Owens v. Social Security Administration
Filing
18
OPINION AND ORDER by Magistrate Judge T Lane Wilson (kah, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA,
CHARLOTTE L. OWENS,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant.
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Case No. 10-cv-636-TLW
OPINION AND ORDER
Plaintiff Charlotte L. Owens, pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c),
requests judicial review of the decision of the Commissioner of the Social Security
Administration denying her disability benefits under Titles II and XVI of the Social Security Act
(“Act”). In accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have consented to proceed
before the undersigned United States Magistrate Judge. (Dkt. # 7).
Introduction
When applying for disability benefits, a plaintiff bears the initial burden of proving that
he or she is disabled. 42 U.S.C. § 423(d)(5); 20 C.F.R. §§ 404.1512(a), 416.912(a). “Disabled”
under the Social Security Act is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment.” 42 U.S.C. §
423(d)(1)(A). A disability is a physical or mental impairment “that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423 (d)(3). The evidence establishing
a disability must come from “acceptable medical sources” such as licensed and certified
psychologists and licensed physicians. 20 C.F.R. §§ 404.1513(a), 416.913(a). A plaintiff is
disabled under the Act 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 in the
national economy.” 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a
disability claim. 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750 (10th
Cir. 1988) (setting forth the five steps in detail). “If a determination can be made at any of the
steps that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary.”
Williams, 844 F.2d at 750.
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). Substantial
evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. See id. The Court’s review is
based on the record, and the Court will “meticulously examine the record as a whole, including
anything that may undercut or detract from the ALJ’s findings in order to determine if the
substantiality test has been met.” Id. The Court may neither re-weigh the evidence nor substitute
its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th
Cir. 2005). Even if the Court might have reached a different conclusion, if supported by
substantial evidence, the Commissioner’s decision stands. White v. Barnhart, 287 F.3d 903, 908
(10th Cir. 2002).
2
BACKGROUND
Plaintiff, a thirty-nine-year-old female, filed her applications for disability benefits on
June 29, 2005, alleging an onset date of November 1, 2000. (R. 17, 337). Plaintiff alleged that
her mental health issues, arthritis, and back pain prevented her from working. (R. 117, 399). Her
claim was denied initially on November 15, 2005, and upon reconsideration on August 18, 2006.
(R. 17). On December 20, 2007, plaintiff received a hearing before an administrative law judge
(“ALJ”). (R. 270-94). Following that hearing, the ALJ issued a decision finding that plaintiff was
not disabled. (R. 339-49). After the Appeals Council denied review, plaintiff filed an appeal with
the Court. (R. 357-60).
On appeal, the Commissioner conceded that remand was appropriate in that case because
the administrative law judge (“ALJ”) violated plaintiff’s procedural due process rights.1 (R. 355).
This Court remanded the case to the ALJ for a de novo hearing on June 30, 2009.2 Id. That
hearing was held on December 9, 2009. (R. 521-50). Following the de novo hearing, the ALJ
issued a second decision denying plaintiff’s application for disability benefits on January 20,
2010. (R. 327). The Appeals Council denied review, and plaintiff filed this appeal with the
Court. (R. 350).
1
At the conclusion of the hearing on December 20, 2007, the ALJ determined that he needed
additional medical evidence to render a decision. (R. 279-280). He ordered plaintiff to attend a
consultative mental examination and advised that he would permit all parties to review the
examiner’s report and have an opportunity for cross-examination before he issued his decision.
(R. 282). Contrary to his order, however, the ALJ issued his decision upon receipt of the
examiner’s report, thereby violating plaintiff’s right to a full and fair hearing. (R. 230, 339).
2
While her appeal was pending with this Court, plaintiff filed another application for disability
benefits on September 17, 2008. (R. 327). That application was denied initially on January 7,
2009, and upon reconsideration on March 31, 2009, prior to the remand of the first case. Id. The
record does not indicate whether the parties agreed to dismiss the second application or whether
it was merged with the first application in light of the remand order for a de novo hearing.
3
Plaintiff’s Work History
Plaintiff left school after repeating the tenth grade and later obtained her GED. (R. 403).
Plaintiff reported previous jobs as an assembler, cashier, janitor, and secondary machine
operator. (R. 406). Plaintiff’s last job was as a cashier at a thrift store. (R. 532). Plaintiff testified
that she left that job voluntarily because she forgot to report to work and was so embarrassed that
she never went back. (R. 532-33).
Plaintiff’s Mental Health History
Plaintiff reported a traumatic childhood marked by sexual abuse at the hands of family
members. (R. 281-82). Plaintiff was hospitalized in 2000 following a suicide attempt. (R. 129).
Plaintiff reportedly slit her wrist after an argument with her boyfriend. (R. 127). The hospital
diagnosed plaintiff with depressive disorder and alcohol abuse. Id. Plaintiff responded to
medication and treatment and was discharged. Id.
