O'Brien v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 8/5/14. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 13-1150-SAC
CAROLYN W. COLVIN,
Acting Commissioner of
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
The matter has been fully briefed by the
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
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
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
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.
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
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.
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 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
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.”
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.
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.
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
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).
Commissioner meets this burden if the decision is supported by
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).
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);
History of case
On July 11, 2011, administrative law judge (ALJ) Michael R.
Dayton issued his decision (R. at 11-21).
that she had been disabled since April 2, 2008 (R. at 11).
Plaintiff is insured for disability insurance benefits through
December 31, 2009 (R. at 13).
At step one, the ALJ found that
plaintiff did not engage in substantial gainful activity from
April 2, 2008 through December 31, 2009 (R. at 13).
two, the ALJ found that plaintiff had the following severe
morbid obesity, history of left arm fracture,
degenerative joint disease of the lumbar spine, dysthymic
disorder, anxiety disorder not otherwise specified with
obsessive compulsive, panic and generalized anxiety features,
mixed personality disorder and history of polysubstance abuse
dependence currently in remission (R. at 13).
At step three,
the ALJ determined that plaintiff’s impairments do not meet or
equal a listed impairment (R. at 13).
plaintiff’s RFC (R. at 15), the ALJ determined at step four that
plaintiff is unable to perform past relevant work (R. at 19).
At step five, the ALJ found that plaintiff could perform work
that exists in significant numbers in the national economy (R.
Therefore, the ALJ concluded that plaintiff was not
disabled (R. at 21).
Did the ALJ err in the weight given to the opinions of
treating ARNP (advanced registered nurse practitioner) Murphy?
ARNP Murphy prepared a letter dated June 9, 2010 stating
I do not see Joni as being able to hold a
job at the current time, or in the near
future. She continues to be quite depressed
and anxious, and has a number of
psychological issues including obsessions,
anxiety, poor recent memory, and
distractibility…she continues to have a
great deal of anxiety surrounding a number
of life issues. She continue to wash her
hands obsessively, and often rinses her
hands with bleach. She also checks and
rechecks light switches and appliances.
(R. at 329, 341).
On February 2, 2011, ARNP Murphy prepared a
medical source statement-mental, in which she opined that
plaintiff was extremely1 limited in 13 categories, markedly
limited in 3 categories, moderately limited in 2 categories, and
not significantly limited in 2 categories (R. at 348-349).
ALJ gave little weight to these opinions because they were
inconsistent with the longitudinal record and the progress
The ALJ noted that GAF scores were 60 initially, and
then increased to 80, indicting only a slight impairment.2
“Extremely” is defined on the form as meaning an impairment level which precludes useful functioning in this
category (R. at 348).
Plaintiff’s GAF was listed as 60 by ARNP Murphy on Nov. 12, 2008, Feb. 3, 2009, April 7, 2009 and May 20,
2009 (R. at 307, 304, 303, 302). Plaintiff’s GAF rose to 75 on July 7, 2008, and remained there on October 6, 2009,
Jan. 5, 2010, Feb. 10, 2010, April 7, 2010 and June 8, 2010 (R. at 301, 300, 299, 298, 297, 345). ARNP Murphy
indicated that her GAF was at 80 on Oct. 26, 2010 and Dec. 21, 2010 (R. at 344, 343).
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:
71-80: If symptoms are present, they are transient and expectable reactions to psychological
stressors (e.g., difficulty concentrating after family argument); no more than slight impairment
in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).
61-70: Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in
social, occupational, or school functioning...but generally functioning pretty well, has some
meaningful interpersonal relationships.
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) .
ALJ stated that the treatment note of June 8, 2010 indicated
that plaintiff needed only support and maintenance (R. at 18).
In making his RFC findings, the ALJ gave great weight to
the opinions of two non-examining psychological consultants.
Dr. Bergmann-Harms opined on April 28, 2010 that plaintiff was
moderately limited in 5 categories (R. at 323-325); those
limitations are reflected in the ALJ’s RFC findings (R. at 15).
Dr. Fantz affirmed the opinions of Dr. Bergmann-Harms on
September 9, 2010 after his review of the evidence in the file
(R. at 330).
The term “medical sources” refers to both “acceptable
medical sources” and other health care providers who are not
“acceptable medical sources.”
