Jackson v. Social Security Administration, Commissioner of

Filing 17

MEMORANDUM AND ORDER. The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 5/15/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MELISSA JACKSON,
Plaintiff,
vs.

Case No. 12-1129-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,1
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

1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
1

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

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

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.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

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).
2

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 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.
3

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

the analysis.
Cir. 1993).

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 June 10, 2011, administrative law judge (ALJ) James

Harty issued his decision (R. at 14-24).

Plaintiff alleges that

she has been disabled since July 2, 2009 (R. at 14).

Plaintiff

is insured for disability insurance benefits through December
4

31, 2013 (R. at 16).

At step one, the ALJ found that plaintiff

has not engaged in substantial gainful activity since
plaintiff’s alleged onset date (R. at 16).

At step two, the ALJ

found that plaintiff had the following severe impairments:

post

traumatic stress disorder; bipolar disorder I; personality
disorder, NOS; schizophrenia; anxiety disorder; and rule out
obsessive-compulsive disorder (R. at 17).

At step three, the

ALJ determined that plaintiff’s impairments do not meet or equal
a listed impairment (R. at 17).

After determining plaintiff’s

RFC (R. at 19), the ALJ determined at step four that plaintiff
is unable to perform her past relevant work (R. at 22).

At step

five, the ALJ determined that plaintiff could perform other jobs
that exist in significant numbers in the national economy (R. at
23).

Therefore, the ALJ concluded that plaintiff was not

disabled (R. at 24).
III.

Did the ALJ err at step two by failing to find that

plaintiff’s borderline intellectual functioning is a severe
impairment?
The burden of proof at step two is on the plaintiff.

See

Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993)(the
claimant bears the burden of proof through step four of the
analysis).

A claimant’s showing at step two that he or she has

a severe impairment has been described as “de minimis.”

Hawkins

v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997); see Williams v.
5

Bowen, 844 F.2d 748, 751 (10th Cir. 1988)(“de minimis showing of
medical severity”).

A claimant need only be able to show at

this level that the impairment would have more than a minimal
effect on his or her ability to do basic work activities.
Williams, 844 F.2d at 751.

However, the claimant must show more

than the mere presence of a condition or ailment.

If the

medical severity of a claimant’s impairments is so slight that
the impairments could not interfere with or have a serious
impact on the claimant’s ability to do basic work activities,
the impairments do not prevent the claimant from engaging in
substantial work activity.

Thus, at step two, the ALJ looks at

the claimant’s impairment or combination of impairments only and
determines the impact the impairment would have on his or her
ability to work.
Cir. 1997).

Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th

A claimant must provide medical evidence that he or

she had an impairment and how severe it was during the time the
claimant alleges they were disabled.

20 C.F.R. § 404.1512(c), §

416.912(c).
In his report, Dr. Moeller stated that the WAIS-IV
(Wechsler Adult Intelligence Scale-IV) test showed that
plaintiff was in the borderline range of intelligence (R. at
420, 414).

However, Dr. Moeller did not diagnose plaintiff with

borderline intellectual functioning, as noted by the ALJ (R. at
421, 20).

In addition, Dr. Moeller never indicated that this
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impairment would have more than a minimal impact on plaintiff’s
ability to work.

Furthermore, plaintiff does not cite to any

evidence that this impairment would have more than a minimal
impact on plaintiff’s ability to work.

For these reasons, the

court finds that the ALJ did not err by failing to include this
limitation as a severe impairment at step two.
Furthermore, once the ALJ finds that the claimant has any
severe impairment, he has satisfied the analysis for purposes of
step two.

The ALJ’s failure to find that additional alleged

impairments are also severe is not in itself cause for reversal.
However, the ALJ, in determining plaintiff’s RFC, must consider
the effects of all of the claimant’s medically determinable
impairments, both those he deems “severe” and those “not
severe.”

Hill v. Astrue, 289 Fed. Appx. 289, 291-292 (10th Cir.

Aug. 12, 2008); Dray v. Astrue, 353 Fed. Appx. 147, 149 (10th
Cir. Nov. 17, 2009).
In making his RFC findings, the ALJ stated that he
considered all symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective
medical evidence and other evidence; the ALJ also stated that he
considered the opinion evidence (R. at 19).

Furthermore, the

ALJ indicated that in making his RFC findings, he “must consider
all of the claimant’s impairments, including impairments that
are not severe” (R. at 16).

In light of the fact that the ALJ
7

found other severe impairments at step two, considered all
symptoms and evidence when making RFC findings for the
plaintiff, considered all of plaintiff’s impairments, including
non-severe impairments when making his RFC findings, and the
failure of plaintiff to cite to any medical opinion evidence
that plaintiff has limitations from borderline intellectual
functioning that were not included in the ALJ’s RFC findings,
the court finds that the ALJ did not err by failing to include
borderline intellectual functioning as a severe impairment at
step two.
IV.

