Cassares v. Colvin
ORDER affirming the Commissioner's decision, by Judge Lewis T. Babcock on 9/15/2014. (eseam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 13-cv-01512-LTB
GINA L. CASSARES,
CAROLYN W. COLVIN, Commissioner of Social Security,
Plaintiff Gina L. Cassares appeals Defendant’s (the “Commissioner”) final administrative
decision denying her claim for disability insurance benefits and supplemental security income
benefits under Titles II and XVI of the Social Security Act (the “Act”). Jurisdiction in this
appeal is proper pursuant to 42 U.S.C. § 405(g). Oral argument would not materially assist in
the determination of this appeal. After consideration of the briefs and the record, I affirm the
I. Statement of the Case
A hearing on Plaintiff’s claim was held before an administrative law judge (the “ALJ”)
on February 25, 2013. On March 5, 2013, the ALJ issued a decision finding that Plaintiff was
not disabled within the meaning of the Act. The Appeals Council denied Plaintiff’s request for
review thereby rendering the ALJ’s March 5, 2013 decision the Commissioner’s final decision
for purposes of my review. Plaintiff timely filed this appeal seeking review of the
Commissioner’s final decision.
II. Statement of Facts
Plaintiff was born on August 25, 1964, making her 47 years old at the time of her alleged
disability onset date of August 26, 2011. Administrative Record (“AR”) 148. Plaintiff has the
equivalency of a high school education and has worked in the past as a certified nursing assistant
and housekeeper but has not been employed since November of 2008. AR 180-1. Plaintiff
alleged disability due to depression, post-traumatic stress disorder, social anxiety, agoraphobia,
and back problems. AR 180.
B. Relevant Medical Evidence
In September of 2011, Plaintiff was evaluated by Elizabeth Richards, a licensed clinical
social worker. AR 245-8. Ms. Richards diagnosed Plaintiff with a mood disorder “not otherwise
specified,” noted that Plaintiff had a reported a history of post-traumatic stress disorder, and
assessed Plaintiff with a GAF score of 45-50. AR 247. Ms. Richards opined that Plaintiff would
benefit from inpatient psychiatric placement to stabilize her medications but that there was no
basis to place her on an involuntary mental health hold. AR 247-8.
In October of 2011, Plaintiff was examined by Jose G. Vega, Ph.D. AR 294-5. Dr. Vega
reported that Plaintiff was oriented as to time, place, person, and situation and presented herself
in an “extremely histrionic fashion.” AR 294. Dr. Vega diagnosed Plaintiff with recurrent and
moderate-to-severe levels of major depression and chronic post-traumatic stress disorder. AR
295. Shortly thereafter, Dr. Vega completed a Med-9 Form on which he indicated that Plaintiff
was totally and permanently disabled and unable to work at any job. AR 311. Dr. Vega’s
reiterated this same opinion on a Med-9 Form he completed in October of 2012. AR 310.
In December of 2011, Plaintiff was examined by Brett Valette, Ph.D. Ar 249-51. Dr.
Valette diagnosed Plaintiff with major depression and chronic pain, noted a history of “cerebral
vascular accident,” and assessed Plaintiff with a GAF score of 45-50. AR 251. Dr. Valette
opined that Plaintiff likely had mild impairments in memory, mild-to-moderate impairments in
concentration and persistence, and moderate impairments in social interaction. Id. Dr. Valette
further opined that Plaintiff had work limitations of being easily overwhelmed with complex
tasks and an inability to multitask; that her attendance would be impacted by her depression and
pain; and that working a normal day would probably be overwhelming for her. Id.
Mark Suyeishi, Psy.D., a non-examining State agency psychologist, reviewed the record
in December of 2011 and opined that Plaintiff was capable of performing work needing little or
no judgment and involving simple duties that could be learned on the job in a short period of
time. AR 73. Dr. Suyeishi further opined that Plaintiff could relate to co-workers if contact was
not frequent or prolonged and should only have minimal interaction with the general public. Id.
