Parent v. Colvin

Filing 23

ORDER AFFIRMING COMMISSIONER. By Judge Robert E. Blackburn on 9/10/2014. (alowe )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00762-REB
BRONWYN K. PARENT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
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.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she is disabled as a result of an affective disorder, a

1

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

personality disorder, gastroesophageal reflux disease, and keratoconus.2 After her
applications for disability insurance benefits and 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.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her

2

Keratoconus is a condition in which the cornea of the eye bulges outward, becoming coneshaped. The condition impairs vision and also may cause blurred vision, glare or halos at night, or
streaking of lights. See WebMD Eye Health Center, Eye Health and Keratoconus (available at
http://www.webmd.com/eye-health/eye-health-keratoconus) (last accessed September 10, 2014).

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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
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to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This 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.”

3

Throughout this opinion, although I cite to relevant sections of Part 404 of Title 20 of the Code of
Federal Regulations, which contain the Commissioner’s regulations relating to disability insurance
benefits, identical, parallel regulations can be found in Part 416 of that same title, relating to supplemental
security income benefits.

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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.
III. LEGAL ANALYSIS
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. 233235.) 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 “wellsupported 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

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source.” See Social 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

6

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 issue4 – 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 other
evidence of record.6 The ALJ thoroughly reviewed all the records of plaintiff’s mental

4

The brief nature of plaintiff’s treating relationship with Ms. Ridley further supports the ALJ’s
conclusion regarding the weight to be afforded to her opinions. See 20 C.F.R. § 404.1527(c)(2).
5

During plaintiff’s first visit, Ms. Ridley noted that although plaintiff was depressed, she appeared
“cooperative” and “polite”; that her affect was “stable,” “congruent,” and “normal”; that her thought process
was “logical and goal directed”; she was alert and oriented to time, place, and person; that her memory,
attention, speech, and comprehension were all normal; and that she acted appropriately in social
situations. (Tr. 240.) When Ms. Ridley next saw plaintiff one month later, they “spent the majority of the
session going over paperwork for her application for disablity[.]” Nevertheless, with the exception that
plaintiff’s thought process was now described as “slowed” and “blocked,” the remainder of the parameters
discussed above remained essentially normal. (See Tr. 242.)
6

Generally, the observation that a doctor naturally advocates for her patient provides no grounds
in itself for discrediting a medical source opinion. McGoffin v. Barnhart, 288 F.3d 1248, 1253 (10th
Cir.2002) (citing Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987)). Here, however, the ALJ made such
an observation in the context of trying to account for the extreme divergence between Ms. Ridley’s opinion
and the medical evidence. (See Tr. at 36.) Moreover, his determination to afford her opinion no weight is
more than adequately supported by the other specific, legitimate, and well-supported reasons he
articulated for that decision, and thus any error in relying on this fact undoubtedly was harmless. See
Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir. 1988).

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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

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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 Fed. Appx. 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 Fed. Appx. 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, 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 Fed. Appx. at 678, and no 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 Fed. Appx. 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.

9

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.

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In Luna, the Tenth Circuit outlined a tripartite test for evaluating subjective complaints of pain:
We must consider (1) whether Claimant established a pain-producing
impairment by objective medical evidence; (2) if so, whether there is a
“loose nexus” between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether, considering all the
evidence, both objective and subjective, Claimant’s pain is in fact
disabling.

Musgrave, 966 F.2d at 1375-76 (citing Luna, 834 F.2d at 163-64). The Commissioner’s regulations have
distilled this test into two parts, but the required analysis is the same. See 20 C.F.R. §§ 404.1529 &
416.929; see also Social Security Ruling 96-7p, 1996 WL 374186 (SSA July 2, 1996)..
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Contrary to plaintiff’s suggestion, there is no requirement that the ALJ specifically delineate
which of plaintiff’s allegations he finds credible and which he rejects. It is clear that the ALJ found
plaintiff’s statements not credible to the extent they were inconsistent with his determination of her residual
functional capacity. So long as that determination is adequately supported by specific citation to the
evidence of record, as was done here, no greater specificity is required.

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IV. ORDERS
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated September 10, 2014, at Denver, Colorado.
BY THE COURT:

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