Swenson v. Social Security Administration, Commissioner of

Filing 21

MEMORANDUM AND ORDER Signed by Chief District Judge Julie A Robinson on 8/10/2017. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CLARISSA J. SWENSON,
Plaintiff,
v.

Case No. 16-1354-JAR

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

MEMORANDUM AND ORDER
Plaintiff Clarissa J. Swenson seeks review of a final decision by the Commissioner of
Social Security (“Commissioner”) denying her application for both disability insurance benefits
and supplemental security income under Titles II and XVI of the Social Security Act.1 Plaintiff
alleges error with regard to the Administrative Law Judge’s (“ALJ”) assessment of her residual
functional capacity (“RFC”). Because the Court finds that Defendant Commissioner’s findings
are not supported by substantial evidence, the Court reverses and remands Defendant’s decision.
I.

Procedural History
Plaintiff applied for disability insurance benefits on June 25, 2013. She also filed a Title

XVI application for supplemental security income on June 27, 2013. Both applications alleged
an onset date of December 28, 2012. The Commissioner denied Plaintiff’s applications upon
initial review and upon consideration. Plaintiff timely requested a hearing before an ALJ. She
appeared and testified at a hearing before ALJ Susan W. Conyers on November 3, 2014.

1

42 U.S.C. §§ 401–434, 1381–1383f.

1

The ALJ issued an unfavorable decision against Plaintiff on January 15, 2015. She
concluded that Plaintiff was not disabled within the meaning of the Act. The Appeals Council
denied Plaintiff’s request for review of the ALJ’s decision, and Plaintiff timely filed an appeal
with this Court pursuant to 42 U.S.C. § 405(g).
II.

Standard for Judicial Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether Defendant’s decision is

supported by substantial evidence in the record as a whole and whether Defendant applied the
correct legal standards.2 The Tenth Circuit has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”3 In the course
of its review, the Court may not re-weigh the evidence or substitute its judgment for that of
Defendant.4
III.

Legal Standards and Analytical Framework
Under the Social Security Act, “disability” means the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental
impairment.”5 An individual “shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.”6 The

2

See Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015).

3

White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001) (quoting Castellano v. Sec’y of Health & Human
Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)).
4

White, 297 F.3d at 905 (citing Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.

5

42 U.S.C. §§ 423(d)(1)(A); 416(i).

6

Id. § 423(d)(2)(A).

1991)).

2

Commissioner has established a five-step sequential evaluation process to determine whether a
claimant is disabled.7 If the ALJ determines the claimant is disabled or not disabled at any step
along the way, the evaluation ends.8
The ALJ determined at step one that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date. She determined at step two that Plaintiff has the following
severe impairments: degenerative disease of the lumbar spine and scoliosis, lumbago, chronic
kidney disease (stage III), and myalgias. She determined at step three that Plaintiff’s
impairments did not meet or equal the severity of one of the listed impairments in 20 CFR 404,
Subpart P, Appendix 1. She determined at step four that Plaintiff was unable to perform her past
relevant work (statement clerk, gas station manager, home health aide, and waitress). At step
five, she determined that Plaintiff has the RFC to perform light work except:
occasionally climb ramps and stairs, but should avoid the climbing of ladders,
ropes, and scaffolds; occasionally stoop, kneel, crouch and crawl; avoid extreme
cold and vibration. She will be off work one-half day per month related to her
physical condition.9
Plaintiff challenges the ALJ’s step two and RFC determinations, arguing the ALJ erred
by: 1) failing to consider fibromyalgia as one of her severe impairments; 2) giving substantial
weight to Dr. Geis’s opinion yet disregarding his opinion that Plaintiff had severe fibromyalgia;
3) giving little weight to a treating nurse’s opinion that Plaintiff’s fibromyalgia rendered her
disabled; 4) concluding her mental impairments were nonsevere; and 5) presenting erroneous
reasons to find Plaintiff not entirely credible.

7

Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993).

8

Id.

9

R. at 160.

3

IV.

Discussion
A.

