Murray v. Social Security Administration, Commissioner of

Filing 14

MEMORANDUM AND ORDER - It is ordered that the Commissioner's decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 08/19/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN K. MURRAY,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 13-2173-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security Disability (SSD) benefits and
Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding error in the Commissioner’s evaluation of
the medical opinions, the court ORDERS that the decision shall be REVERSED and that
judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g)
REMANDING the case for further proceedings consistent with this opinion.
I.

Background
Plaintiff applied for SSD and SSI, alleging disability beginning October 8, 2008.

(R. 13, 146-58). In due course, Plaintiff exhausted proceedings before the Commissioner

and now seeks judicial review of the final decision denying benefits. He alleges that the
Administrative Law Judge (ALJ) erred in evaluating the record medical opinions, failed
to provide a narrative discussion regarding the residual functional capacity (RFC)
assessment as required by Social Security Ruling (SSR) 96-8p, and failed to properly
define her terms, and that the ALJ’s RFC is not supported by substantial record evidence.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether she applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind
might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
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other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920 (2011);1 Wilson v. Astrue, 602 F.3d
1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.
1988)). “If a determination can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139
(quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines
whether claimant has engaged in substantial gainful activity since the alleged onset,
whether he has a severe impairment(s), and whether the severity of his impairment(s)
meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R.,
Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the
Commissioner assesses claimant’s RFC. 20 C.F.R. § 404.1520(e). This assessment is
used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform his
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one

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The ALJ’s decision in this case was issued on November 30, 2011. Therefore, the
court applies the regulations contained in 20 C.F.R. Parts 400-499, as of April 1, 2011.
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through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds that remand is necessary because the ALJ erred in weighing the
medical opinions. Because a proper weighing of medical opinions necessarily involves a
new assessment of Plaintiff’s RFC, and because each of the remaining errors alleged by
Plaintiff relates to RFC assessment, the court will not address those errors in this opinion.
Plaintiff may make his arguments in that regard to the Commissioner on remand.
II.

Evaluation of the Medical Opinions
Plaintiff claims the ALJ erred in evaluating the opinion of his treating

psychologist, Dr. Schemmel, because she failed to consider the global assessment of
functioning (GAF) scores in Dr. Schemmel’s treatment notes which were in the range of
41-50 and were consistent with the GAF scores assigned by other treating sources. He
also claims error in that the ALJ purported to accord significant weight to the opinion of
the nonexamining state agency psychologist, Dr. Blum, but rejected Dr. Blum’s opinion
that Plaintiff is moderately limited in the ability to interact appropriately with the general
public without explaining her basis for doing so.

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The Commissioner argues that the ALJ properly evaluated the medical opinions.
With regard to Dr. Schemmel’s opinion she argues that Dr. Schemmel’s primary opinion
was provided as a report of a consultative examination performed at the request of the
state agency, and that Dr. Schemmel did not begin treating Plaintiff until thereafter, so
that opinion, formed after only one examination, is not a treating source opinion within
the meaning of the Act and the regulations. She argues that the ALJ did not “omit”
portions of Dr. Schemmel’s opinion, because the GAF scores alleged by Plaintiff to be
omitted were a part of Dr. Schemmel’s treatment records and not a part of the medical
opinion contained within the report of his consultative examination. Moreover, she
argues that GAF scores are designed to be used by practitioners in making treatment
decisions, that the Commissioner has declined to endorse GAF scores for use in disability
evaluation, and that the GAF scores cited by Plaintiff are contained within records of
treatment providers who generally agree that Plaintiff does not have significant
limitations in mental functioning. Finally, she argues that the ALJ provided several
reasons for discounting Dr. Shemmel’s opinion in addition to the GAF score.
The Commissioner also argues that the ALJ properly explained why she accorded
significant weight to Dr. Blum’s opinion. She acknowledges Dr. Blum’s opinion that
Plaintiff had moderate limitations in the abilities to carry out detailed instructions and to
interact appropriately with the general public, and argues that the “ALJ assigned
significant weight to the opinion because it was consistent with substantial evidence

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showing that Plaintiff did not have limitations severe enough to preclude all work.”
(Comm’r Br. 7-8).
A.

