Carr v. Colvin

Filing 21

ORDER re: 9 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn W. Colvin, by Magistrate Judge Kristen L. Mix on 11/24/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02907-KLM
HEATHER MARIE CARR,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court1 on the Social Security Administrative Record
[#9],2 filed January 30, 2014, in support of Plaintiff’s Complaint [#1] seeking review of the
decision of Defendant Acting Commissioner of the Social Security Administration
(“Defendant” or “Commissioner”) denying Plaintiff’s claim for supplemental security income
benefits pursuant to 20 C.F.R. § 416 (“Title XVI”) of the Social Security Act, 42 U.S.C. §§
401-433 (the “Act”). On April 9, 2014, Plaintiff filed an Opening Brief [#12] (the “Brief”). On
May 7, 2014, Defendant filed a Response [#13] (the “Response”). The Court has
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g). The
Court has reviewed the entire case file and the applicable law and is sufficiently advised

1

The parties consented to proceed before the undersigned for all proceedings pursuant
to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See generally Consent Form [#19].
2

“[#9]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

1

in the premises. For the reasons set forth below, the Court AFFIRMS the decision of the
Commissioner.
I. Factual and Procedural Background
Plaintiff alleges that she became disabled on December 19, 2011.3 Tr. 9.4 On May
23, 2012, Plaintiff filed for Title XVI supplemental security income. Tr. 98-105. On May
24, 2013, a hearing was held before Administrative Law Judge Paul R. Armstrong (the
“ALJ”). Tr. 24-60. On June 8, 2013, the ALJ entered his Decision, finding that Plaintiff was
“not disabled under section 1614(a)(3)(A) of the Social Security Act.” Tr. 23. Plaintiff
appealed to the Appeals Council, which denied her request for review of the ALJ’s decision.
Tr. 1-5. Therefore, the ALJ’s decision became a final decision of the Commissioner for
purposes of judicial review. 20 C.F.R. §§ 416.1481.
Born on August 3, 1972, Plaintiff was 39 years old when she filed her application for
supplemental security income. Tr. 22, 117. The ALJ determined that, Plaintiff “worked
after the application date but this work activity did not rise to the level of substantial gainful
activity.” Tr. 12. The ALJ further found that Plaintiff “has at least a high school education
and is able to communicate in English.” Tr. 22. The ALJ determined that “[t]ransferability
of job skills is not material to the determination of disability . . . .” Tr. 22. Regarding
Plaintiff’s alleged disabilities, the ALJ found that she “has the following severe impairments:
Affective disorder; Personality disorder; Scoliosis; and Torticollis [ ].” Tr. 12. However, the

3

Plaintiff initially alleged that she became disabled on March 1, 2009. Tr. 117.

4

The Court refers to the Transcript of the Administrative Proceedings, located at Docket
Nos. 9-1, 9-2, 9-3, 9-4, 9-5, 9-6, and 9-7, by the sequential transcript numbers instead of the
separate docket numbers.

2

ALJ concluded that Plaintiff “does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” Tr. 12. After
reviewing the information in the record, the ALJ concluded that Plaintiff has the residual
functional capacity (“RFC”)
to perform light5 work as defined in 20 CFR 416.967(b) except no public
contact work. The claimant, moreover, is incapable of performing work[ ]
requiring more than superficial contact with supervisors and co-employees.
Tr. 14. Based on the RFC and the testimony of Lee O. Knutson (the “VE”), an impartial
vocational expert, the ALJ found that “there are jobs that exist in significant numbers in the
national economy that [Plaintiff] can perform . . . .” Tr. 19. Specifically, based on the
testimony of the VE, the ALJ concluded that Plaintiff could perform the representative
occupations of maid, cleaner/housekeeper, non-postal service mail sorter or mail-room
clerk, and machine tender. Tr. 23. He therefore found Plaintiff not disabled at step five of
the sequential evaluation. Tr. 23.
II. Standard of Review and Applicable Law
Pursuant to the Act:
[T]he Social Security Administration is authorized to pay disability insurance
benefits and Supplemental Security Income to persons who have a
“disability.” A person qualifies as disabled, and thereby eligible for such
benefits, “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.”
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A),

5

Light jobs involve lifting no more than 20 pounds occasionally and 10 pounds frequently,
standing and walking 6 of 8 hours, and sitting 2 of 8 hours. (Footnote in original).

3

1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if she is unable
“to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment . . . which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a); see also Wall
v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The
existence of a qualifying disabling impairment must be demonstrated by “medically
acceptable clinical and laboratory diagnostic” findings.