Fibromyalgia

Fibromyalgia is “a rheumatic disease that causes inflammation of the fibrous connective
tissue components of muscles, tendons, ligaments and other tissue.”10 “It is a chronic condition,
causing ‘long-term but variable levels of muscle and joint pain, stiffness[,] and fatigue.’”11 The
Tenth Circuit has said that fibromyalgia is a disease “poorly-understood within much of the
medical community.”12
Its cause or causes are unknown, there is no cure, and, of greatest importance to
disability law, its symptoms are entirely subjective. There are no laboratory tests
for the presence or severity of fibromyalgia. The principal symptoms are pain all
over, fatigue, disturbed sleep, stiffness, and—the only symptom that discriminates
between it and other diseases of a rheumatic character—multiple tender spots,
more precisely 18 fixed locations on the body (and the rule of thumb is that the
patient must have at least 11 of them to be diagnosed as having fibromyalgia) that
when pressed firmly cause the patient to flinch.13
Plaintiff contends that the ALJ erred by failing to consider her fibromyalgia, a severe,
medically determinable impairment (“MDI”). She claims that this failure infected the ALJ’s
credibility and limitations analysis. Defendant argues the ALJ reasonably did not find medically
determinable fibromyalgia given: 1) Dr. Decker’s fibromyalgia testing and diagnosis was not
done during the relevant period; 2) more current relevant records indicated myalgia and
successful treatment with medication; 3) Dr. Henry’s finding of normal motor strength; and
4) Dr. Geis’ finding of “fibromyalgia currently improved.”14

10

Brown v. Barnhart, 182 F. App’x 771, 774 n.1 (10th Cir. 2006) (quoting Benecke v. Barnhart, 379 F.3d
587, 589 (9th Cir. 2004)).
11

Id. (quoting Brosnahan v. Barnhart, 336 F.3d 671, 672 n.1 (8th Cir. 2003)).

12

Id. (quoting Benecke, 379 F.3d at 590.).

13

Id. (quoting Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)).

14

R. at 260; Doc. 17 at 11–12.

4

The ALJ made two specific findings regarding fibromyalgia: 1) “[a]lthough the claimant
has reported a diagnosis of fibromyalgia, [the treatment records at Prairie Star Health Center and
Hutchinson Clinic] generally document myalgia with Lyrica prescribed,”15 and 2) “[a]lthough
the claimant has reported a history of fibromyalgia, the record does not include fibromyalgia
testing.”16 The evidence, however, does not support the ALJ’s fibromyalgia findings.
First, the ALJ selectively assessed Plaintiff’s treatment records at Prairie Star Health
Center and Hutchinson Clinic. These records included assessment and treatment of both myalgia
and fibromyalgia. Although the treatment provider, Autumn Wilgers, APRN, coded Plaintiff’s
problem as “myalgia and myositis unspecified,” she also included assessment and treatment for
fibromyalgia.17 For example, on December 27, 2012, Plaintiff presented for a follow-up
regarding her complaints of pain, depression, and anxiety.18 She reported having been without
medication for a month, experiencing pain all the way down her legs, cramping feet, disturbed
sleep due to her pains, anxiety, and depression. Wilgers’ assessment included essential
hypertension, depression with anxiety, and fibromyalgia.19 The treatment plan included, inter
alia, Cymbalta, a drug commonly used to treat depression and fibromyalgia.20 The ALJ thus
erred in her assessment of these records.
The ALJ also ignored that these records included physical and objective findings of
fibromyalgia. On February 15, 2013, Wilgers noted: “[t]he lumbar/lumbosacral spine exhibited

15

R. at 161.

16

R. at 163.

17

R. at 543, 554, 559-60, and 568.

18

R. at 559.

19

R. at 560.

20

Id.; WebMD, http://www.webmd.com/fibromyalgia/guide/cymbalta-for-fibromyalgia-treatment#1
(Cymbalta is an antidepressant used for the treatment of fibromyalgia.) (visited August 9, 2017).

