McCune v. Social Security Administration, Commissioner of

Filing 28

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. Signed by U.S. District Senior Judge Sam A. Crow on 9/23/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SCOTT A. McCUNE,
Plaintiff,
vs.

Case No. 13-1207-SAC

CAROLYN W. COLVIN,
Acting 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

1

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).

The claimant's physical or

mental impairment or impairments must be of such severity that
2

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.
the claimant survives step four, the fifth and final step
3

If

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 May 4, 2012, administrative law judge (ALJ) Alison K.

Brookins issued her decision (R. at 9-23).

Plaintiff alleges

that he had been disabled since January 1, 2005 (R. at 9).
Plaintiff meets the insured status requirements for social
security disability benefits through June 30, 2010 (R. at 11).
4

At step one, the ALJ found that plaintiff did not engage in
substantial gainful activity since the alleged onset date (R. at
11).

At step two, the ALJ found that plaintiff had the

following severe impairments:

schizophrenia (paranoid type),

attention deficit hyperactivity disorder (ADHD), impulse control
disorder, and substance abuse (R. at 12).

At step three, the

ALJ determined that plaintiff’s impairments do not meet or equal
a listed impairment (R. at 12).

After determining plaintiff’s

RFC (R. at 14), the ALJ determined at step four that plaintiff
has no past relevant work (R. at 21).

At step five, the ALJ

found that plaintiff can perform jobs that exist in significant
numbers in the national economy (R. at 22).

Therefore, the ALJ

concluded that plaintiff was not disabled (R. at 23).
III.

Did the ALJ err in her consideration of the opinions of

Dr. Lear, plaintiff’s treating psychiatrist?
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
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).
5

When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
source’s reports to see if they outweigh the treating source’s
reports, not the other way around.

Treating source opinions are

given particular weight because of their unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations.

If an ALJ

intends to rely on a nontreating physician or examiner’s
opinion, he must explain the weight he is giving to it.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

Hamlin

The ALJ must

provide a legally sufficient explanation for rejecting the
opinion of treating medical sources in favor of non-examining or
consulting medical sources.

Robinson, 366 F.3d at 1084.

A treating physician’s opinion about the nature and
severity of the claimant’s impairments should be given
controlling weight by the Commissioner if well supported by
clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.
Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).

When a treating physician opinion is not given

controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician opinion.
6

Robinson v.

Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).

A treating

source opinion not entitled to controlling weight is still
entitled to deference and must be weighed using all of the
following factors:
(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.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).
After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.

If the ALJ rejects the opinion completely,

he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
Plaintiff received mental health treatment at COMCARE
between February 24, 2009 and February 28, 2012.

She was seen

by LMSW Compton, ARNP Born, ARNP Harris, ARNP Koehn, Dr. Lear,
LSCSW Belt-Newton, LMSW Mills and Philip Crayton, a substance
abuse counselor (R. at 463-505, 555-574, 595-601, 618-628).

Dr.

Lear saw plaintiff himself on April 7, 2010, September 1, 2010
and February 21, 2012 (R. at 569-572, 596-598, 621-624).

7

Dr.

Lear is a psychiatrist and the medical director of COMCARE (R.
at 613).

On October 6, 2011, Dr. Lear made the following

statement:
Mr. McCune suffers from distorted reality,
hears voices chronically even at his best.
They are sometimes condemning, and they
sometimes direct him to do bad things. He
has severe difficulty completing tasks
because of his deficits in attention and
focus. He is easily distracted. He is also
chronically angry, has angry outbursts, and
blows up at times. He was kicked out of the
Safe Haven homeless shelter because of his
mood swings and anger. He has frequently
lived out of his car. His impulse control
deficits contributed to the incident when he
stole a can of tuna fish and beat up a store
employee.
His symptoms include delusions and
hallucinations, blunt affect, and emotional
withdrawal and isolation. He does have
marked difficulties with activities of daily
living; extreme difficulties with social
functioning and maintaining concentration,
persistence, and pace; and he has repeated
episodes of decompensation, each of extended
duration.
(R. at 613-614, emphasis added).
Dr. Lear completed a mental RFC assessment in which he
found plaintiff markedly impaired in 16 categories and
moderately limited in 4 categories (R. at 615-616).