Are the ALJ’s RFC findings supported by substantial

evidence?
According to SSR 96-8p, the RFC assessment “must include a
narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts...and nonmedical
evidence.”

The ALJ must explain how any material

inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.

The RFC assessment must

always consider and address medical source opinions.

If the RFC

assessment conflicts with an opinion from a medical source, the
ALJ must explain why the opinion was not adopted.
1996 WL 374184 at *7.

SSR 96-8p,

SSR rulings are binding on an ALJ.

20

C.F.R. § 402.35(b)(1); Sullivan v. Zebley, 493 U.S. 521, 530
n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed.2d 967 (1990); Nielson
8

v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).

When the ALJ

fails to provide a narrative discussion describing how the
evidence supports each conclusion, citing to specific medical
facts and nonmedical evidence, the court will conclude that his
RFC conclusions are not supported by substantial evidence.

See

Southard v. Barnhart, 72 Fed. Appx. 781, 784-785 (10th Cir. July
28, 2003).

The ALJ’s decision must be sufficiently articulated

so that it is capable of meaningful review; the ALJ is charged
with carefully considering all of the relevant evidence and
linking his findings to specific evidence.

Spicer v. Barnhart,

64 Fed. Appx. 173, 177-178 (10th Cir. May 5, 2003).

It is

insufficient for the ALJ to only generally discuss the evidence,
but fail to relate that evidence to his conclusions.

Cruse v.

U.S. Dept. of Health & Human Services, 49 F.3d 614, 618 (10th
Cir. 1995).

When the ALJ has failed to comply with SSR 96-8p

because he has not linked his RFC determination with specific
evidence in the record, the court cannot adequately assess
whether relevant evidence supports the ALJ’s RFC determination.
Such bare conclusions are beyond meaningful judicial review.
Brown v. Commissioner of the Social Security Administration, 245
F. Supp.2d 1175, 1187 (D. Kan. 2003).
The ALJ made the following RFC findings regarding the
plaintiff:

9

…claimant has the residual functional
capacity to perform a full range of work at
all exertional levels but with the following
nonexertional limitations: the claimant is
limited to simple routine repetitive tasks
not performed in a fast-paced production
environment involving only simple work
related decisions and in general relatively
few work place changes. The claimant is
limited to occasional interactions with
coworkers and the general public.
(R. at 19).

Plaintiff argues that the ALJ’s RFC is not

supported by the evidence.
On April 5, 2011, Dr. Moeller prepared a psychological
evaluation on the plaintiff (R. at 414-424).

Following an

interview, an IQ test, and an MMPI test, Dr. Moeller opined that
plaintiff had a GAF score of 45 (R. at 421). (Dr. Moeller
indicated that plaintiff’s GAF score for an extended period of
time would be someplace in the 40’s (R. at 420).

He opined that

plaintiff had a moderate limitation in her ability to carry out
complex instructions and interact appropriately with the public;
he further opined that plaintiff had marked limitations in the
following four categories:
The ability to make judgments on complex
work-related decisions.
Interact appropriately with supervisors(s).
Interact appropriately with co-workers.
Respond appropriately to usual work
situations and to changes in a routine work
setting.

10

(R. at 422-423).
The ALJ stated that the opinions of Dr. Moeller were:
…given limited weight to the extent it is
consistent with the above residual
functional capacity, to the consultative
opinion of Dr. T.A. Moeller who reported
that he did not believe the claimant was
going to make quick improvement over the
next year. Dr. Moeller opined that if the
claimant’s ability to function was viewed
across any extended period of time that her
GAF scores would be somewhere in the 40’s…
The undersigned initially notes that Dr.
Moeller’s opinion is based upon a onetime
examination of the claimant. The
undersigned further notes that the result of
the claimant’s standardized testing resulted
in an invalid protocol, making it impossible
to provide interpretation…Dr. Moeller’s
conclusion that the claimant is markedly
limited in the ability to get along with
supervisors and coworkers appears to be
based on the claimant’s report of difficulty
getting along with people in general and
that she did get into an argument with one
employer. There is little else to support
that portion of Dr. Moeller’s opinion. In
fact, records from the claimant’s group
therapy indicate she was outgoing, actively
participated, and was a leader of the group
(Exhibit 2F, pp. 19-22).
As for Dr. Moeller’s conclusion that the
claimant’s GAF score over an extended period
would have been in the 40’s, is not only
without support, but it is inconsistent with
GAF scores from the claimant’s treating
health provider. The claimant was treated
at Comcare from September 2009 through
September 2010. Her GAF scores ranged from
55 to 59 over this extended period (Exhibits
2F, 7F & 8F). At no time is there
indication that the claimant was functioning
significantly below that level.
11