42 U.S.C. §§ 423(d)(3),

423(d)(5)(A).
“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 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 Court reviews a final decision of the Commissioner by examining the
administrative record and determining “whether the [ALJ’s] factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court
“may neither reweigh the evidence nor substitute [its] judgment for that of the agency.”
Harper v. Colvin, 528 F. App’x 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d
687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de
4

novo. Sisco v. U.S. Dep’t of Health & Human Servs., 10 F. 3d 739, 741 (10th Cir. 1993).
Thus, even when some evidence could support contrary findings, the Court “may not
displace the agency’s choice between two fairly conflicting views,” even if the Court may
have “made a different choice had the matter been before it de novo.” Oldham v. Astrue,
509 F.3d 1254, 1257-58 (10th Cir. 2007).
A.

Legal Standard
The Social Security Administration uses a five-step framework to determine whether

a claimant meets the necessary conditions to receive Social Security benefits. See 20
C.F.R. § 416.920. The claimant bears the burden of proof at steps one through four, and
if the claimant fails at any of these steps, consideration of any subsequent steps is
unnecessary. 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.”). The Commissioner bears the burden of proof at step
five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is “presently engaged
in substantial gainful activity.” Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d
1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two, whether a claimant has
“a medically severe impairment or impairments.” Id. “An impairment is severe under the
applicable regulations if it significantly limits a claimant’s physical or mental ability to
perform basic work activities.” Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521). Next,
at step three, the ALJ considers whether a claimant’s medically severe impairments are
equivalent to a condition “listed in the appendix of the relevant disability regulation,” i.e., the
“Listings.” Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). “If a claimant’s
5

impairments are not equivalent to a listed impairment, the ALJ must consider, at step four,
whether a claimant’s impairments prevent her from performing her past relevant work.”
Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). “Even if a claimant is so impaired,
the agency considers, at step five, whether she possesses the sufficient [RFC] to perform
other work in the national economy.” Id.
B.

Substantial Evidence
An ALJ must consider all evidence and explain why he or she finds a claimant not

disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need
not specifically “reference everything in the administrative record.” Wilson, 602 F.3d at
1148. “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. at 1140 (internal quotation marks omitted). “It
requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence
“if it is overwhelmed by other evidence in the record . . . .” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In other words, the Court’s determination of whether the
ALJ has supported his ruling with substantial evidence “must be based upon the record
taken as a whole.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Further,
evidence is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992). In addition, “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).
III. Analysis
Plaintiff requests judicial review of the ALJ’s decision denying her supplemental
6

social security income benefits. Brief [#12] at 1. Plaintiff brings three main challenges to
the ALJ’s findings, with multiple arguments offered in support of each challenge. First,
Plaintiff argues that the “ALJ’s analysis of [Plaintiff’s] treating therapist’s opinion that she
has significant mental limitations greater than those found by the ALJ is inconsistent with
Agency policy and the law of this circuit . . . .” Id. at 1, 6-13. Second, Plaintiff maintains
that the “ALJ’s assignment of little weight to [Plaintiff’s] mental health case specialist is not
supported by substantial evidence where, as here, the underlying evidence simply does not
support the assertions made by the ALJ with respect to the supposed ‘overestimation’ of
her limitations by her therapist.” Id. at 1, 14-30. As part of this second argument, Plaintiff
also challenges the ALJ’s assignment of “significant weight” to the opinion of the state
agency nonexamining consultant. Id. at 3, 27-30. Finally, Plaintiff argues that “the ALJ’s
mental RFC only addresses her social limitations” even though the ALJ found that Plaintiff
has “significant limitations of her ability to concentrate, persist at tasks, and maintain pace
. . . .” Id. at 22-26. The Court will address each of these arguments in turn.
A.

The ALJ’s Consideration of Ms. Etter’s Opinion
Plaintiff argues that the ALJ erred by not including all of the limitations Plaintiff’s