In January of 2012, Plaintiff was examined by Lauren Davis, D.O. AR 260-5. Dr. Davis
diagnosed Plaintiff with depression, anxiety, post-traumatic stress disorder, and chronic pain.
AR 265. Dr. Davis noted that Plaintiff had “significant psychiatric disease” and that her
psychiatric illnesses were playing a large part in her chronic pain. Id. Dr. Davis opined that
there were no limitations in the number of hours Plaintiff could stand, walk, or sit during an 8hour workday; that Plaintiff would have occasional postural difficulties with bending, squatting,
crouching, and stooping; and that Plaintiff could frequently lift or carry 20 pounds frequently
and 30 pounds occasionally. Id. Dr. Davis recommended that Plaintiff have an official
psychiatric evaluation “given [her] severe psychiatric diseases.” Id.
John Hardy, M.D., provided mental health treatment to Plaintiff beginning in August of
2012. AR 279-86. Dr. Hardy diagnosed Plaintiff with post-traumatic stress disorder and
assessed her with a GAF score of 51. AR 285. In October of 2012, Dr. Hardy noted that
“[Plaintiff] makes reference to looking for disability, now a common theme that suggests her
motivations are complex and casts a pall upon my confidence that she will clinically ‘respond.’”
John Harder, a licensed clinical social worker, also provided mental health treatment to
Plaintiff in the latter part of 2012. AR 287-92. Mr. Harder completed a Residual Functional
Capacity Evaluation (Mental) for Plaintiff and indicated that Plaintiff could occasionally
understand and remember directions and avoid distraction by others; seldom carry out
instructions, perform activities within a schedule, maintain regular attendance, interact
appropriately with the general pubic, accept instructions; respond appropriately to criticism from
supervisors, get along with coworkers, and respond appropriately to change; and rarely maintain
attention and concentration for extended periods, complete a normal workday and work week,
and perform at a consistent pace without an unreasonable number or length of rest periods. AR
318-9. Mr. Harder also opined that Plaintiff would be mentally off-task 60-70% of the work
week and would have absences from or interferences with work as a result of her mental
impairments on a weekly basis. AR 319.
C. Plaintiff’s Disability Hearing
At the February 25, 2013 hearing, Plaintiff testified that despite counseling and
medication she continued to suffer from anxiety and depression. AR 28-9. Plaintiff testified that
these conditions affected her concentration, memory, and social interactions. AR 29-31.
The ALJ asked the vocational expert (“VE”) if an individual with the same age and
educational background as Plaintiff who was “limited to an exertional level in the full range of
light; no ladders or scaffolds; occasional over-chest -level work; no complex tasks defined as
SVP 2 or less; [and] occasional dealing with the general public” could perform any of Plaintiff’s
past work. AR 39. The VE responded that such an individual could still work in housekeeping.
Id. The ALJ then asked the VE if there were other jobs such an individual would be capable of
performing. Id. The VE responded that such an individual could work as a small products
assembler and electronics worker. AR 39-40.
The ALJ next asked the VE to modify his first hypothetical to include the mental RFC
assessed by Mr. Harder and indicate whether such an individual would be able to engage in
competitive employment. AR 40. The VE responded that such an individual would not be able
to work standard work hours. Id. Upon questioning from Plaintiff’s attorney, the VE stated that
an individual who would miss one day of work per week due to mental impairments would not
be able to work a regular work schedule. Id.
D. The ALJ’s Decision
In his ruling, the ALJ applied the five-step sequential process outlined in 20 C.F.R. §§
404.1520(a) & 416.920(a). At the first step of the sequential process, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since her alleged disability onset date of
August 26, 2011. AR 10. At the second step, the ALJ determined that Plaintiff had severe
impairments of degenerative changes of the lumbar spine and cervical spine, major depression,
post-traumatic stress disorder; and social phobia/personality disorder. Id. At the third step, the
ALJ determined that Plaintiff did not have an impairment or a combination of impairments that
met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id.