(R. at 20-21).
Plaintiff’s treatment records from COMCARE show GAF scores
of 55 and 59 (R. at 321, 323, 330, 343, 375, 377, 386, 391).2
Thus, as indicated by the ALJ, the plaintiff’s treatment records
clearly show higher GAF scores than that opined by Dr. Moeller.
Furthermore, as indicated by the ALJ, plaintiff’s treatment
notes state that she actively participated in group discussion,
showed good insight in sharing with others, challenged other
group members appropriately at times or shared possible
boundaries to use in situations presented by others and
verbalized good knowledge of boundaries, was outgoing and often
kept the conversation going, offered encouragement to others,
and was a leader of the group (R. at 336-339).
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and
2

GAF (global assessment of functioning) scores can be found in the Diagnostic and Statistical Manual of Mental
Disorders. The scores in this case represent the following:
51-60: Moderate 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).
41-50: 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)...
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th ed., text revision, American Psychiatric
Association 2000 at 34) (emphasis in original).

12

never examine the claimant.

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).
The ALJ gave greater weight to the treating source opinions

regarding plaintiff’s GAF and her ability to get along with
others.

The ALJ only gave limited weight to the opinions of Dr.

Moeller, a one-time consulting psychologist.

The ALJ clearly

did not err by giving greater weight to treating source
opinions, and by only giving limited weight to the opinions of
the consulting psychologist when formulating plaintiff’s RFC.
Based on the evidence before the ALJ, the ALJ could reasonably
find that plaintiff had some of the limitations set forth in the
report of Dr. Moeller, but that those limitations were not as
severe as indicated by Dr. Moeller.
As noted by the ALJ, Dr. Moeller stated that the MMPI test
resulted in an invalid protocol, making it impossible to provide
interpretation (R. at 21, 420).

Plaintiff argues that the ALJ

should have recontacted Dr. Moeller for clarification
at 10-11).

(Doc. 11

However, under the regulations, effective March 26,

2012, it states that when the evidence is insufficient or
inconsistent, the ALJ may take a number of options, one of which
is that the ALJ “may” recontact the treating source.
13

20 C.F.R.

404.1520b(c); 77 FR 10651.

The court does not find that the

report from Dr. Moeller is insufficient or inconsistent
regarding the invalidity of the MMPI test.

Therefore, the ALJ

did not err by failing to recontact Dr. Moeller.
Plaintiff also argues that the ALJ failed to consider
plaintiff’s non-severe impairments, including obesity and
alcohol dependence when making his RFC findings (Doc. 11 at 8).
However, as noted above, the ALJ indicated that he considered
all of plaintiff’s impairments, including those that are not
severe, and considered all symptoms and evidence when making his
RFC findings.

Furthermore, plaintiff failed to cite to any

medical evidence that these non-severe impairments resulted in
limitations not contained in the ALJ’s RFC findings.

The court

finds no error by the ALJ in regards to this issue.
V.

Did the ALJ err by failing to provide proper credibility

analysis?
Credibility determinations are peculiarly the province of
the finder of fact, and a court will not upset such
determinations when supported by substantial evidence.

However,

findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.
Cir. 1995).

Kepler v. Chater, 68 F.3d 387, 391 (10th

Furthermore, the ALJ cannot ignore evidence

14

favorable to the plaintiff.

Owen v. Chater, 913 F. Supp. 1413,

1420 (D. Kan. 1995).
When analyzing evidence of pain, the court does not require
a formalistic factor-by-factor recitation of the evidence.

So

long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, the ALJ will be deemed to
have satisfied the requirements set forth in Kepler.

White v.

Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).

Furthermore, the ALJ need

not discuss every relevant factor in evaluating pain testimony.
Bates v. Barnhart, 222 F. Supp.2d 1252, 1260 (D. Kan. 2002).

An

ALJ must therefore explain and support with substantial evidence
which part(s) of claimant’s testimony he did not believe and
why.

McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.

2002).

It is error for the ALJ to use standard boilerplate

language which fails to set forth the specific evidence the ALJ
considered in determining that a claimant’s complaints were not
credible.
2004).

Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.

On the other hand, an ALJ’s credibility determination

which does not rest on mere boilerplate language, but which is
linked to specific findings of fact fairly derived from the
record, will be affirmed by the court.
910.

15

White, 287 F.3d at 909-

The court will not reweigh the evidence or substitute its
judgment for that of 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. 2002).

Although the court will

not reweigh the evidence, 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)(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).
the sufficiency of the evidence.

The court can only review

Although the evidence may

support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
The ALJ found plaintiff’s testimony was not supported by
her treatment records (R. at 21-22).
the evidence.

The court will not reweigh

The court finds that the ALJ’s conclusions are

reasonable and consistent with the evidence, including
plaintiff’s treatment records.

The court finds no error in the

ALJ’s credibility analysis.

16

IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 15th day of May, 2013, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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