Dr. Lear

further stated:
It is my opinion that Mr. McCune has been
functioning as I have described at least
since he first came to COMCARE. Such a
condition would not, of course, have sprung

8

forth on the day of his first appointment at
COMCARE.
The opinions expressed here are based both
on my treatment notes, and my specific
recollections and observations, and the
treatment records of others here at COMCARE.
It would not be possible, and I do not
attempt to document everything in my
treatment notes.
(R. at 616-617).
The ALJ for a number of reasons gave “very little weight”
to this opinion (R. at 20-21).

The court will examine many of

those reasons for giving very little weight to the opinions of
Dr. Lear.
The ALJ stated that “Dr. Lear’s recitation of the
claimant’s symptoms appears to rely heavily on the claimant’s
self-report and subjective complaints, despite the suspect
nature of these claims” (R. at 20).

In the case of Langley v.

Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004), the court held:
The ALJ also improperly rejected Dr.
Hjortsvang's opinion based upon his own
speculative conclusion that the report was
based only on claimant's subjective
complaints and was “an act of courtesy to a
patient.” Id. The ALJ had no legal nor
evidentiary basis for either of these
findings. Nothing in Dr. Hjortsvang's
reports indicates he relied only on
claimant's subjective complaints or that his
report was merely an act of courtesy. “In
choosing to reject the treating physician's
assessment, an ALJ may not make speculative
inferences from medical reports and may
reject a treating physician's opinion
outright only on the basis of contradictory
9

medical evidence and not due to his or her
own credibility judgments, speculation or
lay opinion.” McGoffin v. Barnhart, 288 F.3d
1248, 1252 (10th Cir.2002) (quotation
omitted; emphasis in original). And this
court “held years ago that an ALJ's
assertion that a family doctor naturally
advocates his patient's cause is not a good
reason to reject his opinion as a treating
physician.” Id. at 1253.

Subsequently, in the case of Victory v. Barnhart, 121 Fed. Appx.
819 (10th Cir. Feb. 4, 2005), the court held:
The ALJ's finding that Dr. Covington's
opinion was based on claimant's own
subjective report of her symptoms
impermissibly rests on his speculative,
unsupported assumption. See Langley, 373
F.3d at 1121 (holding that ALJ may not
reject a treating physician's opinion based
on speculation). We find no support in the
record for the ALJ's conclusion. Nothing in
Dr. Covington's report indicates that he
based his opinion on claimant's subjective
complaints, and the ALJ's finding ignores
all of Dr. Covington's examinations, medical
tests, and reports. Indeed, the ALJ's
discussion of Dr. Covington omits entirely
his March 22, 2001 examination and report.
His April 3, 2001 statement might well have
been based on his recent first-hand
examination and observation of claimant
during this examination, performed less than
two weeks earlier, rather than on claimant's
subjective complaints, as the ALJ
speculated. See Morales v. Apfel, 225 F.3d
310, 317 (3d Cir.2000) (noting that the
treating physician's opinion may “reflect
expert judgment based on a continuing
observation of the patient's condition over
a prolonged period of time”).
121 Fed. Appx. at 823-824.

10

As Langley makes clear, the ALJ must have a legal or
evidentiary basis for asserting that a medical source report was
based on plaintiff’s subjective complaints.

However, the ALJ

did not cite to either a legal or evidentiary basis for his
assertion that the opinions of Dr. Lear were based solely or
primarily on plaintiff’s subjective complaints.

In fact, Dr.

Lear stated that his opinions were based on his treatment notes
and his specific recollections and observations, and the
treatment records of others at COMCARE (R. at 617).

The

treatment records indicate that plaintiff was seen on 13
occasions at COMCARE between February 2009 and September 2010
(R. at 463-505, 555-574, 595-601).

Dr. Lear relied on the fact

that plaintiff was kicked out of a homeless shelter because of
his mood swings and anger, and an incident in which he stole a
can of tuna fish and beat up a store employee (R. at 613).

