Kelton v. Social Security Administration, Commissioner of

Filing 15

MEMORANDUM AND ORDER. The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 9/20/2011. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TONI KELTON,
Plaintiff,
vs.

Case No. 10-1323-SAC

MICHAEL J. ASTRUE,
Commissioner of
Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
The matter has been fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's decision

to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the

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conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a quantitative
exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it really constitutes mere conclusion.
v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Ray

Although the court

is not to reweigh the evidence, the findings of the Commissioner
will not be mechanically accepted.

Nor will the findings be

affirmed by isolating facts and labeling them substantial
evidence, as the court must scrutinize the entire record in
determining whether the Commissioner's conclusions are rational.
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992).

The

court should examine the record as a whole, including whatever in
the record fairly detracts from the weight of the Commissioner's
decision and, on that basis, determine if the substantiality of
the evidence test has been met.

Glenn, 21 F.3d at 984.

The Social Security Act provides that an individual shall be
determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment expected
to result in death or last for a continuous period of twelve
months which prevents the claimant from engaging in substantial
gainful activity (SGA).

The claimant's physical or mental

impairment or impairments must be of such severity that they are
not only unable to perform their previous work but cannot,
considering their age, education, and work experience, engage in

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any other kind of substantial gainful work which exists in the
national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one, the

agency will find non-disability unless the claimant can show that
he or she is not working at a “substantial gainful activity.”

At

step two, the agency will find non-disability unless the claimant
shows that he or she has a “severe impairment,” which is defined
as any “impairment or combination of impairments which
significantly limits [the claimant’s] physical or mental ability
to do basic work activities.”

At step three, the agency

determines whether the impairment which enabled the claimant to
survive step two is on the list of impairments presumed severe
enough to render one disabled.

If the claimant’s impairment does

not meet or equal a listed impairment, the inquiry proceeds to
step four, at which the agency assesses whether the claimant can
do his or her previous work; unless the claimant shows that he or
she cannot perform their previous work, they are determined not
to be disabled.

If the claimant survives step four, the fifth

and final step requires the agency to consider vocational factors
(the claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other

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jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
the analysis.
1993).

Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.

At step five, the burden shifts to the Commissioner to

show that the claimant can perform other work that exists in the
national economy.

Nielson, 992 F.2d at 1120; Thompson v.

Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The Commissioner

meets this burden if the decision is supported by substantial
evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case

On January 8, 2009, administrative law judge (ALJ) Michael
R. Dayton issued his decision (R. at 8-18).

Plaintiff alleges

that she has been disabled since June 15, 2007 (R. at 8).
Plaintiff is insured for disability insurance benefits through
December 31, 2009 (R. at 10).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
her alleged onset date (R. at 10).

At step two, the ALJ found

that plaintiff had the following severe impairments: generalized

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anxiety disorder/social phobia and a history of bipolar disorder
(R. at 10).

At step three, the ALJ determined that plaintiff’s

impairments do not meet or equal a listed impairment (R. at 11).
After determining plaintiff’s RFC (R. at 13), the ALJ found at
step four that plaintiff is unable to perform past relevant work
(R. at 17).

At step five, the ALJ found that plaintiff could

perform other jobs that exist in significant numbers in the
national economy (R. at 17-18).

Therefore, the ALJ concluded

that plaintiff was not disabled (R. at 18).
III.

Are the ALJ’s RFC findings supported by substantial

evidence in the record, including the medical evidence?
Plaintiff argues that the Appeals Council erred by failing
to properly consider the opinions of Dr. Lear, a treating
psychiatrist (Doc. 10 at 4-7).

Plaintiff further argues that the

ALJ erred in his consideration of the opinions of Dr. Dipeolu, a
consulting psychologist (Doc. 10 at 7-10).

In conclusion,

plaintiff contends that the ALJ’s RFC findings are inconsistent
with the medical evidence of record (Doc. 10 at 10).
The ALJ indicated in his RFC findings that plaintiff’s only
limitations were that she must avoid jobs requiring significant
interaction with coworkers and the general public (R. at 13).

In

making this finding, the ALJ gave some weight to the opinions of
Dr. Dipeolu, a consulting psychologist.