treating therapist found Plaintiff suffered from when the ALJ determined Plaintiff’s RFC.
Brief [#12] at 6. Specifically, Plaintiff maintains that Valerie Etter’s, LCSW (“”Etter”), May
21, 2013 opinion that Plaintiff has “extreme” limitations in certain work-related areas of
functioning and “marked” limitations in other work-related areas of functioning is supported
by the evidence. Id. at 7-8. She further argues that “the ALJ’s failure to account for the
additional limitations proven in the assessment of [Plaintiff’s] treating mental health source
is clear error, requiring remand.” Id. at 8.
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The Court may not reweigh the evidence or substitute its judgment for that of the
ALJ and the Commissioner. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005);
White v. Barnhart, 287 F.3d 903, 905, 908, 909 (10th Cir. 2001). However, the conclusions
reached by the ALJ must be reasonable and consistent with the evidence. See Glenn v.
Shalala, 21 F.3d 983, 988 (10th Cir. 1994) (explaining that the Court must affirm if,
considering the evidence as a whole, there is sufficient evidence which a reasonable mind
might accept as adequate to support a conclusion). An ALJ must evaluate every medical
opinion in the record, although the weight given each opinion will vary according to the
relationship between the disability claimant and the medical professional.” Hamlin v.
Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (citing 20 C.F.R. § 401.1527(d)).
In this case, the ALJ provided a very thorough analysis of the evidence he
considered when determining Plaintiff’s RFC. Tr. 14-22. The ALJ discussed the medical
records; Plaintiff’s testimony; the testimony of Plaintiff’s friend, Robert Fowler (“Fowler”);
Ms. Etter’s opinion; the opinion of the psychologist employed by the state agency, Dr.
Gayle Frommelt, Ph. D (“Frommelt”); and the opinion of the Single Decision-Maker (“SDM”)
employed by the state agency, Shari Gerson, to consider Plaintiff’s physical complaints.
Tr. 14-22.
Specifically, with regard to Ms. Etter’s May 21, 2013 opinion, the ALJ explained:
In determining the claimant’s [RFC], the undersigned considered the medical
source statement of Valerie Etter, a Licensed Clinical Social Worker (LSCW),
who counseled the claimant at Colorado West Mental Health. Based on
multiple therapy sessions, Ms. Etter concluded that the claimant’s ability to
understand, remember, and carry out instructions (simple and detailed) are
“extreme,” indicating a severe impairment with no useful ability to function in
this area. To support her conclusions, Ms. Etter reported that the claimant
has a “panic disorder presentation in which when she is challenged, her mind
shuts down and she is consumed with emotions often leading to anger
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outbursts.” In addition, Ms. Etter concluded that the claimant’s ability to
respond appropriately to supervision, co-workers and work pressures were
“marked” to “extreme.” To support her conclusions, Ms. Etter reported that
[ ] due to the claimant’s panic disorder and chronic Torticolis, the claimant
lacks the capacity to remain calm and centered under stress. Moreover, Ms.
Etter concluded that due to abandonment and emotional neglect, the
claimant lacks the social skills to interact effectively with co-workers and
supervisors consistently [ ].
The undersigned, however, afforded these conclusions little weight because
they overestimate the extent to which the claimant suffers limitations. For
example, as mentioned earlier, the claimant’s records and hearing testimony
reflect that the claimant attended IntelliTec college and has [a] certificate in
medical coding. On mental status examination, the claimant’s memory was
found to be “normal” [ ]. In terms of the social interaction, although the
claimant reported that [s]he has problems getting along with others, there is
no evidence of mental health problems on the claimant’s work performance
that ha[ve] led to emotional instability or difficulty developing and maintaining
appropriate co-worker relationships. For example, the record reflects the
claimant reported that while working at [a] previous job at a gastroenterology
clinic, she was “never angry.” She reported that at the gastroenterology
clinic, she was “always happy and chipper, and did not feel like anyone was
harming her at all.” The mental status examinations of record reveal[ ] the
claimant[’s] hygiene and grooming [were] good [ ]. Further, the mental status
examinations reflected the claimant presented within average limits of
intellectual functioning, which suggest no cognitive impairment understanding
or responding to supervisor feedback and adequately relating [to] co-workers.
Finally, the claimant’s records and hearing testimony reflect she has a
network of friends who support her emotionally and assist[ ] with claimant’s
temporary housing [ ].
Tr. 20-21. This portion of the ALJ’s Decision makes clear that the ALJ considered Ms.
Etter’s opinion, but found that the evidence in the record did not support her conclusion that
Plaintiff’s mental disability has the extreme implications on Plaintiff’s life that Ms. Etter
found it to have.
Plaintiff argues that “[a]lthough an opinion’s ‘inconsistency’ with the underlying
record is a facially valid reason for rejecting the opinion, when there are no ‘obvious
inconsistencies’ between the opinion and the treatment records, the inconsistency finding
9