At the fourth step of the sequential process, the ALJ determined Plaintiff had the RFC to
perform light work but could not climb ladders or scaffolds, could only occasionally engage in
over-chest-level work, could not perform complex tasks (i.e. SVP of 2 or less), and could only
occasionally deal with the general public. AR 12. Based on the assessed RFC, the ALJ
concluded that Plaintiff remained capable of performing her past relevant work as a
housekeeping cleaner which is classified as light with an SVP of 2. AR 15. Alternatively, the
ALJ concluded that there were other jobs existing in the national economy that Plaintiff was
capable of performing such as small products assembler and electronics worker. AR 16. Thus,
the ALJ concluded that Plaintiff was not disabled within the meaning of the Act. AR 20.
III. Standard of Review
In reviewing the Commissioner's decision, I must determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028
(10th Cir. 1992); Hamilton v. Secretary of Health & Human Servs., 961 F.2d 1495, 1497-98
(10th Cir. 1992). Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Hamilton, supra, 961 F.2d at 1498. I “may neither
reweigh the evidence nor substitute [my] discretion for that of the Administrative Law Judge.”
Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).
On appeal, Plaintiff argues that the ALJ erred (1) in failing to weigh Mr. Harder’s
opinions; (2) in failing to account for Plaintiff’s specific mental limitations in concluding that
she was capable of performing unskilled work; and (3) by ascribing an RFC to Plaintiff that is
not supported by substantial evidence in the record.
A. The ALJ’s Treatment of Mr. Harder’s Opinions
The ALJ discussed Mr. Harder’s opinions about Plaintiff’s limitations but effectively
rejected them because they were not consistent with the evidence as a whole; because there was
no indication that Mr. Harder was familiar with the Social Security requirements for disability or
the other evidence of record; and because Mr. Harder had only treated Plaintiff for 2 months
before he completed Plaintiff’s mental RFC evaluation. AR 14. Plaintiff argues that the ALJ
erred because his discussion of Mr. Harder’s opinions did not specifically state what weight he
was attaching to them.
While it would have been preferable for the ALJ to specify the weight he was giving to
Mr. Harder’s opinions as he did with respect to other medical opinions, it is obvious that he
considered Mr. Harder’s opinions and attached little to no weight to them for the stated reasons.
Under these circumstances, I am not persuaded that the ALJ’s failure to assign a specific weight
to Mr. Harder’s opinions constitutes reversible error. I further conclude that the reasons given
by the ALJ are sufficient to support his effective rejection of Mr. Harder’s opinions.
B. The ALJ’s Conclusion that Plaintiff Was Capable of Performing Unskilled Work
By concluding that Plaintiff was only capable of performing light work with an SVP of 2
or less, the ALJ restricted Plaintiff to unskilled work. See SSR 00-4P, 2000 WL 1898704 at *3.
Plaintiff argues that restricting Plaintiff to unskilled work failed to account for Plaintiff’s specific
mental impairments. I disagree in light of the RFC assessed by the ALJ.
“Unskilled work is work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). A restriction to
“unskilled work” may but does not necessarily take into account a claimant’s mental
impairments. See Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012) (restriction to
unskilled work accounted for issues of skill transfer and not impairment of mental functions);
Wayland v. Chater, 1996 WL 50459 at *2 (10th Cir. Feb.7, 1996) (recognizing that there may be
circumstances in which a mental limitation can be so obviously accommodated by a reduction in
skill level that no vocational evidence specifically addressing that limitation is necessary).
Plaintiff’s argument that the ALJ erred in not specifically accounting for her mental
impairments in assessing Plaintiff’s RFC or in questioning the VE focuses primarily on the
impairments assessed by Dr. Valette. The ALJ, however, gave “little” weight to Dr. Valette’s
opinions and did not, for the most part, incorporate them into the RFC he assessed for Plaintiff.
While the ALJ did find that Plaintiff had moderate limitations in social functioning and
maintaining concentration, persistence, and pace in analyzing the “paragraph B” criteria at step 3
of the sequential process (AR 11), it does not follow that the ALJ erred by not including these
specific limitations in his hypothetical questioning of the VE or in Plaintiff’s RFC. As explained
in the regulations,
[t]he adjudicator must remember that the limitations identified in the “paragraph
B” and “paragraph C” criteria are not an RFC assessment but are used to rate the
severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation
process. The mental RFC assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraphs B and C...