The

COMCARE records also show plaintiff on probation for domestic
violence and assault (R. at 557, 569).

COMCARE records from

September 3, 2010 note that plaintiff was kicked out of the
homeless shelter because of an altercation with another resident
(R. at 599).
Furthermore, the practice of psychology is necessarily
dependent, at least in part, on a patient’s subjective
statements.

Thomas v. Barnhart, 147 Fed. Appx. 755, 759-760

(10th Cir. Sept. 2, 2005); Miranda v. Barnhart, 205 Fed. Appx.
11

638, 641 (10th Cir. Aug. 11, 2005).

A psychological opinion may

rest either on observed signs and symptoms or on psychological
tests.

Langley v. Barnhart, 373 F.3d 1116, 1122 (10th Cir.

2004); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.
2004).

The ALJ cannot reject a psychologist’s opinion solely

for the reason that it was based on a claimant’s responses
because such rejection impermissibly substitutes the ALJ’s
judgment for that of the psychologist.

Thomas, 147 Fed. Appx.

at 760; Miranda, 205 Fed. Appx. at 641.
Second, the ALJ asserted that Dr. Lear did not examine
plaintiff between April 2010 and February 2012, and thus had
very little opportunity for the “recollections and observations”
referred to in his opinion (R. at 20).
plaintiff on September 1, 2010.

However, Dr. Lear saw

He found plaintiff’s attention

and concentration were impaired (R. at 596-598).

Plaintiff was

also seen at COMCARE on September 3, 2010 in which plaintiff
reported he was kicked out of the homeless shelter because of an
altercation with another resident (R. at 599-600).
Third, the ALJ states that Dr. Lear makes no explanation
for his findings that plaintiff had marked difficulties with
activities of daily living, extreme difficulties with social
functioning and maintaining concentration, persistence and pace,
and repeated episodes of decompensation.

The ALJ asserts that

he offers no explanation for these conclusions, and further
12

asserts that there is no evidence of “any” episodes of
decompensation (R. at 20).

However, the COMCARE records and the

report from Dr. Lear note he was on probation for domestic
violence and assault, that he was kicked out of the homeless
shelter due to an altercation, and stole a can of tuna fish and
beat up a store employee.

When plaintiff was kicked out of the

homeless shelter, he went to his mother’s home, but she became
upset and called to request assistance; plaintiff ended up going
to a friend’s house (R. at 599-600).

Claimant reported that he

is homeless and has burned a lot of bridges because he is hard
to live with because of his mental illness (R. at 599).
Impaired, limited, only fair, or fair to poor attention and
concentration were noted in numerous treatment records from
2007-2012 (R. at 403, 465, 478 482, 487, 491, 495, 500 570, 596,
622).1

The COMCARE records and Dr. Lear’s report clearly

document difficulties with social functioning; concentration,
persistence and pace; and episodes of decompensation.
Substantial evidence does not support the ALJ’s finding that
there is no explanation for Dr. Lear’s conclusions and that
there is no evidence of decompensation.
Fourth, the ALJ asserts that the “marked” limitations found
by Dr. Lear on the mental RFC assessment do not agree with the

1

At one point, the ALJ stated that nothing was indicated to support Dr. Lear’s finding of impaired attention and
concentration on April 7, 2010 (R. at 19, 570) . However, the medical record shows repeated instances of such
findings by numerous treatment providers.
13

“extreme” limitations previously found by Dr. Lear (R. at 20).
This argument is without merit.

The PRTF form is used to

determine the severity of an impairment at steps 2 and 3 of the
sequential evaluation process.

20 C.F.R. § 404.1520a(c)(4).

claimant is rated in four broad areas.

A

That form has 5 rating

options for the first three areas (activities of daily living,
difficulties in maintaining social functioning, and difficulties
in maintaining concentration, persistence and pace): none, mild,
moderate, marked, and extreme (R. at 523, 585).

Dr. Lear found

plaintiff extremely limited in 2 of those 3 categories (R. at
614).
Dr. Lear then filled out a mental RFC assessment.

