Gamez v. Colvin

Filing 18

ORDER Affirming the Commissioner's Decision. Signed on 8/19/14 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SANDRA D. GAMEZ,

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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

No. 13-4199-CV-W-DGK-SSA

ORDER AFFIRMING THE COMMISSIONER’S DECISION
Plaintiff Sandra D. Gamez seeks judicial review of the Commissioner of Social
Security’s (“Commissioner”) decision denying her applications for Social Security Disability
Insurance benefits (“SSDI”) under Title II of the Social Security Act, 42 U.S.C. §§ 401–434,
and Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381–
1383f. The Administrative Law Judge (“ALJ”) found Plaintiff had multiple severe impairments
but retained the residual functional capacity (“RFC”) to perform work as a small parts assembler,
hospital products assembler, and electric assembler/light fixture assembler.
Because the ALJ’s opinion is supported by substantial evidence on the record as a whole,
the Commissioner’s decision is AFFIRMED.
Procedural and Factual Background
A complete summary of the record is presented in the parties’ briefs and repeated here
only to the extent necessary.

Plaintiff’s SSDI and SSI applications, as amended, alleged

disability beginning March 30, 2004.

After the Commissioner denied her applications on

November 9, 2006, Plaintiff requested an ALJ hearing. An initial hearing was held on March 5,

2008, and a supplemental hearing was held on August 26, 2009. The ALJ found that Plaintiff
was not disabled on September 28, 2009.
The Social Security Administration Appeals Council granted Plaintiff’s request for
review and remanded the case to another ALJ on December 22, 2010. After holding another
hearing on March 16, 2012, the second ALJ found that Plaintiff was not disabled and issued a
decision to that effect on April 12, 2012. The Appeals Council denied Plaintiff’s request for
review on July 30, 2013, leaving the ALJ’s decision as the Commissioner’s final decision.1
Plaintiff has exhausted all administrative remedies and judicial review is now appropriate under
42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).
Standard of Review
A federal court’s review of the Commissioner’s decision to deny disability benefits is
limited to determining whether the Commissioner’s findings are supported by substantial
evidence on the record as a whole. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011).
Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind
would find it sufficient to support the Commissioner’s decision. Id. In making this assessment,
the court considers evidence that detracts from the Commissioner’s decision, as well as evidence
that supports it. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). The court must “defer
heavily” to the Commissioner’s findings and conclusions. Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir. 2010). The court may reverse the Commissioner’s decision only if it falls outside of the
available zone of choice, and a decision is not outside this zone simply because the court might
have decided the case differently were it the initial finder of fact. Buckner, 646 F.3d at 556.

1

As two ALJs have issued decisions in this case, the Court uses “the ALJ” to refer only to the second ALJ, Dennis
LeBlanc.

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Discussion
The Commissioner follows a five-step sequential evaluation process2 to determine
whether a claimant is disabled, that is, unable to engage in any substantial gainful activity by
reason of a medically determinable impairment that has lasted or can be expected to last for a
continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A).
Plaintiff argues that the ALJ erred in formulating her RFC and in posing a question to the
vocational expert (“VE”). These arguments lack merit.
I.

The ALJ properly formulated Plaintiff’s RFC.
Plaintiff first challenges the ALJ’s RFC finding. A claimant’s RFC is fundamentally a

“medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). In determining this
medical question, the ALJ should accord a treating physician’s opinion controlling weight so
long as it is well-supported by medically acceptable diagnostic techniques and not inconsistent
with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c), 416.927(c); Myers
v. Colvin, 721 F.3d 521, 525 (8th Cir. 2013). Nonetheless, an ALJ may discount or disregard a
treating physician’s opinion where it is inconsistent with other substantial evidence in the record,
such as additional medical evidence or the claimant’s testimony. Myers, 721 F.3d at 525.
Plaintiff specifically argues that the ALJ, in making his RFC determination, erred by
failing to consider: (1) all of her GAF scores; (2) an opinion by J.B. Astrik, M.D.; (3) fluctuation
of her psychotic impairments; and (4) her fibromyalgia impairments.