is not supported by substantial evidence and should be reversed.” Brief [#12] at 17. As
Plaintiff concedes, consistency with the record as a whole is a legitimate basis for
determining the weight to be afforded an opinion. Pisciotta v. Astrue, 500 F.3d 1074, 1078
(10th Cir. 2007) (“In determining the weight to be given an opinion, the ALJ must consider
the consistency between that opinion and the record as a whole.”); see also 20 C.F.R. §
416.927 (“[W]e consider the following factors in deciding the weight we give to any medical
opinion. . . . (4) Consistency. Generally, the more consistent an opinion is with the record
as a whole, the more weight we will give to that opinion.”). Plaintiff appears to take this
concept and limit it to consistency with “the treatment records,” Brief [#12] at 17, however,
that is not the standard. Here, the ALJ very carefully analyzed the record as a whole and
determined that Ms. Etter’s opinion was inconsistent with Plaintiff’s testimony and treatment
records. The Court finds that the ALJ’s summary of Plaintiff’s treatment records and
testimony is accurate. See, e.g., Tr. 223 (“She told me that she was never angry there, she
was always happy and chipper, and did not feel like anyone was harming her at all.”); Tr.
296-97 (February 4, 2013 mental status examination summary); Tr. 298 (“Survivor; has
network of friends who help her out . . . “). Therefore, the Court finds that the ALJ’s
decision to afford little weight to Ms. Etter’s conclusions was not error. To the extent
Plaintiff is asking the Court to draw its own conclusions about the record, that is not the
Court’s role. Hackett, 395 F.3d at 1173.
Plaintiff also attacks the ALJ’s assignment of little weight to Ms. Etter’s conclusions
because the ALJ noted that Ms. Etter “is not an ‘acceptable medical source’ and only
‘acceptable medical sources’ can give medical opinions . . . .” Tr. 20. Pursuant to C.F.R.
§ 416.927(a)(1),
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Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions.
C.F.R. § 416.927(a)(1). As a Licensed Clinical Social Worker, Ms. Etter is not an
“acceptable medical source.” See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164-65 (10th
Cir. 2012) (noting that a GAF score “assessed by a counselor” was not prepared by an
“acceptable medical source” and finding that it was not an error for the ALJ assigned “only
modest weight” to the counselor’s GAF score assessment); Harris v. Colvin, No. 13-cv01107-REB, 2014 WL 4472414, at *3-4 (D. Colo. Sept. 11, 2014); see generally SSR 0603p, 2006 WL 2329939 (defining “acceptable medical sources” and noting that “[m]edical
sources who are not “acceptable medical sources” include “licensed clinical social workers).
While Plaintiff argues that the ALJ was required to evaluate Ms. Etter’s opinion using the
same criteria he would use to evaluate the opinion of an acceptable medical source,
namely the factors discussed in C.F.R. § 416.927(c), Brief [#12] at 19, the ALJ appears to
have done just that.
Medical opinions must be weighed as outlined in 20 C.F.R. § 416.927(c). This
provision requires an ALJ to consider: (1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the treatment relationship, including
the treatment provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency between
the opinion and the record as a whole; (5) whether or not the physician is a specialist in the
area upon which an opinion is rendered; and (6) other factors brought to the ALJ’s attention
which tend to support or contradict the opinion. 20 C.F.R. §416.927(c). Notably, the ALJ
11

need not discuss each individual factor. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th
Cir. 2007). Nevertheless, the ALJ must consider every factor in determining the weight to
assign a medical opinion, and “give good reasons in the notice of determination or decision
for the weight he ultimately assigns the opinion.” Watkins v. Barnhart, 350 F.3d 1297, 1301
(10th Cir. 2003) (internal quotation marks, internal brackets, and citation omitted). Here,
the ALJ very specifically noted that he found Ms. Etter’s opinion to be inconsistent with the
record. As discussed above, that is a legitimate reason for determining to give an opinion
less weight.
Plaintiff also takes issue with the ALJ’s consideration of the GAF6 scores contained
in Plaintiff’s treatment records. Brief [#12] at 20-22. Plaintiff argues that while “GAF
ratings, in and of themselves, are not an RFC finding . . . . they are clearly relevant
evidence that an ALJ may not properly overlook or misrepresent.” Id. at 21. Regarding the
GAF scores in the record, the ALJ explained:
The record reflects global assessment of functioning (GAF) scores ranging
from 30 to 60 indicating behavior considerably influenced by delusions or
hallucinations or serious impairment in communication or [judgment] (e.g.,
sometimes incoherent, acts grossly inappropriately, suicidal preoccupation)
or inability to [function] in almost all areas (e.g., stays in bed all day, no job,
home or friends) to moderate symptoms (e.g., occasional panic attacks) or
moderate difficulty in social, occupational or school functioning (e.g., few
friends, conflicts with peers or co-workers) [ ]. The undersigned affords some
weight [to] the GAF scores as they appear to accurately reflect the claimant’s
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“The GAF is a 100-point scale divided into ten numerical ranges, which permits clinicians
to assign a single ranged score to a person’s psychological, social, and occupational functioning.”
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 n.1 (10th Cir. 2012). A GAF score of 41-50
indicates “[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, unable to keep a job).” Id. (quotation omitted). A GAF score of 51-60 indicates
“[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers).” Id. (quotation omitted).