5

abnormalities tender throughout entire spine, worse in lower back.”21 Likewise, on March 14,
2013, Wilgers reported “[t]he thoracic spine showed abnormalities tender and the
lumbar/lumbosacral spine exhibited abnormalities tender.”22 On October 10, 2013, Wilgers
identified clinical findings and objective signs for Plaintiff’s diagnosed conditions as “lumbago,
[degenerative disc disease], slow gait, tender spots to shoulders, chest, low back, + straight leg
raise.”23 “Clinical signs and symptoms supporting a diagnosis of fibromyalgia under the
American College of Rheumatology Guidelines include ‘primarily widespread pain in all four
quadrants of the body and at least 11 of the 18 specified tender points on the body.’”24 Indeed,
Plaintiff’s treatment notes repeatedly referenced her pain, as well as prescribed medications for
pain, such as Morphine, Percocet, Lortab, Flexeril, Cymbalta, Lyrica, Amitriptyline, Tramadol,
and Savella. They also repeatedly documented that Plaintiff experiences pain in various parts of
her body, back, shoulders, and legs, as well as dizziness, migraines, difficulty in sleeping,
fatigue, multiple tender spots, and depression.
Second, the reason why the record at the time of the ALJ’s decision did not include
fibromyalgia testing was due to the ALJ’s discounting of Plaintiff’s testimony regarding
diagnosis. Plaintiff testified that Dr. James Decker diagnosed her with fibromyalgia sometime in
in 2007.25 The ALJ erred by not expanding the record to obtain Dr. Decker’s records before
issuing her decision.26 Dr. Decker’s records show he examined Plaintiff’s tender points on

21

R. at 554.

22

R. at 550.

23

R. at 588.

24

Brown v. Barnhart, 182 F. App’x 771, 774 n.1 (10th Cir. 2006) (quoting Green–Younger v. Barnhart,
335 F.3d 99, 107 (2d Cir. 2003)).
25

R. at 195.

26

Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996) (“An ALJ has the duty to develop the record by
obtaining pertinent, available medical records which come to his attention during the course of the hearing.”); North

6

September 4, 2007, and found at least 18 different areas of tenderness.27 Based on those
findings, Dr. Decker diagnosed Plaintiff with fibromyalgia and prescribed Cymbalta to help with
her depression and fibromyalgia.28 He treated Plaintiff for various problems, including
fibromyalgia, until April 2011.29 The current record thus directly contradicts the ALJ’s findings
of no fibromyalgia testing and no fibromyalgia diagnosis.
The ALJ therefore erred by not according severe-MDI status to Plaintiff’s fibromyalgia.
Even Dr. Geis, the state-agency medical consultant, accorded severe-MDI status to Plaintiff’s
fibromyalgia, yet the ALJ inexplicably disregarded this finding, despite giving Dr. Geis’ opinion
substantial weight.30
B.

Nurse Wilgers’ Opinion

Plaintiff argues that having failed to consider her fibromyalgia as a severe-MDI, the ALJ
erroneously discounted Wilgers’ opinion that Plaintiff would be unable to sustain competitive
employment.31 Wilgers opined that Plaintiff would likely miss work four or more times a month,
was limited to lifting less than 10 pounds frequently, could sit about 2 hours and stand or walk
about 2 hours in an 8 hour day, and could never twist, stoop, climb, crouch, crawl, pull, push,
work overhead, or walk up an incline.32 The ALJ gave “little weight” to Wilgers’ opinion

v. Colvin, Case No. 13-1372-JAR, 2015 WL 197369, at *4 (D. Kan. Jan. 14, 2015) (finding ALJ should have
expanded the record to obtain records to support the plaintiff’s statement that she had been diagnosed with
fibromyalgia years ago).
27

R. at 793. Plaintiff submitted Dr. Decker’s records to the Appeals Council on April 21, 2016, after the
issuance of the ALJ decision. R. at 749. See O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994) (holding that
“new evidence becomes part of the administrative record to be considered when evaluating the [Commissioner]'s
decision for substantial evidence”); Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004) (same).
28

R. at 793.

29

R. at 764-66, 769, 776, 776-78, 785, and 793.

30

R. at 256.

31

R. at 589, ¶ 14.

32

R. at 590–93.

7

because: 1) she provided extreme limitations despite giving a good prognosis; 2) the limitations
were not reflected in her treatment notes; 3) her opinion appeared to be based solely upon
Plaintiff’s subjective complaints; and 4) her referrals for various tests resulted in normal or
unremarkable results.
The Court finds the ALJ’s assessment of Wilgers’ opinion flawed. First, the relationship
between prognosis and limitations are not necessarily direct. A person may have a severe
limitation, but may improve with treatment, supporting a good prognosis. Second, although
Wilgers’ assessment relied upon Plaintiff’s subjective complaints, she also included clinical
findings and objective signs — “lumbago, degenerative disc disease, slow gait, tender spots to
shoulders, chest, low back, + straight leg raise.”33 Thus, Wilgers’ RFC assessment was not
based solely on Plaintiff’s subjective complaints. Even if it was, her assessment should not be
rejected for that reason. As discussed above, symptoms for fibromyalgia are generally
subjective. And it is common for fibromyalgia sufferers to have normal muscle strength, sensory
functions, reflexes, and lab results.34 Discounting Wilgers’ opinion for this reason indicates a
fundamental misunderstanding of fibromyalgia.35
Moreover, to the extent the ALJ suggests that Wilgers provided a disabled opinion
because Plaintiff asked her to complete the RFC questionnaire, the Court finds no basis for that

