of record. (Tr. 35-36.) Although plaintiff suggests that these reasons are either legally and/or factually insupportable, I conclude otherwise.

The opinion of a treating source is entitled to controlling weight when it is " well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record." 20 C.F.R. § 404.1527(c)(2); see also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). However, Ms. Ridley, a nurse practitioner, is not considered an " acceptable medical source." See Social

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Security Ruling 06-03p, 2006 WL 2329939 at *1 (SSA Aug. 9, 2006). As such, she can neither issue medical opinions, see 20 C.F.R. § 404.1527(a)(2), nor be considered a treating source whose opinion must be evaluated to determine whether it is entitled to controlling weight, see 20 C.F.R. § 404.1513(d). See also Social Security Ruling 06-03p, 2006 WL 2329939 at *2; Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007).

Nevertheless, the opinions of " other" medical sources such as Ms. Ridley still must be considered, applying the same factors as are generally used to assess treating source opinions. Social Security Ruling 06-03p, 2006 WL 2329939 at *4 (SSA Aug. 9, 2006); 20 C.F.R. § § 404.1527(c)(2)-(6) & 416.927(c)(2)-(6). Among these factors are whether the opinion is consistent with and supported by the other evidence of record. See 20 C.F.R. § § 404.1527(c)(3) (" The better an explanation a source provides for an opinion, the more weight we will give that opinion." ) & 404.1527(c)(4) (" Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion." ). The ALJ invoked both these considerations in characterizing Ms. Ridley's opinion as " quite conclusory, providing very little explanation of the evidence relied on in forming the opinion." (Tr. 35-36.) Thus, the ALJ did not reject Ms. Ridley's opinion merely because she was not an acceptable medical source.

Moreover, his determination that Ms. Ridley's opinion was conclusory finds ample support in the record. As support for her opinions, Ms. Ridley stated that plaintiff had a " significant learning impairment as well as depressive [symptoms] that are profound." (Tr. 235.) Perhaps cognizant that this statement is, indeed, quite conclusory, plaintiff maintains that the ALJ should have considered whether Ms. Ridley's treatment notes supported her conclusions. Assuming arguendo that it constituted error not to do so, there is nothing in Ms. Ridley's scant records which undermines the ALJ's determination regarding the weight to be afforded this opinion. The notes of Ms. Ridley's two visits with plaintiff -- the first just one month before she authored the opinion at issue[4] -- do in fact provide little support for the extreme limitations she advocated.[5] Because the evidence fails to demonstrate that Ms. Ridley's treatment notes supported the marked and extreme limitations she endorsed, any failure to more specifically analyze those records does not warrant remand. See Williams v. Chater, 1995 WL 490280 at *2 (10th Cir. Aug.16, 1995) (" Procedural imperfection that does not affect a party's substantive rights is not a basis for reversal." ).

The ALJ also discredited Ms. Ridley's opinion as being unsupported by the

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other evidence of record.[6] The ALJ thoroughly reviewed all the records of plaintiff's mental health treatment (Tr. 30-31), as well as the various opinions of record regarding the limitations imposed by plaintiff's mental impairments (Tr. 34-35). Plaintiff's suggestion that this assessment is erroneous essentially asks me to reweigh the evidence, which I am neither inclined nor empowered to do. See Thompson, 987 F.2d at 1487. Conflicts in the evidence are for the ALJ to resolve, and he did not err in discharging that duty here. Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988); Gleason v. Apfel, 1999 WL 714172 at *4 (D. Kan. Sept. 1, 1999).

In a related argument, plaintiff maintains that the ALJ should have more thoroughly considered her GAF scores. " The GAF is a subjective determination based on a scale of 100 to 1 of 'the clinician's judgment of the individual's overall level of functioning.'" Langley v. Barnhart, 373 F.3d 1116, 1122 n.3 (10th Cir. 2004) (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 32 (Text Revision 4th ed. 2000) (" DSM-IV" )). The ALJ discounted plaintiff's GAF scores on the ground that they " provide[d] a limited indication of the claimant's overall level of functioning over an extended period." (Tr. 30-31.) Plaintiff points out, however, that she consistently was reported as having GAF scores of 50 -- indicating " [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, inability to keep a job)," DSM-IV at 34 -- over a period of sixteen months. She argues that this longitudinal evidence thus was probative of her overall functioning and should have been afforded greater gravitas in the ALJ's analysis.

I am unpersuaded. As the ALJ correctly noted, a low GAF score does not mandate a finding of disability. See Seymore v. Apfel, 1997 WL 755386 at *1--2 (10th Cir. Dec. 8, 1997); Cox v. Apfel, 2000 WL 1472729 at *9 (D. Kan. Feb. 24, 2000). More particularly, although a " GAF score of fifty or less . . . does suggest an inability to keep a job," Lee v. Barnhart, 117 F.App'x 674, 678 (10th Cir. Dec. 8, 2004), that determination is not entirely self-evident, see id. (unexplained GAF score not probative: " [t]he claimant's impairment, for example, might lie solely within the social, rather than the occupational, sphere" ); Oslin v. Barnhart, 69 F.App'x 942, 947 (10th Cir. July 17, 2003) (" [T]he GAF rating may indicate problems that do not necessarily relate to the ability to hold a job[.]" ). Although GAF scores may be highly probative when coupled with detailed description of how rating affects claimant's ability to work, Eden v. Barnhart, 109 F.App'x 311, 2004 WL 2051382 at *2 (10th Cir. Sept. 14, 2004); Seymore, 1997 WL 755386 at *2, here, no medical or other source ever made the critical connection between plaintiff's GAF scores and her work-related functioning. The ALJ in this case did not ignore plaintiff's GAF scores, cf. Lee, 117 F.App'x at 678, and no

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medical or other source has ever " indicated [that plaintiff] could not work or [that her] impairments interfered with [her] ability to keep a job." Oslin, 69 F.App'x at 947. Accordingly, if there was any error in this regard, it undoubtedly was harmless. See Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir. 1988) (mere fact of error does not warrant remand if the ALJ's determination is otherwise supported by substantial evidence).

Finally, plaintiff contends that the ALJ erred in discrediting her testimony regarding her functional limitations. More particularly, she suggests that the ALJ failed to properly apply the analysis required by Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987),[7] for evaluating subjective complaints of pain. This argument is belied by the record.[8] The ALJ specifically referred to the regulations and interpretive guidelines in his opinion (see Tr. 28), and nothing therein gives me reason to believe that he did not consider and apply the relevant factors, or that he did so incorrectly. See Cox, 2000 WL 1472729 at * 8 (citing Hamilton v. Secretary of Health & Human Services, 961 F.2d 1495, 1498-99 (10th Cir. 1992)). In general, " credibility determinations 'are peculiarly the province of the finder of fact,' and should not be upset if supported by substantial evidence." White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)). So long as the ALJ links his credibility assessment to specific evidence in the record, his determination is entitled to substantial deference. Id. at 910; see also Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). The ALJ here gave multiple, specific, legitimate reasons for his determination that plaintiff's allegations were entitled to less than full weight. (See Tr. 33-34.) There was no reversible error in this regard.


THEREFORE IT IS ORDERED that the conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.

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