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symptom severity and level of functioning. However, it is noted that the
Commissioner[ ] has declined to endorse the GAF scale for “use in the Social
Security and SSI disability programs,” and has indicated that GAF scores
have no “direct correlation to the severity requirements of the mental
disorders listings.” 65 Fed. Reg. 50746, 50746-65 (2000). Thus, although
GAF scores can be helpful in an Administrative Law Judge’s decision-making
process, they are considered a snapshot of functioning at the time of
examination not determinative of overall disability.
Tr. 20. (internal brackets omitted). Plaintiff maintains that “the ALJ plainly misunderstands
the import of a ‘snapshot.’ One snapshot may only prove that a person was having ‘a bad
day’ however, in this case, the record of GAF scores . . . offers numerous snapshots, which
present a consistent picture of inability to function on a ‘regular and continuous basis.’” Brief
[#12] at 22.
The ALJ noted that he afforded “some weight” to the GAF scores, but properly
explained that the GAF scores are “not determinative of overall disability.” Tr. 20; see
Luttrell v. Astrue, 453 F.App’x 786, 792 n.4 (10th Cir. 2011) (unpublished) (“This court has
repeatedly noted . . . that generalized GAF scores, which do not specify particular workrelated limitations, may be helpful in arriving at an RFC but are not essential to the RFC’s
accuracy.” (internal quotation marks and citations omitted)); Lopez v. Barnhart, 78 F.App’x
675, 678 (2003) (unpublished) (“Contrary to claimant’s contention, a GAF score of 40 may
indicate problems that do not necessarily relate to the ability to hold a job. Thus, standing
alone, the GAF score does not evidence an impairment seriously interfering with claimant’s
ability to work.” (citations omitted)); Howard v. Comm’r of Soc. Sec., 276 F.3d 241 (6th Cir.
2002) (“While a GAF score may be of considerable help to the ALJ in formulating the RFC,
it is not essential to the RFC’s accuracy.”). The Court finds no error with the ALJ’s
assigned of “some weight” to the GAF scores in the record and his consideration of them
13

in the context of the overall record. Plaintiff’s argument that the ALJ may have overlooked
or misrepresented the GAF scores, Brief [#12] at 21, lacks merit.
B.

The Assignment of “Significant Weight” to Certain Conclusions Reached by
the State Agency Psychologist
On August 21, 2012, Dr. Frommelt, a nonexamining agency psychologist, reviewed

Plaintiff’s records as a result of Plaintiff’s application for supplemental security income. Tr.
62-73. Dr. Frommelt reviewed Plaintiff’s records, including a May 3, 2012 opinion from Ms.
Etter. Tr. 63-65, 68. Dr. Frommelt applied the criteria of the Listings to her analysis of
Plaintiff. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the Listings); 20 C.F.R. § 416.925(a);
Soc. Sec. Ruling 83-19, 1983 WL 31248, at *1 (SSA 1983). Mental disorders are analyzed
under § 12.00 of the Listings, which defines each of the nine diagnostic categories
identified therein by three criteria: a statement describing the disorder (the “Capsule
Definition”), a set of medical findings (“Paragraph A”) and a set of impairment-related
functional limitations (“Paragraph B”).7 Alternative functional criteria (“Paragraph C”) are
included for certain classes of disorders. A claimant’s impairment meets or equals a listed
impairment, and therefore is presumed to be disabling, if the diagnostic description of the
Capsule Definition and the criteria of both Paragraphs A and B (or Paragraphs A and C,
where appropriate) are satisfied. See 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00A.
Considering the Paragraph B criteria for the mental conditions with which Plaintiff has been

7

Paragraph B requires proof that a medically determinable impairment has resulted “in at
least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties
in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence,
or pace; or 4. Repeated episodes of decompensation, each of extended duration.” 20 C.F.R., Pt.
404, Subpt. P., App. 1, § 12.04B.