33

R. at 588, ¶ 7.

34

Moore v. Barnhart, 114 F. App’x 983, 991–92 (10th Cir. 2004) (stating patients with fibromyalgia
usually look healthy; their joints, muscle strength, sensory functions and reflexes appear normal).
35

Id. at 992 (finding the ALJ did not properly analyze Dr. McKinney’s opinions because the ALJ did not
fully understand the nature of plaintiff’s diagnosed condition by requiring objective evidence of fibromyalgia);
North v. Colvin, Case No. 13-1372-JAR, 2015 WL 197369, at *4 (D. Kan. Jan. 14, 2015) (discrediting a plaintiff’s
complaints of pain, symptoms, and limitations from fibromyalgia because of the lack of clinical evidence indicates a
fundamental misunderstanding of fibromyalgia).

8

speculative conclusion.36 Wilgers’ treatment notes consistently report that Plaintiff complained
of pain in her legs, low back, and feet, as well as migraines, disturbed sleep, and fatigue. And
Wilgers prescribed medication for these symptoms. There is simply no evidence that Wilgers
answered the questionnaire as a courtesy to Plaintiff.
Because the lack of objective medical evidence is not determinative of the severity of
fibromyalgia, the ALJ improperly discounted Wilgers’ opinion due to the lack of objective
medical evidence. The Court therefore reverses and remands for the Commissioner to reevaluate
the medical opinions in light of the diagnosis of fibromyalgia and the case law governing the
consideration of fibromyalgia.37
C.

Credibility Determination

“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.”38 Furthermore, an ALJ cannot ignore evidence favorable to
the plaintiff.39
As support for finding Plaintiff not entirely credible, the ALJ relied upon Plaintiff’s
activities of daily living to find that there was not substantial evidence to support her allegations
of disabling pain and functional limitations. The ALJ found that Plaintiff’s daily activities were

36

Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004) (finding the ALJ improperly rejected treating
physician 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.”).
37

Hollinger v. Colvin, No. 13-1468-KHV, 2015 WL 2449581, at *8 (D. Kan. May 22, 2015) (finding the
ALJ improperly discounted nurse practitioner’s opinion regarding limitations due to fibromyalgia because of the
lack of objective medical evidence).
38

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotations and citations omitted).

39

Id. at 390.

9

not significantly limited because she was able to live alone and care for herself, pets, and her
home. She cooks and does the light housekeeping chores. Although the nature of daily activities
is one of many factors to be considered by the ALJ when determining the credibility of testimony
regarding pain or limitations,40 the ALJ must keep in mind that the sporadic performance of
household tasks or work does not establish that a person is capable of engaging in substantial
gainful activity.41 Moreover, the ALJ may not ignore the qualifications and limitations Plaintiff
reported. Although the ALJ noted that Plaintiff reported her children dropped by daily to do
heavier tasks such as vacuuming, bathing the dog, scrubbing, and grocery shopping, she assigned
no significance to Plaintiff’s need for assistance. But her children’s help was so necessary that
when her children were unable to assist her for a month, Plaintiff traveled to Minnesota where
her mother could help her that month.42 The ALJ inexplicably mischaracterized the trip to
Minnesota as vacation. In the present case, any reliance on Plaintiff’s “daily activities” to
undercut her allegation of pain is misplaced. Plaintiff’s lifestyle does not contradict a claim of
disabling pain.
The ALJ also noted several inconsistencies in Plaintiff’s testimony to support her
incredibility finding. But the ALJ’s assessment ignored pertinent testimony. For example, the
ALJ first pointed out that Plaintiff had reported that her children do the shopping, but she also
reported the ability to get out, shop, drive, and handle her finances. Plaintiff, however, testified
that although she can drive, she does not do so very often and limits it to picking up her
prescriptions and shopping at the convenience store. Second, the ALJ found Plaintiff’s
testimony that she is limited to sitting about 15 to 20 minutes, standing about 15 to 20 minutes,

40

Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993).