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“The five-step sequence involves determining whether (1) a claimant’s work activity, if any, amounts to substantial
gainful activity; (2) his impairments, alone or combined, are medically severe; (3) his severe impairments meet or
medically equal a listed impairment; (4) his residual functional capacity precludes his past relevant work; and (5) his
residual functional capacity permits an adjustment to any other work. The evaluation process ends if a
determination of disabled or not disabled can be made at any step.” Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 632
n.1 (8th Cir. 2014); see 20 C.F.R. §§ 404.1520(a)–(g); 416.920(a)–(g). Through Step Four of the analysis the
claimant bears the burden of showing that he is disabled. After the analysis reaches Step Five, the burden shifts to
the Commissioner to show that there are other jobs in the economy that the claimant can perform. King v. Astrue,
564 F.3d 978, 979 n.2 (8th Cir. 2009).

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A. Substantial record evidence supports the ALJ’s decision to discount
Plaintiff’s GAF scores.
Plaintiff first contends that the ALJ failed to properly consider her GAF scores, which
range from 21 to 60 but are mostly in the 45–60 range.3 Low GAF scores have limited probative
value: they do not per se establish disability, see Partee v. Astrue, 638 F.3d 860, 862–63 (8th Cir.
2011), and the Commissioner has declined to endorse their use in determining the requirements
of mental disorders. Revised Medical Criteria for Evaluating Mental Disorders and Traumatic
Brain Injury, 65 Fed. Reg. 50746, 50764–65 (Aug. 21, 2000). Rather, an ALJ “may afford
greater weight to medical evidence and testimony than to GAF scores when the evidence
requires it.” Jones v. Astrue, 619 F.3d 963, 974 (8th Cir. 2010). This means that an ALJ may
discount a GAF score that conflicts with the rest of the assigning physician’s opinion. See
Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996).
The ALJ explicitly discounted all of Plaintiff’s GAF scores below 55 to the extent they
suggest Plaintiff is unable to work. R. at 23–28. Record evidence supports this analysis for two
reasons. First, some GAF scores were assigned in medical reports that elsewhere indicated
Plaintiff had much higher mental functioning. For example, Margaret L. Harlan, Ph.D. and Ellen
Moore, Ph.D. each assigned Plaintiff a GAF score of 21, which indicates delusions and
hallucinations, serious impairment in communication or judgment, or inability to function in
almost all areas. R. at 693, 1061; see Am. Psychiatric Ass’n, Diagnostic and Statistical Manual
of Mental Disorders 34 (4th ed. rev. 2000). However, during those consultations Plaintiff
demonstrated intact cognitive abilities with some deficits in short-term memory and abstract
thinking, was generally well-oriented, could count backwards from twenty by threes, and was
3

The Global Assessment of Functioning (“GAF”) is a numeric scale ranging from 0 to 100, representing the
clinician’s judgment of the individual’s overall level of functioning, not including impairments due to physical or
environmental limitations. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32–34
(4th ed. rev. 2000).

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able to repeat seven digits forward and backwards, which indicates higher cognitive functioning
than a severe GAF score of 21 suggests. R. at 689, 1055–56. Similarly, the GAF score of 35
assigned by Elaine Boyd, A.P.N. is undermined by her contemporaneous findings that Plaintiff
had a euthymic mood, was well-oriented, spoke normally, and demonstrated linear and wellorganized thought processes. R. at 698–99.

These internal inconsistencies deprive the lowest

GAF scores of any significant weight. The same flaw afflicts the GAF scores assigned by five
other examiners. See R. at 24 (highlighting inconsistencies presented by Marlin A. VanSiggern,
L.C.S.W.), 25 (Ali Mehrunissa, M.D.), 26–27 (an individual at Pathways whose signature is
illegible), 27 (Steven Adams, Psy.D.), 27–28 (Brian C. Parsells, D.O.).
Second, other objective medical evidence undermines Plaintiff’s other GAF scores below
55. For example, consultative psychologist Robert Pulcher, Ph.D. (“Dr. Pulcher”), treating
physician Mahesh Patel, M.D. (“Dr. Patel”), and treating psychiatrist Stephen J. O’Neill, M.D.
(“Dr. O’Neill”) each assessed Plaintiff with normal levels of cognitive functioning. R. at 440–
41, 484–86, 557, 560, 562–63.