SSR 06-03p, 2006 WL 2329939 at
“Acceptable medical sources” include licensed physicians
and licensed or certified psychologists.
§ 404.1513(a)(1)-(2); 20 C.F.R. § 404.1502.
An ARNP is not an “acceptable medical source” under the
20 C.F.R. § 404.1513(a).
However, evidence from
“other medical sources,” including an ARNP, may be based on
special knowledge of the individual and may provide insight into
the severity of an impairment and how it affects the claimant’s
ability to function.
Opinions from other medical sources are
important and should be evaluated on key issues such as
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th ed., text revision, American Psychiatric
Association 2000 at 34) (emphasis in original).
impairment severity and functional effects, along with the other
relevant evidence in the file.
The fact that an opinion is from
an “acceptable medical source” is a factor that may justify
giving that opinion greater weight than an opinion from a
medical source who is not an “acceptable medical source” because
“acceptable medical sources” are the most qualified health care
However, depending on the particular facts in a
case, and after applying the factors for weighing opinion
evidence, an opinion from a medical source who is not an
“acceptable medical source” may outweigh the opinion of an
“acceptable medical source,” including the medical opinion of a
SSR 06-03p, 2006 WL 2329939 at **2,3,5.
The ALJ clearly relied on the GAF scores as a basis for
giving little weight to the opinions of ARNP Murphy.
Plaintiff’s GAF scores from July 8, 2009 through December 21,
2010 indicate only slight impairments in social, occupational,
or school functioning.
Dr. Bergmann-Harms, in her very detailed
narrative, noted the GAF scores from 60-75 (R. at 320), and also
stated that in February 2010, ARNP Murphy noted that plaintiff
only needed support and maintenance (R. at 320, 298).
scores may be of considerable help to the ALJ in formulating the
RFC, although they are not essential to the RFC’s accuracy.
Harper v. Colvin, 528 Fed. Appx. 887, 891 (10th Cir. July 1,
2013); Petree v. Astrue, 260 Fed. Appx. 33, 42 (10th Cir. Dec.
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).
In making his mental RFC
findings, the ALJ did not err by giving greater weight to the
opinions of acceptable medical sources, especially in light of
the fact that the treatment notes and the GAF scores did not
indicate that plaintiff was extremely limited in numerous areas
Furthermore, unlike Fleetwood v. Barnhart, 211
Fed. Appx. 736, 740 (10th Cir. Jan. 4, 2007), this is not a case
in which the ALJ only relied on a check-the-box form with little
or no explanation for the conclusions reached.
Harms prepared very detailed notes summarizing the evidence and
the basis for her opinions (R. at 320, 325).
By contrast, the
court would note that ARNP Murphy provided no explanation of the
basis for her opinions on the medical source statement-mental
(R. at 348-349).
Did the ALJ err by failing to comply with SSR 96-8p and in
the evaluation of opinions of non-examining medical sources when
making his physical RFC findings?
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
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 rulings are binding on an ALJ.
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
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.
Southard v. Barnhart, 72 Fed. Appx. 781, 784-785 (10th Cir. July
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).
insufficient for the ALJ to only generally discuss the evidence,
but fail to relate that evidence to his conclusions.
U.S. Dept. of Health & Human Services, 49 F.3d 614, 618 (10th
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 only medical opinions regarding plaintiff’s physical
limitations are those of Dr. Eades, a non-examining physician
who prepared a physical RFC on September 13, 2010 (R. at 331338).
The ALJ’s RFC findings adopted the physical limitations
set forth by Dr. Eades (R. at 15).
Dr. Eades provided a summary
of the evidence and evaluated plaintiff’s credibility as a part
of his assessment.
Dr. Eades stated that plaintiff’s alleged
limitations are out of proportion to the objective findings (R.
The ALJ’s opinions regarding plaintiff’s credibility
and activities of daily living are consistent with the opinions
expressed by Dr. Eades.
Furthermore, the court would note that
the ALJ can engage in less extensive analysis where none of the
record medical evidence conflicts with the ALJ’s physical RFC
Wall v. Astrue, 561 F.3d 1048, 1068 (10th Cir.
The court finds that substantial evidence supports the
ALJ’s physical RFC findings.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
Dated this 5th day of August 2014, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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