41

Krauser v. Astrue, 638 F.3d 1324, 1332–33 (10th Cir. 2011); Thompson, 987 F.2d at 1490.

42

R. at 187–88.

10

and walking 1 to 1 ½ blocks inconsistent with her report of walking for exercise and traveling to
Minnesota by car. The ALJ, however, ignored Plaintiff’s explanation that she made several
stops and stayed overnight two nights to get to Minnesota, a trip that normally takes about ten
hours by car.43 The ALJ also ignored Plaintiff’s testimony that she “walks [for exercise] on the
days that my back doesn’t hurt so bad.”44 The ALJ did not ask how often Plaintiff walked for
exercise. More surprisingly, the ALJ ignored her own observations at the administrative hearing
regarding Plaintiff’s ability to sit — “I know you’ve been having a lot of difficulty sitting still
here today. . . I see you fidgeting, and standing, and that’s all right.”45
The ALJ further supported her incredibility finding by noting Plaintiff is not always
compliant with her medication and has failed to stop smoking despite repeated advice to do so.
Plaintiff correctly recites that before the ALJ may use Plaintiff’s noncompliance with prescribed
treatment to support an incredibility finding, she must consider the four-part test developed in
Frey v. Bowen:46 “(1) whether the treatment at issue would restore claimant’s ability to work;
(2) whether the treatment was prescribed; (3) whether the treatment was refused; and, if so,
(4) whether the refusal was without justifiable excuse.”47 The ALJ did not consider all four Frey
factors and thus may not rely upon Plaintiff’s noncompliance with prescribed treatment to
undermine her credibility.48

43

R. at 187.

44

R. at 198.

45

R. at 205.

46

Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987).

47

Id. at 517.

48

Branstetter v. Colvin, No. 13-CV-1275-DDC, 2014 WL 3700976, at *10 (D. Kan. July 25, 2014) (court
refused to affirm the ALJ’s findings that plaintiff’s limited health treatment affects plaintiff’s credibility due to
failure to consider Frey factors); King v. Colvin, No. 12–1116–JWL, 2013 WL 1624826, at *3 (D. Kan. Apr. 15,
2013) (Frey test is applicable where an ALJ is evaluating the credibility of the claimant’s allegations).

11

The ALJ also supported her incredibility finding by noting Plaintiff’s former employer,
KAPS Inc., reported that she ended her employment voluntarily due to relocation and not due to
impairment. But Plaintiff quit her job at KAPS in July 2012 and did not allege that she was
disabled during that time or immediately thereafter. Plaintiff alleged disability upon her
termination from her employment with Kroger in December 2012. And Kroger confirmed it
terminated her employment for not performing at an acceptable level.49 Thus, the ALJ
erroneously found “[t]he evidence indicates that the claimant had a good work history ending in
2012 due to relocation and not due to impairment.”50
The Court is well aware that credibility determinations are normally binding.51
Nevertheless, in the instant case, the ALJ’s findings supporting her determinations as to
Plaintiff’s credibility are often inconsistent with the evidence in the record. As was the case in
Sitsler,52 the ALJ in this case mischaracterized the extent of Plaintiff’s daily activities, ignoring
the numerous qualifications and limitations she consistently reported. The Court will not
speculate regarding the impact of this mischaracterization on the ALJ’s RFC findings. The
Court therefore reverses and remands the decision of the Commissioner. On remand, the
Commissioner is directed to properly evaluate the evidence with respect to Plaintiff’s credibility,
and make new RFC findings after considering Plaintiff’s statements regarding the qualifications
and limitations in her daily activities.

49

R. at 423.

50

R. at 164.

51

Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983).

52

Sitsler v. Astrue, 410 F. App’x. 112 (10th Cir. 2011).

12

D.