Dr. Pulcher specifically noted that Plaintiff “did not give

evidence of severe depression or anxiety by affect or other non-verbal scores,” even if she was
“slightly anxious due to her living situation.” R. at 486. Dr. Patel perceived a litany of markers
of moderate mental functioning: clear speech, no psychomotor agitation or retardation, alertness
and attentiveness, fair concentration abilities, full orientation, full memory capabilities, and
logical thought processes. R. at 441. Dr. O’Neill noted that Plaintiff was slightly distracted, but
she was cooperative and her memory was intact. R. at 679. These objective findings of only
moderate mental limitations indicate that Plaintiff’s lowest GAF scores, which are not highly
probative to begin with, do not accurately reflect her overall level of functioning. Accordingly,
substantial record evidence supports the ALJ’s decision to give them little weight.

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B. The ALJ did not err in ignoring a statement by Dr. Astrik.
Next, Plaintiff argues that the ALJ should have discussed an opinion by J.B. Astrik, M.D.
(“Dr. Astrik”) stating, “Her psychiatric condition also will possibl[y] keep her from being able to
do a whole lot of activities.” R. at 839. The ALJ must consider medical opinions that “reflect
judgments about the nature of severity of [a claimant’s] impairment(s), including [her]
symptoms, diagnosis and prognosis, what [she] can still do despite [her] impairment(s), and [her]
physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
Here, Dr. Astrik’s opinion regarding Plaintiff’s mental impairments does not qualify as a
medical opinion worthy of consideration. Dr. Astrik did not discuss what Plaintiff can still do
despite her mental impairments or suggest that Plaintiff’s mental conditions required any specific
limitations. Rather, he vaguely opined only that Plaintiff might be limited in a “whole lot of
activities.” R. at 839. Dr. Astrik also did not say that Plaintiff’s condition would probably keep
her from doing these activities, but rather that it was “possible.” R. at 839. Thus, the ALJ was
not required to consider this opinion under the Regulations.

The Court rejects Plaintiff’s

argument on this point.
C. Substantial record evidence shows that Plaintiff was not credible despite
having a mental illness that might occasionally hide its symptoms.
Plaintiff next challenges how the ALJ handled evidence of mental functioning in light of
her psychotic illnesses. Plaintiff testified that she experiences chronic depression, anxiety, and
significant paranoid ideation. R. at 111, 120, 121–22. The ALJ found that insofar as Plaintiff
was testifying that these impairments restrict her ability to work, she was not credible because, in
part, she demonstrated an ability to work after her alleged disability onset date. R. at 22.
Plaintiff argues that psychotic illnesses like hers “wax and wane over time” and so periods of

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remission are to be expected and thus are not probative of credibility (Doc. 12, at 16). By
holding her work history against her, Plaintiff argues, the ALJ erred.
The ALJ properly discredited Plaintiff’s credibility. When a claimant has a psychotic
illness, occasional symptom-free periods by themselves do not mean that disability has ceased.
Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996) (“[T]otal disability is not incompatible
with alternating phases of active illness.”). However, the ALJ may conclude that the disability is
exaggerated where other substantial evidence in the record complements the symptom-free
periods. Cf. Dreste v. Heckler, 741 F.2d 224, 226 n.2 (8th Cir. 1984) (per curiam) (noting that
the ALJ erred by finding the claimant was not disabled because of periods of psychotic illness
remission, where “overwhelming evidence” helped contradict those periods).
Here, Plaintiff consistently worked for extended periods of time, indicating that her
illness was not going through “alternating phases” of waxing and waning disability. See Andler,
100 F.3d at 1393. Plaintiff was an assistant manager at a fast food restaurant from July 2005
until October 2005, where she “direct[ed] incoming employees to their duties” and “r[a]n
morning reports.” R. at 116–18, 312–13. She worked as a home health aide from 2007 until
2009. R. at 377. Finally, she worked at a nursing home from October 2009 until February 2010,
where she created daily reports. R. at 377–78. Plaintiff’s work history strongly indicates that,
to the extent Plaintiff was testifying that her chronic depression, anxiety, and paranoid ideation
restricted her ability to work, such testimony was not credible.
Further, the ALJ gave other valid reasons for rejecting Plaintiff’s testimony besides her
work history. The ALJ pointed out that Plaintiff has given three different reasons at three
different times why she was fired from her assistant restaurant manager position. R. at 22 (citing
R. at 118, 302, 339). He also seized on Plaintiff’s inconsistent statements regarding her ability to

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perform routine household chores. R. at 22. For instance, Plaintiff testified in 2009 that she was
able to perform multiple household chores each week for an elderly woman while working as a
home health aide from 2007 until 2009. R. at 49–50. However, Plaintiff testified in 2012 that
she has required assistance in completing household chores since 2006, and is unable to perform
chores such as laundering clothes, washing dishes, or vacuuming. R. at 107, 124, 126–27. She
also testified that she left her home health aide job because she could not keep up with her own
household chores while performing them for someone else.

