Synder v. Colvin
Filing
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ORDER sustaining in part and overruling in part Commissioner's 13 Objections; affirming in part and reversing in part 12 Memorandum and Recommendation; granting Pltf's 8 Motion for Summary Judgment; denying Deft's 10 Motion for Summary Judgment; and remanding this case for further consideration consistent with this Order. Signed by District Judge Max O. Cogburn, Jr. on 5/24/17. (ejb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:16-cv-00098-MOC-DLH
KENNETH M. SYNDER,
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Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
ORDER
THIS MATTER is before the court on review of a Memorandum and
Recommendation (#12) issued in this matter. In the Memorandum and Recommendation,
the magistrate judge advised the parties of the right to file objections within 14 days, all in
accordance with 28 U.S.C. § 636(b)(1)(c). The defendant has filed objections within the
time allowed.
FINDINGS and CONCLUSIONS
I.
Introduction
The Federal Magistrates Act of 1979, as amended, provides that “a district court
shall make a de novo determination of those portions of the report or specific proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby
v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). However, “when objections to strictly legal
issues are raised and no factual issues are challenged, de novo review of the record may be
dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Similarly, de novo
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review is not required by the statute “when a party makes general or conclusory objections
that do not direct the court to a specific error in the magistrate judge’s proposed findings
and recommendations.” Id. Moreover, the statute does not on its face require any review
at all of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149
(1985); Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for
the final determination and outcome of the case, and accordingly the court has conducted
a careful review of the magistrate judge’s recommendation.
II.
Defendant’s Objections
Subsequent to Magistrate Judge Howell’s Memorandum and Recommendation, the
defendant timely filed her objections (#13). Specifically, the defendant raises two
objections under the same argument, to wit, that even if the ALJ did err those errors were
harmless. Defendant objects to two findings of the Magistrate Judge related to the treatment
of opinions by Dr. Mukesh Kamdar and the absence of a discussion of Global Assessment
of Functioning (GAF) scores.
Briefly, the court’s task is not to re-weigh the evidence presented to the
Administrative Law Judge (ALJ) or to ascertain whether the petitioner is indeed disabled,
but instead the court is asked whether the ALJ’s findings are supported by substantial
evidence. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Generally, failure by the
Commissioner to consider an entire line of evidence falls well below the minimal level of
articulation required by the Social Security Act. Diaz v. Chater, 55 F.3d 300, 307 (7th Cir.
1995). However, an ALJ is not tasked with the “impossible burden of mentioning every
piece of evidence” that may be placed into the Administrative Record. Phipps v. Colvin,
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No. 3:13-CV-00315-MOC, 2014 WL 31798, at *2 (W.D.N.C. Jan. 6, 2014); Parks v.
Sullivan, 766 F.Supp. 627, 635 (N.D.Ill. 1991).
A.
Dr. Kamdar’s Opinons
A treating physician is a physician who has observed the plaintiff’s condition over
a prolonged period of time. Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983). The
opinion of a treating physician is only entitled to controlling weight if it is supported by
“clinical and laboratory diagnostic techniques,” and is not inconsistent with other
substantial evidence. 20 C.F.R. § 404.1527(d)(2).
If a physician’s opinion is not given controlling weight, then the “factors
listed below” and in paragraphs (d)(3) through (5) used to determine the
amount of weight to be given it are (1) the length of the treatment relationship
and the frequency of examination (“the longer a treating source has treated
you and the more times you have been seen by a treating source, the more
weight we will give to the source’s medical opinion”); (2) the nature and
extent of the treatment relationship; (3) supportability (“the more a medical
source presents relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give that opinion”);
(4) consistency (“the more consistent an opinion is with the record as a
whole, the more weight we will give to that opinion”); and (5) specialization
(“[w]e generally give more weight to the opinion of a specialist about
medical issues related to his or her area of specialty than to the opinion of a
source who is not a specialist”). Id. The regulation also makes clear, however,
that the ultimate determination of disability is reserved for the
Commissioner, and “[a] statement by a medical source that you are ‘disabled’
or ‘unable to work’ does not mean that we will determine that you are
disabled.” 20 C.F.R. § 416.927(e)(1).
Pittman v. Massanari 141 F.Supp.2d 601, *608 (W.D.N.C. 2001). Here, the court finds
that the ALJ properly gave little weight to the treatment source, Dr. Kamdar and adequately
explained that Dr. Kamdar’s findings were not consistent with the record and,
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consequently, not to be afforded controlling weight. As the Court of Appeals for the Fourth
Circuit held:
Thus, “[b]y negative implication, if a physician’s opinion is not supported by
clinical evidence or if it is inconsistent with other substantial evidence, it
should be accorded significantly less weight.” Craig, 76 F.3d at 590. Under
such circumstances, the ALJ holds the discretion to give less weight to the
testimony of a treating physician in the face of persuasive contrary evidence.
Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (citation omitted). The court finds that
the ALJ properly fulfilled his obligation of explaining why he gave the opinion of Dr.
Hume little weight. Defendant’s first objection is, therefore, sustained.
B.
GAF Scores
The GAF scale judges an individual’s level of functioning only at the time of
evaluation. American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental
Disorders, 30 (4th ed. 1994). A GAF score of 51-60 would indicate moderate symptoms
or moderate difficulty in social, occupational, or school functioning. However, “[t]he
mere diagnosis of [an impairment] . . . says nothing about the severity of the condition.”
Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). Instead, there must be evidence that
the impairment also impacted Plaintiff’s ability to perform basic work activities. Rogers
v. Massanari, 226 F. Supp. 2d 1040, 1045 (E.D.Mo. 2002). It is well-established that
GAF scores ranging from even 45 to 50 are not evidence that a claimant’s mental
impairment is vocationally disabling. Sizemore v. Colvin, No. 5:15-CV-00053-MOC,
2016 WL 483140, at *4 (W.D.N.C. Feb. 5, 2016).
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Although the ALJ did not expressly discuss all of plaintiff’s GAF scores, failure to
reference a GAF score is not, standing alone, a sufficient ground to reverse a disability
determination. Sizemore, 2016 WL 483140, at *4; Mitchell v. Astrue, 2:11-CV-56-MR,
2013 WL 678068, at *8 (W.D.N.C. Feb. 25, 2013) (citing Howard v. Comm’r of Soc.
Sec., 276 F.3d 235, 241 (6th Cir. 2002)). A low GAF score is “not an opinion the ALJ
had to address, since it [does] not directly address [a claimant’s] ability to perform workrelated activities.” Leovao v. Astrue, 2:11cv54-MR-DSC, 2012 WL 6189326, at *5
(W.D.N.C. Nov. 14, 2012).
Even so, when a GAF score is provided by a treating source applicable Social
Security procedure would suggest that the ALJ provide at least some explicit or indirect
discussion of that evidence in the opinion. As noted in AM-13066,
For purposes of the Social Security disability programs, when it comes from an
acceptable medical source, a GAF rating is a medical opinion as defined in 20
CFR §§ 404.1527(a)(2) and 416.927(a)(2). An adjudicator considers a GAF score
with all of the relevant evidence in the case file and weighs a GAF rating as
required by 20 CFR §§ 404.1527(c), 416.927(c), and SSR 06–03p ....
....
When case evidence includes a GAF from a treating source and you do not give it
controlling weight, you must provide good reasons in the personalized disability
explanation or decision notice.
“Global Assessment of Functioning (GAF) Evidence in Disability Adjudication.” AM-13066;
See also Kennedy v. Colvin, No. 3:14-CV-665-RJC, 2016 WL 890602, at *4 (W.D.N.C. Mar. 8,
2016). In this case, the ALJ failed to explicitly mention or discuss at least some GAF scores and
did not provide any indication that he even considered the GAF scores much less any discussion
or explanation regarding his treatment of these scores. See Kennedy, 2016 WL 890602, at *4
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(W.D.N.C. Mar. 8, 2016). Certainly, an ALJ need not explicitly reference every GAF score. See
Johnson v. Colvin, No. 6:14–cv–3579, 2016 WL 462430, at *7 (D.S.C. Feb. 8, 2016); Woodbury
v. Colvin, 213 F. Supp. 3d 773, 782 (D.S.C. 2016). An ALJ would need to either explicitly
discuss a GAF score or provide some indication that he or she has at least indirectly considered
the GAF score. Woodbury, at 783. Certainly, this court agrees with the Commissioner that a per
se rule that failure to mention a GAF score would result in remand would be unworkable. See
Clemins v. Astrue, 2014 WL 4093424, at *1-*2 (W.D. Va. Aug. 18, 2014).
While the lack of GAF score by itself would not merit remand, it is of some concern in
light of all the arguments provided in this particular case and especially so when paired with the
first allegation that the ALJ failed to consider treatment source material. Such an allegation, even
if sufficient to demonstrate the overall weight given to the opinion, may undercut the discussion
necessary related to GAF scores. See May v. Colvin, 2016 WL 4917046, at *5 (W.D.N.C. Sept.
13, 2016) (“Where an ALJ fails to mention a GAF score, but thoroughly reviews the evidence
related to such score, such as the medical records in which it is contained, the failure may be
harmless.”) (emphasis added); Woodbury, at 783 (“the ALJ reviewed the very data [Dr. Paul]
Lowe utilized to assign the GAF scores…”) (emphasis added); Clemins, 2014 WL 4093424, at
*2 (“The ALJ fully evaluated the records and treatment notes upon which the GAF scores were
based. The records and treatment notes provided the necessary context for understanding GAF
scores. The numerical scores associated with these records and treatment notes provide little if
any additional information.”) (emphasis added).
While no hard-and-fast rule should be gleaned from this decision, defendant’s objection
is overruled, as relevant Social Security directives indicate that some—explicit or indirect—
discussion of a GAF score from a treatment source would be required. The court is aware that
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this is an active area of disagreement among district courts within the Fourth Circuit. See
Woodbury, at 782-83. While it is unclear how a deeper discussion of the GAF scores could have
changed the outcome, see id. at n. 6, the Fourth Circuit has cautioned against conducting such
factual inquiries. See Fox v. Colvin, 632 Fed.App’x. 750 755 (4th Cir. 2015). As such, the court
will remand the case out of an abundance of caution under the teachings of Fox and in light of
the discussion in Woodbury regarding disagreements across the Circuit regarding treatment
source GAF scores.
ORDER
IT IS, THEREFORE, ORDERED that:
(1)
the Commissioner’s Objections (#13) are SUSTAINED in part and
OVERRULED in part;
(2)
the Memorandum and Recommendation (#12) is AFFIRMED in part and
REVERESED in part;
(3)
Plaintiff’s Motion for Summary Judgment (#8) is GRANTED, defendant’s
Motion for Summary Judgment (#10) is DENIED; and
(4)
this case is REMANDED for further consideration consistent with this
Order.
Signed: May 24, 2017
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