Following that hospitalization, plaintiff reported that she began therapy and medication
management at CREOKS. (R. 277). The record reflects, however, that plaintiff first sought
treatment at CREOKS in April 2005. (R. 211). Plaintiff’s ex-husband, the father of her children,
had just died, and plaintiff sought help to address her grief. (R. 215). CREOKS diagnosed
plaintiff with post-traumatic stress disorder (“PTSD”) and severe bipolar II disorder with
psychotic symptoms. (R. 254).
Plaintiff underwent the first of three consultative mental examinations associated with
these proceeding on October 10, 2005. (R. 150). Dr. Michael Morgan examined plaintiff and
conducted tests to assess her mental state. Id. Plaintiff reported symptoms of depression and use
of alcohol and marijuana within the last few months. (R. 152). Dr. Morgan diagnosed plaintiff
4
with chronic PTSD, major depressive disorder, alcohol abuse, cannabis abuse,3 and borderline
personality disorder. (R. 154). He concluded that plaintiff would be able to attain a “more normal
level of psychological functioning” within a few years if she abstained from using drugs and
alcohol and sought regular treatment. Id.
Plaintiff continued her treatment at CREOKS. In October, 2006, plaintiff’s diagnosis was
reduced to moderate major depression. (R. 203). By June 2007, plaintiff’s response to
medication was improving. (R. 222).
In response to the ALJ’s order following the first hearing, plaintiff attended her second
consultative medical examination on February 25, 2008. (R. 230). Dr. Denise LaGrand examined
plaintiff and conducted tests to assess her mental state. Id. Plaintiff reported concentration and
memory problems, irritability, confusion, “hearing voices,” flashbacks, panic attacks, depression,
sleep problems, blackouts, anger issues, headaches, and PTSD. She reported some of these
problems began in childhood, while others became apparent later. Plaintiff claimed her difficulty
controlling her anger affects her ability to work and get along with her co-workers and
supervisors, and the flashbacks “make concentration and focus extremely challenging.” Id. Dr.
LaGrand diagnosed plaintiff with PTSD, panic disorder with agoraphobia, moderate major
depression, and occupational problems, assigning plaintiff a GAF score of 50. (R. 236). Dr.
LaGrand also completed a mental source statement on plaintiff’s ability to do work-related
activities. (R. 238). She determined that plaintiff had the following limitations: mild limitations
in understanding and remembering complex instructions and in “responding appropriately to
3
Plaintiff candidly admitted her prior use of alcohol and marijuana to two of the doctors who
examined her and denied alcohol or drug use with the other two doctors. (R. 150, 197, 234, 478).
The record indicates that plaintiff likely last used marijuana in 2005 and alcohol in 2007. (R.
150, 234). The ALJ did not find that plaintiff’s substance abuse was an issue in his decision,
other than as a factor in assessing her credibility. (R. 336).
5
usual work situations and changes in a routine work setting;” moderate limitations in carrying
out complex instructions and in making judgments on “complex work-related decisions;” and
difficulty with regular work attendance. (R. 238-39).
On remand, the ALJ sent plaintiff for a third consultative medical examination with Dr.
David Hansen. (R. 478). Dr. Hansen diagnosed plaintiff with major depression, PTSD, and
probable borderline personality disorder. (R. 478-80). Dr. Hansen concluded that “the
psychological stressors of a typical work day will place [plaintiff] at greater risk for mood
exacerbation similar to the past.” (R. 479).
On the date of the second ALJ hearing, plaintiff was continuing her treatment at
CREOKS. (R. 529, 537-38). She testified that CREOKS had helped her obtain housing and
utility services. (R. 538). Plaintiff also testified that she attended day-long sessions at CREOKS
twice a week. (R. 537-38). During these sessions, plaintiff would attend two group therapy
sessions, work with others to complete chores, and make lunch. Id. Plaintiff stated that she
learned about her mental illness and about coping skills during these sessions. Id.
In addition to the consultative examinations, the Commissioner also completed two
Psychiatric Review Technique (“PRT”) forms and two mental Residual Functional Capacity
(“RFC”) assessments on plaintiff during the course of the disability proceedings. (R. 157, 171).
Agency doctors completed these assessments by reviewing the medical records; they did not
examine or treat plaintiff. Id. The PRT form addressed plaintiff’s symptoms and the four areas of
functional limitations necessary for plaintiff to meet or medically equal a listing. Id. The mental
RFC assessment determined which mental work activities plaintiff could perform and what
limitations she would have. (R. 171).
6
The first PRT form and the first mental RFS assessment were completed on November 1,
2005. (R. 157, 171). The PRT form stated that plaintiff did not meet or medically equal a listing
for a mental disorder. (R. 157-166). The PRT form also stated that plaintiff had mild restrictions
in her activities of daily living and moderate restrictions in maintaining social function and in
concentration, pace, and persistence. (R. 167). The mental RFC assessment found moderate
limitations in the following areas: (1) understanding and remembering detailed instructions; (2)
carrying out detailed instructions; (3) maintaining attention and concentration for extended
periods; (4) accepting instructions and criticisms from a supervisor; and (5) maintaining a good
working relationship with coworkers. (R. 171-72). Plaintiff had marked limitations in her ability
to “interact appropriately with the general public.” (R. 172). The form contained a detailed
explanation of plaintiff’s limitations and abilities that reflected these findings. Id.