In his report, dated

July 18, 2007, Dr. Dipeolu diagnosed plaintiff with social
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phobia, and also mentioned the possibility of bipolar disorder.
He concluded his report as follows:
Ability to Perform Work-Related Functions:
Ms. Kelton was well oriented X3. Her thought
process and content were within normal
limits. She denied hallucinations across all
modalities. Her concentration, fund of
information, level of abstraction, judgment,
insight, and memory were for the most part
within normal limits. Ms. Kelton endorsed
psychological symptoms of social phobia.
Given the nature of this diagnosis, Ms.
Kelton may not be able to engage in work
related functions outside of her home unless
these symptoms are controlled. Also, she will
continue to experience difficulty performing
ADL [activities of daily living] that
requires her to be outside of her home (i.e.,
driving). Ms. Kelton should be able to manage
her finances independently.
(R. at 272).
The ALJ gave the following consideration to Dr. Dipeolu’s
report:
As for the opinion evidence, consulting
psychological examiner Dr. Dipeolu stated
that the claimant exhibited normal thought
process and content, and had normal
concentration, fund of information, level of
abstraction, judgment, insight, and memory.
Based upon the claimant's endorsement of
symptoms of social phobia, Dr. Dipeolu opined
that the claimant might not be able to engage
in work related functions outside of the home
unless these symptoms were controlled. Dr.
Dipeolu also stated that the claimant will
experience difficulty performing daily
activities that require her to be outside of
her home, such as driving (exhibit 4F). The
claimant did not tell Dr. Dipeolu that she
had recently been released from the Women's
recovery program the prior month and that she
had been able to live in a group home without
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reported problem[s]. In addition, Dr. Dipeolu
assigned a GAF score of 66, indicating only
mild symptoms, and contradicting the degree
of limitation reflected in this opinion. Dr.
Dipeolu's opinion has been given substantial
weight in documenting the claimant's moderate
limitations in interacting with others.
However, based upon the claimant's omission
of evidence such as her ability to drive as
needed and her recent stay in a group home
(showing the ability to successfully interact
with others), Dr. Dipeolu's opinion that the
claimant might not be able to work outside of
the home has not been given substantial
weight.
(R. at 16).

The ALJ then summarized the basis for his RFC

findings as follows:
In sum, the claimant simply alleges a greater
degree of debilitation than what objective
evidence can support. The above residual
functional capacity assessment is supported
by the claimant's previous ability to work in
occupations requiring substantial
interactions with the public, such as
waitressing, and by consistent psychological
reports that the claimant had no significant
impairment in the ability to maintain
concentration, persistence, or pace. The
claimant has some limitations in the ability
to interact with others; however, her daily
activities as documented in therapist notes
and earlier statements show that this is only
to a moderate degree. She does not appear to
lead the isolative lifestyle described during
testimony, but credibly avoids more than
superficial interactions with unfamiliar
people and avoids being in crowded areas.
(R. at 16).

In making his RFC findings, the ALJ rejected the

opinion of the state agency consultant who found that plaintiff
did not have a severe mental disorder (R. at 16).

As noted

above, the ALJ gave some weight to the opinion of Dr. Dipeolu.
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The ALJ gave little weight to the opinion of Dr. Dipeolu
that plaintiff might not be able to work outside of the home
because “claimant did not tell Dr. Dipeolu that she had recently
been released from the Women’s recovery program the prior month
and that she had been able to live in a group home without
reported problem[s]” (R. at 16).

The ALJ asserted that

plaintiff’s recent stay in a group home showed “the ability to
successfully interact with others” (R. at 16).

Dr. Dipeolu

evaluated plaintiff on July 18, 2007 (R. at 270).

Plaintiff

testified that she was in an inpatient drug/alcohol treatment
program at the Women’s Recovery Center from April 30, 2007
through June 15, 2007 (R. at 24).

The report from Dr. Dipeolu

states that plaintiff denied any history of substance abuse or
current use (R. at 270).

However, the record in this case does

not contain any medical records pertaining to the inpatient
treatment;1 there is no evidence in the record that plaintiff was
able to live in the group home without reported problems, or that
her stay in the group home showed the ability to successfully
interact with others.
The absence of evidence is not evidence.
Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993).

Thompson v.
Given the

absence of any evidence pertaining to plaintiff’s ability to

1

Plaintiff’s attorney, at the hearing on November 12, 2008,
stated that these records are not in the file (R. at 22-23).
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interact with others while in a group treatment program, the ALJ
simply speculated that her recent stay in a group home showed the
ability to successfully interact with others and without
problems.

An ALJ cannot make speculative inferences given the

absence of any evidence on that subject; furthermore, an ALJ
cannot reject a medical source opinion based on speculation.
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002).

See
The

factual findings of the ALJ should be supported by substantial
evidence in the record.
(10th Cir. 2006).

Madrid v. Barnhart, 447 F.3d 788, 790

In the absence of any evidence to support the

ALJ’s assertion that plaintiff’s recent stay in a group home
showed plaintiff’s ability to successfully interact with others
without problems, the court finds that this was an invalid basis
for discounting Dr. Dipeolu’s opinion that plaintiff might not be
able to work outside the home.
In addition, the ALJ argued that the GAF2 score of 66 given
by Dr. Dipeolu, indicating only mild symptoms, contradicted the
degree of limitation reflected in his opinion (R. at 16).
However, there is no medical opinion evidence that a GAF score of
66 “contradicts” the opinions of Dr. Dipeolu.

The adjudicator is

not free to substitute his/her own medical opinion for that of a

2

GAF (global assessment of functioning) scores can be found
in the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV-TR) (4th ed., text revision, American Psychiatric
Association 2000 at 34).
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medical source opinion.
1221 (10th Cir. 2004).