See SSR 96-8p, 1996 WL 374184 at *4. See also id. at * 1(“The RFC assessment considers only
functional limitations and restrictions that result from an individual’s medically determinable
impairment or combination of impairments, including the impact of any related symptoms.”).
Thus, numerous cases from this jurisdiction have held that an ALJ is not required to include
paragraph B limitations in an assessment of the claimant’s RFC or in hypothetical questioning of
the VE unless it results in a functional limitation. See e.g. North v. Colvin, 2014 WL 1267002 at
*8 (N.D. Okla. March 26, 2014); Jones v. Colvin, 2014 WL 3818283 at *16-7 (N.D. Okla. Aug.
Here, the RFC that the ALJ assessed for Plaintiff only included functional limitations of
no complex tasks and only occasional dealings with the general public. As further discussed
below, Plaintiff has failed to establish that the ALJ’s assessment of Plaintiff’s RFC is not
supported by substantial evidence in the record. I therefore conclude that the ALJ did not err by
not including additional functional limitations in Plaintiff’s RFC or in his questioning of the VE.
C. The ALJ’s Assessment of Plaintiff’s RFC
Plaintiff argues that the ALJ erred in his assessment of Plaintiff’s RFC because he did not
include consistent limitations found by medical sources or explain his failure to do so. I
RFC is “an administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms such as pain, may cause physical or
mental limitations or restrictions that may affect his or her capacity to do work related physical
or mental activities.” SSR 96-8p, 1996 WL 374184 at * 2. It is assessed “based on all of the
relevant evidence in the case record, including information about the individual’s symptoms and
any ‘medical source statements.’” Id. “[T]here is no requirement in the regulations for a direct
correspondence between an RFC finding and a specific medical opinion on the functional
capacity in question.” Chapo, 682 F.3d at 1288.
Plaintiff’s argument about the ALJ’s alleged improper failure to incorporate consistent
medical opinions is based on a selective reading of these opinions and the weight attached to
them by the ALJ. Attaching little weight to medical opinions is equivalent to effectively
rejecting them. Chapo, 582 F.3d at 1291. Thus, the ALJ effectively rejected Ms. Richards’
opinion that Plaintiff had a GAF score of 45-50 on the basis that Ms. Richards, a social worker,
does not qualify as an acceptable medical source and made observations regarding Plaintiff that
were inconsistent with this assessment. AR 13. Moreover, Ms. Richards September 2011 GAF
assessment for Plaintiff of 45-50 reflecting serious symptoms is inconsistent with Dr. Hardy’s
August 2012 assessment for Plaintiff of 51 reflecting only moderate symptoms. Id.
The ALJ likewise effectively rejected Dr. Valette’s opinions that Plaintiff would have
problems with attendance at work due to depression and pain and would probably be
overwhelmed by working a normal day on the basis that these opinions were undermined by Dr.
Valette’s observations and other evidence in the record. Id. Chief among this other evidence
were the perceptions of two medical sources that Plaintiff was behaving in an “extremely
histrionic fashion” and “looking for disability.” AR 14, 279 & 294.
The ALJ also effectively rejected Dr. Suyeishi’s opinions that Plaintiff cannot deal
closely with co-workers and should have only minimal interaction with the general public. AR
14. The ALJ explained that he was rejecting Dr. Suyeishi’s opinions about Plaintiff’s ability to
interact socially because these opinions were inconsistent with the firsthand observations of
medical sources who personally examined Plaintiff as opposed to Dr. Suyeishi who only
reviewed the records. Id.
In sum, the ALJ’s assessment of Plaintiff’s RFC is supported by substantial evidence in
the record when the entire record is taken into account, and the ALJ adequately explained why
he did not incorporate certain medical opinions into this assessment.
Based on the applicable legal standards, IT IS HEREBY ORDERED that the
Commissioner’s decision is AFFIRMED for the reasons set forth above.
Dated: September 15 , 2014 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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