The ALJ’s Evaluation of the Medical Opinions

In her decision, the ALJ explained her evaluation of the opinions of Dr. Schemmel
and Dr. Blum:
In a consultative examination, Todd Schemmel PhD, who also is claimant’s
treating psychologist, observed appropriate eye contact and speech patterns
but claimant was mildly anxious and depressed. His thought processes
were organized and goal directed and he evidenced his feelings of
depression pessimism and worthlessness. There was no problem with his
thought content, however. Claimant’s attention and concentration, per digit
recall, were poor. His judgment was also poor but he showed good insight
into his emotional functioning. He denied any history of homicidal ideation
or suicidal intent or plan. In conclusion, Dr. Schemmel gave claimant a
global assessment of functioning score of 53, representing a moderate
impairment in functioning, and opined that claimant would be able to
understand and follow only very simple instructions due to poor attention
and concentration, emphasizing, however, that “his depression does not
appear severe enough to prevent employment,” but adding the caveat, “[He]
does not currently appear to possess the cognitive adaptability or
persistence necessary for sustained gainful employment.” ([Exhibit] 7F [(R.
436-40)])
In considering the weight to accord the medical source statement from Dr.
Schemmel, the undersigned notes that claimant has consistently engaged in
work activity metal scrapping since his alleged onset date, and claimant in a
Function Report (8E [(R. 241-52)]) has described a good level of activities
of daily living, which the undersigned finds contradicts Dr. Schemmel’s
caution against sustained activity. In addition, global assessment of
functioning scores of 50-60, which appear in Dr. Schemmel [sic] treatment
notes as well as the consultative examination report, show only a moderate
impairment in functioning and should not be considered as demonstrating
disability. Therefore, the undersigned cannot give great weight to Dr.
Schemmel’s statement that claimant cannot engage in sustained gainful
activity. By comparison, the medical source statements of the State Agency
medical consultant, Robert Blum PhD, set forth moderate limitations in
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some areas of functioning, which is [sic] consistent with the underlying
global assessment of functioning scores but, [sic] as pointed out by Dr.
Blum, is consistent with claimant’s acknowledged good level of activities
of daily living, including driving, shopping, doing household chores, using
a computer and preparing meals, Therefore, the undersigned finds that Dr.
Blum’s medical source statements are entitled to significant weight as they
are based on a consideration of the medical evidence as a whole. (8F, 9F
[(R. 441-58)])
(R. 19-20).
B.

Standard for Evaluating Medical Opinions

“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [a
claimant’s] impairment(s) including [claimant’s] symptoms, diagnosis and prognosis.”
20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Such opinions may not be ignored and,
unless a treating source opinion is given controlling weight, all medical opinions will be
evaluated by the Commissioner in accordance with factors contained in the regulations.
Id. §§ 404.1527(d), 416.927(d); SSR 96-5p, West’s Soc. Sec. Reporting Serv., Rulings
123-24 (Supp. 2011). A physician or psychologist who has treated a patient frequently
over an extended period of time (a treating source)2 is expected to have greater insight

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The regulations define three types of “acceptable medical sources:”

“Treating source:” an “acceptable medical source” who has provided the claimant
with medical treatment or evaluation in an ongoing treatment relationship. 20 C.F.R.
§§ 404.1502, 416.902.
“Nontreating source:” an “acceptable medical source” who has examined the
claimant, but never had a treatment relationship. Id.
“Nonexamining source:” an “acceptable medical source” who has not examined
the claimant, but provides a medical opinion. Id.
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into the patient’s medical condition, and his opinion is generally entitled to “particular
weight.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). But, “the opinion of an
examining physician [(a nontreating source)] who only saw the claimant once is not
entitled to the sort of deferential treatment accorded to a treating physician’s opinion.”
Id. at 763 (citing Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995)). However, opinions
of nontreating sources are generally given more weight than the opinions of
nonexamining sources who have merely reviewed the medical record. Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004); Talbot v. Heckler, 814 F.2d 1456, 1463
(10th Cir. 1987) (citing Broadbent v. Harris, 698 F.2d 407, 412 (10th Cir. 1983), Whitney
v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982), and Wier ex rel. Wier v. Heckler, 734
F.2d 955, 963 (3d Cir. 1984)).
“If [the Commissioner] find[s] that a treating source’s opinion on the issue(s) of
the nature and severity of [the claimant’s] impairment(s) [(1)] is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and [(2)] is not
inconsistent with the other substantial evidence in [claimant’s] case record, [the
Commissioner] will give it controlling weight.” 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2); see also, SSR 96-2p, West’s Soc. Sec. Reporting Serv., Rulings 111-15
(Supp. 2013) (“Giving Controlling Weight to Treating Source Medical Opinions”).
The Tenth Circuit has explained the nature of the inquiry regarding a treating
source’s medical opinion. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003)
(citing SSR 96-2p). The ALJ first determines “whether the opinion is ‘well-supported by
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medically acceptable clinical and laboratory diagnostic techniques.’” Id. at 1300 (quoting
SSR 96-2p). If the opinion is well-supported, the ALJ must confirm that the opinion is
also consistent with other substantial evidence in the record. Id. “[I]f the opinion is
deficient in either of these respects, then it is not entitled to controlling weight.” Id.
If the treating source opinion is not given controlling weight, the inquiry does not
end. Id. A treating source opinion is “still entitled to deference and must be weighed
using all of the factors provided in 20 C.F.R. § 404.1527 and 416.927.” Id. Those factors
are: (1) the length of the treatment relationship and 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. Id. at 1301; 20 C.F.R. §§ 404.1527(d)(2-6), 416.927(d)(2-6); see
also Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (citing Goatcher v.
Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)).
After considering the regulatory factors, the ALJ must give reasons in the decision
for the weight he gives the opinion. Id. 350 F.3d at 1301. “Finally, if the ALJ rejects the
opinion completely, he must then give ‘specific, legitimate reasons’ for doing so.” Id.
(citing Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey v. Bowen, 816
F.2d 508, 513 (10th Cir. 1987)).
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C.