See Hamlin v. Barnhart, 365 F.3d 1208,
An ALJ may reject a medical source

opinion outright only on the basis of contradictory medical
evidence and not due to the ALJ’s own credibility judgments,
speculation or lay opinion.

See Robinson v. Barnhart, 366 F.3d

1078, 1082 (10th Cir. 2004).
Furthermore, because a GAF score may not relate to a
claimant’s ability to work, the score, standing alone, without
further explanation, does not establish whether or not
plaintiff’s impairment severely interferes with an ability to
perform basic work activities.

See Lee v. Barnhart, 117 Fed.

Appx. 674, 678 (10th Cir. Dec. 8, 2004); Eden v. Barnhart, 109
Fed. Appx. 311, 314 (10th Cir. Sept. 15, 2004).

GAF scores are

not considered absolute determinants of whether or not a claimant
is disabled.

Heinritz v. Barnhart, 191 Fed. Appx. 718, 722 (10th

Cir. Aug. 10, 2006).

There is no medical opinion evidence in

this case indicating that plaintiff, despite severe mental
impairments, is still able to work.

For these reasons, on

remand, the ALJ will need to consider the GAF score given by Dr.
Dipeolu in light of all the medical evidence, including the other
medical opinion evidence in this case.
Following the ALJ decision, plaintiff submitted to the
Appeals Council opinions from Dr. Lear.

Dr. Lear was plaintiff’s

treating psychiatrist from 2005-2007, and saw plaintiff on six

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occasions (R. at 233-234, 235-236, 237-238, 239-241, 246-247,
249).

On March 8, 2006, Dr. Lear stated that plaintiff had

bipolar affective disorder.

He indicated that she is currently

not emotionally stable enough to work, and that her medications
would not assist her in being able to work.

He stated that

plaintiff was irritable and could become verbally aggressive.

He

believed it was possible that plaintiff met the disability
criteria for social security disability (R. at 305-306).

On

January 30, 2007, Dr. Lear again stated that plaintiff’s bipolar
disorder prevented plaintiff from working (R. at 307).

The

Appeals Council indicated that they considered this additional
evidence, but stated that it did not provide a basis for changing
the ALJ’s decision (R. at 1-2).
If, as happened here, the Appeals Council explicitly stated
that it considered the evidence, there is no error, even if the
order contains no further discussion.

Martinez v. Astrue, 389

Fed. Appx. 866, 868-869 (10th Cir. Aug. 3, 2010); see Martinez v.
Barnhart, 444 F.3d 1201, 1207-1208 (10th Cir. 2006)(while an
express analysis of the Appeal’s Council determination would have
been helpful, it is not required).

The court takes the Appeals

Council at its word when it states that it has considered a
matter.

Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.

2005).
However, in evaluating the Commissioner’s denial of benefits

11

under the substantial evidence standard, the district court must
consider qualifying new evidence submitted to the Appeals
Council.

The district court’s very task is to determine whether

the qualifying new evidence upsets the determination of the ALJ
that plaintiff was not disabled, Martinez, 389 Fed. Appx. at 869,
or whether the new evidence submitted to the Appeals Council
provides a basis for changing the ALJ’s decision.

Hardman v.

Barnhart, 362 F.3d 676, 681 (10th Cir. 2004).
As noted above, the court has already found that the ALJ
erred in his rationale for discounting the opinions of Dr.
Dipeolu.

Furthermore, the new evidence submitted to the Appeals

Council is from Dr. Lear, a treatment provider whose opinions are
generally entitled to greater weight.
F.3d 1078, 1084 (10th Cir. 2004).

Robinson v. Barnhart, 366

Dr. Lear’s opinion that

plaintiff cannot work certainly supports the opinion of Dr.
Dipeolu that plaintiff may not be able to work.

Furthermore,

there is no medical opinion evidence indicating that plaintiff is
able to work despite her severe mental impairments.

In light of

the opinions of Dr. Lear and Dr. Dipeolu that plaintiff is or may
be disabled, and the errors by the ALJ in his rationale for
discounting the opinions of Dr. Dipeolu, the court finds that
substantial evidence does not support the ALJ’s determination
that plaintiff is not disabled.
Finally, on remand, the ALJ should also consider the

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opinions of ARNP Donna Powers, who treated plaintiff on nine
occasions between March 6, 2008 and October 14, 2008.

On all

nine occasions, ARNP Powers diagnosed plaintiff with psychotic
disorder.

She indicated on six of those nine visits that

plaintiff had signs of psychotic process, and on four occasions
she found that plaintiff was hallucinating.

On eight of the nine

visits, she found that plaintiff’s social judgment was poor.

She

also noted that plaintiff has a history of assaultive behavior
(R. at 290-304).

Her findings correlate with the opinion of Dr.

Dipeolu that plaintiff’s social phobia might prevent plaintiff
from working, and with Dr. Lear’s opinion that plaintiff was
irritable and could become verbally aggressive.

Furthermore, the

diagnosis of psychotic disorder and hallucinations should also be
considered by the ALJ when determining if plaintiff is able to
work.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 20th day of September 2011, Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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