R. at 109.

These stark

inconsistencies are substantial record evidence, so the ALJ properly found Plaintiff incredible on
this additional ground. The Court rejects this point.
D. Plaintiff does not provide enough facts or law to support her fibromyalgia
arguments.
Finally, Plaintiff argues that the ALJ erred in formulating her RFC by discounting the
symptoms of her fibromyalgia. Plaintiff does not indicate even a single limitation caused by
fibromyalgia that the ALJ failed to incorporate into his RFC formulation. Because Plaintiff did
not develop her argument sufficient to guide the Court, it is rejected. See Fed. R. Civ. P.
7(b)(1)(B) (requiring movants to “state with particularity the grounds for seeking the order”);
Vaughn v. King, 167 F.3d 347, 354 (7th Cir. 1999) (“It is not the responsibility of this court to
make arguments for the parties.”).
Plaintiff’s procedural argument fails for the same reason. After the ALJ wrote his
decision but before the Appeals Council issued its order, the Social Security Administration
promulgated Ruling 12-2p, which deals with evaluating fibromyalgia in disability claims. See
SSR 12-2p, 2012 WL 3104869 (July 25, 2012). Plaintiff argues that the Court must remand to
the ALJ because the Appeals Council did not evaluate Plaintiff’s fibromyalgia impairments in
accordance with Ruling 12-2p. However, Plaintiff does not identify any part of the Appeals

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Council’s decision or the ALJ’s decision that suggests Ruling 12-2p was disregarded. Absent
such an argument from Plaintiff, the Court sees no reason to question the Appeals Council’s
preface that it “applied the laws, regulations and rulings in effect as of the date [it] took this
action.” R. at 1. Therefore, the Court finds that Ruling 12-2p was properly considered, and
rejects all of Plaintiff’s fibromyalgia arguments.
II.

The ALJ’s hypothetical question to the VE was proper.
Turning to the ALJ’s Step Five determination, Plaintiff argues that VE’s answer to the

ALJ’s hypothetical question was too deficient to constitute substantial supporting evidence. The
ALJ’s hypothetical question posited a claimant with some mental limitations but who retained
the capacity to “understand, remember and carry out non-detailed two to three-step instructions
in a routine work setting involving few changes, where their interaction with supervisors,
coworkers and the public would be superficial in nature.” R. at 129–30. Plaintiff contends the
hypothetical question should have incorporated the impairments caused by her low GAF scores
and her deficiencies in concentration, persistence, and pace.
First, as discussed above, the ALJ did not find Plaintiff’s low GAF scores probative, and
so did not need to include them in the hypothetical question. See Wildman v. Astrue, 596 F.3d
959, 969 (8th Cir. 2010) (“[T]he ALJ was not obligated to include limitations from opinions he
properly disregarded.”). Second, the ALJ did find that Plaintiff has moderate difficulties in
maintaining concentration, persistence, or pace. R. at 17. Although the hypothetical question
avoided the phrase “deficiencies in concentration, persistence, and pace,” it adequately captured
those limitations by describing a job with “non-detailed” and “routine” work that did not require
frequent contact or unusually close interactions with other people. See Brachtel v. Apfel, 132
F.3d 417, 421 (8th Cir. 1997) (holding that a hypothetical question including the “ability to do

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only simple routine repetitive work, which does not require close attention to detail” sufficiently
described deficiencies of concentration, persistence or pace).
Thus, the VE’s answer that Plaintiff could perform work existing in significant numbers
is substantial evidence supporting the ALJ’s determination at Step Five. Martise v. Astrue, 641
F.3d 909, 927 (8th Cir. 2011).
Conclusion
Because substantial evidence on the record as a whole supports the ALJ’s opinion, the
Commissioner’s decision denying benefits is AFFIRMED.
IT IS SO ORDERED.
Date: August 19, 2014

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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