Analysis

Plaintiff is correct that the ALJ failed to consider the GAF scores assigned by Dr.
Schemmel which are in the range of 41-50 and are consistent with the scores assigned by
other treating sources. As Plaintiff points out, Dr. Schemmel assigned a GAF score of 43,
and a “Highest GAF (in past year)” of 55 to Plaintiff in his “Intake-Planning Session”
with Plaintiff on March 15, 2010. (R. 469). Moreover, Plaintiff is also correct that on
March 24, 2010 Dr. Mahar, a treating psychiatrist, assessed Plaintiff with severe,
recurrent, major depressive disorder and a GAF score of 50 (R. 512); on June 15, 2011,
Dr. Karim, another treating psychiatrist assessed a GAF score of 43 (R. 891); and on
August 11, 2011, Plaintiff was assessed a GAF score of 50 by another treating
psychiatrist, Dr. Skirchak. (R. 896). As Plaintiff points out, the Diagnostic and Statistical
Manual of Mental Disorders provides that GAF scores in the range from 41 to 50
indicates “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job),” whereas GAF scores in the range of 51-60
indicates only “Moderate symptoms . . . OR moderate difficulty in social,
occupational, or school functioning.” Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders (hereinafter DSM-IV-TR) 34 (4th ed. text revision 2000).
(emphases in original).
While the Commissioner is correct to point out that GAF scores are designed to be
used by practitioners in making treatment decisions, and that the Commissioner has
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declined to endorse GAF scores for use in disability evaluation, she ignores that the ALJ
in this case specifically relied upon the GAF scores--both in discounting Dr. Schemmel’s
opinion (“global assessment of functioning scores of 50-60, which appear in Dr.
Schemmel [sic] treatment notes as well as the consultative examination report, show only
a moderate impairment in functioning”), and in justifying her decision to accord
substantial weight to Dr. Blum’s opinion (“the medical source statements of the State
Agency medical consultant, Robert Blum PhD, set forth moderate limitations in some
areas of functioning, which is [sic] consistent with the underlying global assessment of
functioning scores”). (R. 20) (emphasis added). Moreover, although the ALJ relied on
GAF scores of “50-60" which she said “show only a moderate impairment in functioning”
(R. 20), her analysis ignored two important factors. First, she ignored that the GAF score
range of 50-60 includes portions of two GAF ranges; 41-50, which relates to serious
impairment, and 51-60 which relates to only moderate impairment. Then, she failed to
acknowledge that Dr. Schemmel, Dr. Mahar, Dr. Karim, and Dr. Skirchak, treating
sources all, assessed GAF scores which were in the range of serious impairment, 41-50,
and that Dr. Schemmel and Dr. Karim each assessed GAF scores of 43, which are within
the lower third of that range. An ALJ (and therefore the Commissioner) cannot have it
both ways, she cannot rely upon GAF scores in the record which tend to support her
decision, while at the same time ignoring those scores which detract from her decision.
And she cannot refuse to acknowledge that certain of the scores upon which she relied are

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equivocal at best. This is error requiring remand for the Commissioner to address all of
the scores and to provide a proper basis for her evaluation of Dr. Schemmel’s opinion.
The court also agrees with Plaintiff that the ALJ rejected Dr. Blum’s opinion that
Plaintiff is moderately limited in the ability to interact appropriately with the general
public but failed explain the basis for doing so even though she purported to accord
substantial weight to Dr. Blum’s opinion. If an ALJ’s RFC assessment conflicts with a
medical source opinion, she must explain why she did not adopt the opinion. SSR 96-8p,
West’s Soc. Sec. Reporting Serv., Rulings 150 (Supp. 2013). As the Commissioner
acknowledges, the ALJ accorded significant weight to Dr. Blum’s opinion. (Comm’r Br.
7) (citing R. 20). And, Dr. Blum opined that Plaintiff is moderately limited in the ability
to interact appropriately with the general public. (R. 456). Yet, the only mental
limitations assessed by the ALJ were that Plaintiff is “limited to understanding,
remembering and completing simple work tasks.” (R. 17). Moreover, the ALJ found that
Plaintiff has only mild difficulties in social functioning. (R. 16). There is at least an
ambiguity between the ALJ’s determination to accord significant weight to Dr. Blum’s
opinion, and the fact that Dr. Blum found Plaintiff limited in his ability to interact with
the public and the ALJ assessed no such limitation. SSR 96-8p requires the ALJ to
explain why she did not adopt Dr. Blum’s opinion and to explain how she resolved the
ambiguity between her assessment of RFC and her determination to accord significant
weight to Dr. Blum’s opinion. West’s Soc. Sec. Reporting Serv., Rulings 149 (Supp.

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2013). Because she did not do so, remand is necessary for the Commissioner to explain
the decision properly.
IT IS THEREFORE ORDERED that the Commissioner’s decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith.
Dated this 19th day of August 2014, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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