This

assessment is used at steps four and five of the sequential
evaluation process. SSR 96-8p, 1996 WL 374184 at *4.

This

assessment rates a claimant in 20 detailed categories, and has 5
rating options: not significantly limited, moderately limited,
markedly limited, no evidence of limitation, and not ratable (R.
at 527-528, 589-590, 615-616).

On that form, Dr. Lear found

plaintiff markedly limited in 16 categories and moderately
limited in 4 categories (R. at 615-616).

As can be seen by

evaluating the assessment form, there is no category of
“extremely” limited.

That category only is on the PRTF form.

For this reason, there is no merit to the ALJ’s contention that

14

extreme limitations found on the PRTF form do not agree with
marked limitations on the more detailed mental RFC assessment.
Fifth, the ALJ discounts the findings of Dr. Lear by noting
that he gave plaintiff a GAF of 542 in February 2012 (R. at 623),
indicating, according to the ALJ, a “significant change” after
Dr. Lear’s last examination.

The ALJ further asserts that it

undermines Dr. Lear’s opinion that plaintiff’s condition was
“largely unchanged” since he first started treatment at COMCARE
(R. at 20, 21).

However, the GAF score of 54 given by Dr. Lear

in February 2012 is the exact same GAF score Dr. Lear gave
plaintiff on the other two occasions he saw the plaintiff, in
April 2010 and September 2010 (R. at 571, 598), and is
consistent with the GAF score of 51 given by COMCARE when
plaintiff was first seen in February 2009 (R. at 464, 467).
There was no “significant change” in plaintiff’s GAF score from
2009-2010.

The relatively stable GAF score would in fact appear

to support Dr. Lear’s opinion that plaintiff’s condition was
relatively unchanged from 2009-2012.

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).

Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th ed., text revision, American Psychiatric
Association 2000 at 34) (emphasis in original).

15

Furthermore, standing alone, a GAF score, which can reflect
social and/or occupational functioning, does not necessarily
evidence whether an impairment seriously interferes with a
claimant’s ability to work.

See Lee v. Barnhart, 117 Fed. Appx.

674, 678 (10th Cir. Dec. 8, 2004).

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 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).
In addition, there is no medical opinion evidence that the
GAF scores do not correlate with the opinions of Dr. Lear.

The

adjudicator is not free to substitute his own medical opinion
for that of a disability claimant’s treatment providers and
other medical sources.
(10th Cir. 2004).

Hamlin v. Barnhart, 365 F.3d 1208, 1221

An ALJ is not entitled to sua sponte render a

medical judgment without some type of support for his
determination.

The ALJ’s duty is to weigh conflicting evidence

and make disability determinations; he is not in a position to
render a medical judgment.

Bolan v. Barnhart, 212 F. Supp.2d

1248, 1262 (D. Kan. 2002).

In the absence of any medical
16

opinion or other evidence indicating that the GAF scores are
inconsistent with the opinions of Dr. Lear, the ALJ overstepped
his bounds into the province of medicine.

Miller v. Chater, 99

F.3d 972, 977 (10th Cir. 1996); Price v. Colvin, Case No. 131055-SAC (D. Kan. March 26, 2014, Doc. 25 at 16-18).
As set forth above, the court found numerous errors in the
ALJ’s assessment of the opinions from Dr. Lear, plaintiff’s
treatment provider, who oversaw plaintiff’s treatment at COMCARE
from 2009-2012.

For this reason, the court finds that

substantial evidence does not support the ALJ’s RFC findings and
determination that plaintiff is not disabled; the court will
remand this case in order for the ALJ to reevaluate the opinions
of Dr. Lear.
IV.

Did the ALJ err in his credibility analysis?
Plaintiff raises other issues, primarily dealing with the

ALJ’s credibility analysis.

The court will not address these

remaining issues in detail because they may be affected by the
ALJ’s resolution of the case on remand after the ALJ properly
evaluates the medical opinions of Dr. Lear.

See Robinson v.

Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004).
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.
17

Dated this 23rd day of September 2014, Topeka, Kansas.

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

18