Mental Impairments

The ALJ found “[Plaintiff’s] medically determinable mental impairments of depression,
considered singly and in combination, do not cause more than minimal limitations in [Plaintiff’s]
ability to perform basic mental work activities and are therefore nonsevere.”53 In so finding, the
ALJ considered the four broad functional areas for evaluating mental disorders and concluded
that Plaintiff had no more than mild restrictions for activities of daily living, social functioning,
and maintaining concentration, persistence, or pace, with no episodes of decompensation.54
Plaintiff argues that the ALJ erroneously evaluated her mental impairment because:
1) she gave substantial weight to Drs. Fantz and Stern’s opinions even though these reviewing
physicians did not consider Plaintiff’s later treatment records; 2) Plaintiff’s Global Assessment
of Function (“GAF”) scores of 52 and 47 indicate her mental impairment was severe; 3) she did
not explain how Plaintiff’s termination of treatment at Horizons Mental Health mitigated her low
GAF scores; and 4) she failed to provide citations to support her finding that mental treatment
notes did not indicate significant concerns and that Plaintiff reported “doing well.”55 The Court
finds these arguments unavailing.
First, Plaintiff points to nothing in her later treatment records that contradicts Drs.
Koeneman, Fantz, and Stern’s opinions that Plaintiff’s depression was not severe. Besides, the
ALJ did consider the later treatment records as she specifically mentioned them in her decision.

53

R. at 159.

54

Id.

55

Pl.’s Br. at 17-20. Plaintiff reported “doing fairly well” on April 30, 2014, when she saw Dr. Patrick
Fluck. R. at 676.

13

Second, GAF scores do not directly correlate to functional limitations or to the severity of
a mental impairment.56 Moreover, the GAF scores cited by Plaintiff are neither uncontroverted
nor significantly probative.57 Dr. Koeneman’s examination report, to which the ALJ gave
significant weight, assigned Plaintiff a GAF score of 65, contradicting APRN Bagby’s score of
47 and Nicole Devaney’s (a licensed medical family therapist) score of 52. Neither Bagby nor
Devaney indicated how the GAF scores affected Plaintiff’s functional abilities, thus their scores
lack a narrative explanation from the source, making them not significantly probative of an
inability to work.58 Under these circumstances and because the ALJ is not required to discuss
every piece of evidence, the Court finds no error in the ALJ’s failure to discuss the GAF scores
in detail.59
Plaintiff has not provided any medical source opinion that her mental impairments would
have more than a minimal impact on her ability to do basic work activities. By contrast, the ALJ
relied on the medical opinion of Dr. Koeneman that Plaintiff is able to interact adequately with
co-workers and supervisors, is able to understand simple and intermediate instructions, and has
intact concentration.60 The ALJ also relied on the opinions of the state agency medical
consultants, Drs. Fantz and Stern, that her limitations in the functional areas were only mild or

56

Drummond v. Astrue, 895 F. Supp. 2d 1117, 1132 (D. Kan. 2012).

57

See Luttrell v. Astrue, 453 F. App’x. 786, 792 (10th Cir. 2011) (stating ALJ’s failure to consider GAF
scores that were neither uncontroverted nor significantly probative did not merit reversal).
58

See Jackson v. Astrue, No. CIV A 08-2157-CM, 2008 WL 5046378, at *5 (D. Kan. Nov. 24, 2008)
(explaining that GAF score might be based upon social functioning rather than occupational functioning based on
notes indicating that claimant had no friends and described himself as a hermit).
59

Fuller v. Astrue, 766 F. Supp. 2d 1149, 1154 (D. Kan. 2011) (“The record must demonstrate that the ALJ
considered all of the evidence, but he is not required to discuss every piece of relevant evidence.”) (emphasis in
original).
60

R. at 570–72.

14

none, and therefore did not constitute a severe impairment.61 For these reasons, the Court finds
that the ALJ’s determination that Plaintiff’s mental impairments are not severe is supported by
substantial evidence. However, because this case is being remanded for other reasons, Plaintiff
will have an opportunity to obtain medical source evidence that her mental impairments would
have more than a minimal effect on her ability to do basic work activities.
V.

Conclusion
Remand is necessary for the ALJ to consider all of the evidence relevant to Plaintiff’s

RFC assessment (including that evidence provided to the Appeals Council and any evidence
which might be developed on remand), follow the proper legal standards in evaluating Plaintiff’s
pain testimony, including SSR 96-7p and the factors for evaluation of pain testimony as required
by the Tenth Circuit in Luna v. Bowen,62 properly evaluate the medical source opinions (stating
the weight accorded each opinion and why), and assess Plaintiff’s RFC in light of all of the
relevant evidence. The Court does not intend by this opinion to suggest the result that should be
reached on remand.
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.
IT IS SO ORDERED.
Dated: August 10, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

61

Ex. 3A, R. at 225–31; Ex. 7A, R. at 251–63.

62

834 F.2d 161, 164–66 (10th Cir. 1987).

15