14

diagnosed, Dr. Frommelt found that Plaintiff has (1) mild restriction of activities of daily
living; (2) moderate difficulties in maintaining social functioning; (3) moderate difficulties in
maintaining concentration, persistence, or pace; and (4) no repeated episodes of
decompensation of extended duration. Tr. 66. As a result, Dr. Frommelt concluded that
Plaintiff’s impairments did not meet the Paragraph B criteria of the Listings because the
records did not support a conclusion that Plaintiff had “marked” restrictions in any of the
functional areas covered by Paragraph B. Tr. 66. Dr. Fommelt also concluded that the
“[e]vidence does not establish the presence of the “C” criteria.” Tr. 66.
The ALJ considered Dr. Frommelt’s conclusions and
afforded significant weight to the “paragraph B” conclusions and the mental
residual functional capacity (RFC) conclusions reached by the psychologist
employed by the state agency (DDS), which also support a finding of ‘not
disabled.’ Based on a review of the evidence of record, the DDS
psychologist concluded that the claimant is no more than “moderately” limited
in her mental ability to perform work-related tasks. The DDS psychologist
concluded that the claimant retains the abilit[y] to do work of limited
complexity that would be learned in three (3) month[’]s time and she could
manage social interactions that are not frequent or prolonged [ ]. The DDS
physician is an expert in disability evaluation, reviewed all the available
evidence, and h[er] opinion is consistent with evidence of record. For
example, the mental status examinations of record indicate[ ] the claimant is
of “average” intelligence and worked successfully with limited social
interaction at a gastroenterologist office. In addition, the claimant is capable
of some activities of daily living and social interaction with friends despite
reported panic attacks [ ].
Tr. 21.
The Court may not reweigh the evidence or substitute its judgment for that of the
ALJ and the Commissioner. Hackett, 395 F.3d at 1173; White, 287 F.3d at 905, 908, 909.
However, the conclusions reached by the ALJ must be reasonable and consistent with the
evidence. See Glenn, 21 F.3d at 988 (explaining that the Court must affirm if, considering
15

the evidence as a whole, there is sufficient evidence which a reasonable mind might accept
as adequate to support a conclusion). Further, “[a]lthough the ALJ need not discuss all of
the evidence in the record, he may not ignore evidence that does not support his decision,
especially when that evidence is ‘significantly probative.’” Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001) (quoting Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996)).
Notably, Dr. Frommelt, an agency psychologist, never met with Plaintiff. Instead,
her opinion was based only on a review of Plaintiff’s treatment records and Ms. Etter’s
opinion. “The opinion of an examining physician is generally entitled to less weight than
that of a treating physician, and the opinion of an agency physician who has never seen
the claimant is entitled to the least weight of all.” Robinson v. Barnhart, 366 F.3d 1078,
1084 (10th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(1), (2); 20 C.F.R. § 416.927(1), (2);
Soc. Sec. R. 96-6p, 1996 WL 374180, at *2). However, an ALJ “may not ignore these
opinions and must explain the weight given to these opinions in their decisions,” Soc. Sec.
Ruling 96-6p, 1996 WL 374180, at *2, and may give weight to a non-examining, consulting
doctor, like Dr. Frommelt, if he provides a “legally sufficient explanation for doing so.” Id.;
see also 20 C.F.R. §§ 416.927(c), 416.927(e)(2)(ii) (“[T]he administrative law judge must
explain in the decision the weight given to the opinions of a State agency medical or
psychological consultant or other program physician, psychologist, or other medical
specialist, as the administrative law judge must do for any opinions from treating sources,
nontreating sources, and other nonexamining sources who do not work for us.”). Here,
there was no treating physician and the ALJ explained that Dr. Fommelt’s opinion “is
consistent with the evidence of record.” Tr. 21. Consistency with the record as a whole is
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a legitimate basis for determining the weight to be afforded an opinion. Pisciotta, 500 F.3d
at 1078 (“In determining the weight to be given an opinion, the ALJ must consider the
consistency between that opinion and the record as a whole.”). Further, the ALJ provided
specific examples of portions of the record that support Dr. Frommelt’s conclusions. Tr. 21.
To the extent Plaintiff reviews the evidence Dr. Frommelt considered when reaching her
conclusions and asks the Court to reach a different conclusion from the doctor, Brief [#12]
at 27-29, that is not the Court’s role.
Plaintiff makes one additional attack on Dr. Frommelt’s analysis. She argues that
the Agency consultant only reviewed a partial record and, most importantly,
was never given the opportunity to review the assessment of [Plaintiff’s]
treating source. An ALJ may not rely on an non-examining physician’s RFC
when the Agency RFC assessments, completed almost a year prior to the
hearing, were not based on the full record.
Brief [#12] at 29 (emphasis in original). Plaintiff relies on a variety of nonbinding cases to
support this argument. The main case on which she relies is Frankl v. Shalala, 47 F.3d 935
(8th Cir. 1995). In that case the Eighth Circuit found that because the RFC assessment
forms completed by a nonexamining agency physician “were not based on the full record
in this case,” those forms “cannot constitute substantial evidence that[ the plaintiff] was
capable of performing the full range of light work at the time of the hearing . . . .” Id. at 938.
This nonbinding case was discussed by Senior District Judge Crow of the District of Kansas
last year. He correctly explained that “Frankl does not establish a rule that medical
opinions become stale after a year and lose their persuasive force. Instead the ALJ
accepted the plaintiff’s testimony that his condition had changed after the forms had been
completed, and no contradictory medical evidence of the plaintiff’s RFC at the time of the
hearing was presented.” Lee v. Colvin, No. 12-2559-SAC, 2013 WL 4549211, at *3 (D.
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Kan. Aug. 28, 2013); see also O’Bannon v. Colvin, Civil No. 1:13-cv-207-DBH, 2014 WL
1767128, at *7 (D. Me. April 29, 2014). Therefore, the question is not whether Dr.
Frommelt’s opinion was stale, but whether the treatment records that post-dated Dr.
Frommelt’s assessment would have changed the conclusions.
Dr. Frommelt examined the following information when reaching her conclusions:
a May 3, 2012 opinion of Ms. Etter, Tr. 64, 67-68; a variety of documents provided by
Plaintiff, Tr. 63-64; and treatment records completed by Plaintiff’s therapists at Colorado
West Mental Health dated October 20, 2011; February 6, 2012; March 22, 2012; and May
3, 2012, Tr. 65. Plaintiff offers no argument that her condition deteriorated after May 3,
2012, the most recent of the records considered by Dr. Frommelt. Further, the treatment
records show only two counseling sessions that post-date the records reviewed by Dr.
Frommelt. Tr. 295-301. The treatment notes from Plaintiff’s July 15, 2012 counseling
session does not note any changes in her condition. Tr. 299-301. In fact, the primary
purpose of the appointment was to refer her to the Center for Mental Health in Delta County
because she relocated to Cedaredge, Colorado. Tr. 299. Plaintiff’s February 4, 2013
session with Ms. Etter was a “6 month assessment.” Tr. 295. Ms. Etter noted that
“Heather has been certified as a medical coder and would like to pursue aspirations for
rejoining this career track while getting more school related to this area.” Tr. 295. She also
wrote that “Heather is feeling safe in her current environment and has access to medical
care.” Tr. 296. In her “Diagnostic Formulation,” Ms. Etter explained:
This is Heather’s 6 month assessment. Heather is coping with many life
stressors with an unintended pregnancy, homelessness, and the recent loss
of her grandmother. The father of the child cheated on her and was
emotionally abusive. Her life tends to be filled with chaos like her childhood.
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Tr. 297. The Mental Status Examination noted many “normal” and “fair” assessments. Tr.
296-97. The Risk Assessment portion of the treatment notes indicated that there was “no
risk” of suicide, homicide [or] grave[ ] disab[ility].” Tr. 297. In addition, in her summary and
recommendations, Ms. Etter noted:
Emotional[ly] volatile at times; goes into rages; medical issues since birth;
chaotic relationships; homelessness; no family support; borderline personality
disorder; anxiety.
Survivor; has network of friends who help her out; has a dog; is being
positive about this pregnancy and making wise choice of adopting it out.
Tr. 298. Nothing in these records indicates that Plaintiff’s condition deteriorated in any way
and that, as a result, Dr. Frommelt’s opinion should not have been given any weight by the
ALJ. Therefore, the Court finds that the ALJ’s assignment of “significant weight” to certain
conclusions reached by Dr. Frommelt was not error.
C.

The Mental RFC
Finally, Plaintiff argues that “the ALJ’s mental RFC only addresses her social

limitations” even though the ALJ found that Plaintiff has “significant limitations of her ability
to concentrate, persist at tasks, and maintain pace . . . .” Brief [#12] at 22-26. With regard
to concentration, persistence, or pace, the ALJ found that Plaintiff
has moderate difficulties. Deficiencies or limitations in concentration,
persistence, or pace were assessed through a mental state exam (MSE).
The mental status examinations of record reflect that the claimant’s attention
and concentration range from “normal” to distractible [ ]. However, the
claimant’s records and hearing testimony did not describe a history of
problems with attention and concentration within the work environments.
Further, the claimant displayed no indication of distraction during the
evaluation. Her treating source mental status examination noted normal
speech and concentration, average intelligence, logical and goal-directed
thought processes and no perceptual disturbances [ ]. Nonetheless, the
undersigned find[s] that the claimant’s concentration, persistence, and pace
are likely to be moderately diminished due to distractibility associated with
mental health symptoms and stress factors.
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Tr. 13. Ultimately, the ALJ found that Plaintiff “has the [RFC] to perform light work as
defined in 20 CFR 416.967(b) except no public contact work.” Tr. 14. Defendant admits
that “there were no concentration, persistence, or pace limitations in Plaintiff’s” RFC.
Response [#13] at 14. Defendant argues, however, that “the jobs identified by the [VE]
were all unskilled” and that “the State agency psychologist opined that Plaintiff retained the
[RFC] to perform the low end of semi-skilled work.” Id. Defendant further maintains that
“even though the [RFC] did not include any limitations on the ability to concentrate, Plaintiff
cannot show that the ALJ’s decision would have been different had the [RFC] included
limitations on the ability to concentrate.” Id. at 15 (citing Diaz v. Sec’y of Health & Human
Servs., 898 F.2d 774, 777 (10th Cir. 1990)).
The issue here is that Plaintiff believes that because the ALJ found a moderate
impairment at step three of his assessment, he must explicitly discuss or state that
impairment and an accommodation for that impairment in the RFC. Plaintiff does not
provide legal authority for this proposition and the applicable authority does not appear to
include such a requirement. The Social Security Administration (“SSA”) has made clear
that the “RFC assessment must be based on all of the relevant evidence in the case record
. . . .“ SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996), however, it does not require the
ALJ to explain the RFC in any particular way or to explicitly incorporate his findings at steps
two and three into his written RFC at step four. The SSA’s policy states:
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 of
the adult mental disorders listings in 12.00 of the Listing of Impairments, and
summarized on the PRTF.
SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996).
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The Southern District of New York recently addressed this question in Roman
Jimenez v. Colvin, No. 12 Civ. 6001(PGG)(FM), 2014 WL 572721 (SDNY Feb. 13, 2014).
That court explained:
Roman further objects that the RFC finding conflicts with the ALJ's
determination at Step Three that she has “marked limitation in concentration,
persistence, and pace” and “moderate difficulties” in social functioning. (Pl.'s
Mem. at 13 (citing Tr. 17)). Determinations at Step Three, however, are
different than those at Step Four. SSR 96-8P, 1996 WL 374184, at *4 (S.S.A.
July 2, 1996). As the ALJ noted, limitations identified at Step Three “are not
[an RFC] assessment . . . . The mental [RFC] assessment used at steps 4
and 5 of the sequential evaluation process requires a more detailed
assessment by itemizing various functions.” (Id. at 17-18 (citing SSR 96-8P)).
In other words, identifying an impairment at Step Three—even a marked
impairment—does not define the scope of residual functional capacity. See,
e.g., Anderson v. Colvin, No. 12-1102, 2013 WL 1339379, at *6 (10th Cir.
Apr. 4, 2013) (“the ALJ was not required to include any of [the doctor’s] ‘B
criteria’ opinions in his RFC assessment”). The ALJ properly performed the
more detailed evaluation, considering and weighing the reports of the treating
and evaluating professionals, as well as Roman’s own testimony, and
concluded that Roman had the RFC to perform [ ] light, unskilled work,
limited by certain environmental factors. (Tr. 18). His prior determinations
have no bearing on this finding.
Id. at *14. In addition, the Tenth Circuit recently held that the ALJ was not required to
include a doctor’s Paragraph B criteria opinions in his RFC assessment because the
limitations identified in Paragraph B “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.”
Anderson v. Colvin, 514 F.App’x 756, 763 (10th Cir. 2013) (unpublished) (quoting SSR 968p, 1996 WL 374184, at *4 (July 2, 1996)). Therefore, the Court does not find support for
Plaintiff’s position and finds that the ALJ did not err by not explicitly noting a concentration,
persistence, or pace limitation in his RFC.
IV. Conclusion
The record contains substantial evidence from which the ALJ concluded that Plaintiff
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was not entitled to benefits under the Act during the time relevant to this case. The ALJ’s
decision was based upon substantial evidence and is free of reversible legal error.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED that each party shall bear its own costs and attorney’s
fees.
Dated: November 24, 2014

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