The second PRT form and mental RFC assessment were completed on January 6, 2009.
(R. 482, 486). The second PRT form concluded that plaintiff’s condition had deteriorated
somewhat. She now had moderate restrictions in her activities of daily living, in maintaining
social function, and in concentration, pace, and persistence. (R. 496). The second mental RFC
assessment was identical to the first. (R. 482).
Plaintiff’s Physical Health
Plaintiff sought treatment at the Latimer Christian Clinic for pain on three different
occasions. (R. 508-518). In October 2006, plaintiff complained that she had suffered back pain
for a week. (R. 518). She had sought relief with a heating pad. Id. In October 2008, plaintiff
presented with complaints of pain in both knees and in her lumbosacral region. (R. 514). In May
2009, plaintiff complained of arthritis pain in her knees and back and stated that her pain
7
medication was no longer working. (R. 509). Finally, in August 2009, plaintiff complained that
the discs in her back felt as though they were rubbing together. (R. 508).
Dr. Seth Nodine completed a consultative examination of plaintiff in August 2006. (R.
197). Dr. Nodine registered plaintiff’s complaints of lower back pain, numbness in her arms and
legs, and difficulty grasping objects. Id. He found some tenderness on plaintiff’s “spinous
process and paraspinous lunbar muscles” and very slight limitations in plaintiff’s right hip
rotation, but otherwise, there were no abnormalities. (R. 199-200). Dr. Nodine diagnosed
plaintiff with “chronic pain as described.” (R. 199).
The ALJ Hearing
At the hearing on December 9, 2009, the ALJ heard testimony from plaintiff and from a
vocational expert. (R. 521-50). Plaintiff described her current treatment at CREOKS, which
included twice-weekly day-long therapy sessions to address her mental illness. (R. 529). She
discussed her traumatic childhood, which caused her to suffer from PTSD. (R. 530-31). Plaintiff
described her mind as “a racetrack car going around. . . most of the time.” (R. 530). She stated
that, on her bad days, she felt like “everybody’s just coming in at me” and she sank into a
depression. (R. 530, 539). The therapy helped her have time to sort through her thoughts. (R.
529-30). Plaintiff also testified to a long history of back pain from arthritis and a car accident. (R.
532, 534). She complained of knee pain as well (R. 532). Plaintiff described her daily activities
but explained that she often had to stop and rest while doing household chores. (R. 544).
Following plaintiff’s testimony, the vocational expert testified. He reviewed plaintiff’s
prior work history as an assembler, a cashier, and a janitor. (R. 546). He classified the assembler
and cashier jobs as light work and the janitorial job as medium work, although plaintiff had
reported it as light work. Id.
8
The ALJ then posed the following hypothetical: “Let me give you a hypothetical
Claimant of this Claimant’s age, educational background, and prior work experience who could
do a light exertional range of work, confined to simple uncomplicated tasks with routine
supervision.” Id. He then amended the hypothetical to also include some complex tasks. (R.
547). The vocational expert testified that plaintiff would be able to do all of her previous work,
as well as other light unskilled jobs, such as a mail clerk, a sorter, an office helper or messenger,
an assembler, or other jobs masking off parts or polishing items. (R. 547-48). On crossexamination, plaintiff’s attorney asked the vocational expert to consider plaintiff’s testimony in
his hypothetical. (R. 548). The vocational expert testified that plaintiff would not be able to work
due to her “bad days,” as it would impact her attendance. Id. Plaintiff’s attorney then asked
whether some of the jobs that the vocational expert had described would include production
quotas. (R. 549). The vocational expert responded that they did. Id. When plaintiff’s attorney
asked whether quotas would increase the stress level of those types of jobs, the ALJ cut off that
line of questioning, stating that the vocational expert was “not a psychologist. He cannot testify
whether that would be stressful or not.” Id.
When plaintiff’s attorney asked if the vocational expert was “familiar with the concept of
Global Assessment of Functioning,” the ALJ stopped the cross-examination over plaintiff’s
attorney’s objection and ended the hearing. (R. 549-50).
The ALJ’s Decision
The ALJ issued his decision on January 20, 2010, and denied plaintiff’s application for
benefits. (R. 327-38). The ALJ found that plaintiff had not engaged in any substantial gainful
activity since November 1, 2000, and that plaintiff was insured through March 31, 2007. (R.
329). The ALJ found that plaintiff suffered from the following severe impairments: bipolar
9
disorder, PTSD, depression, and back pain; however, he found that plaintiff did not meet or
medically equal a listing for any of those impairments. (R. 329-30).
The ALJ then reviewed plaintiff’s testimony and the findings of the consulting
physicians, as well as some of plaintiff’s medical records. (R. 330-36). He concluded that
plaintiff was not entirely credible because “she was inconsistent when she reported to [sic] drug
and alcohol abuse to the examining doctors and exaggerated the effects of her impairments.” (R.
336). The ALJ also opted to give “great weight . . . to the State Agency medical consultants’
opinions.” (R. 335). The ALJ concluded that plaintiff retained the residual functional capacity to
perform light work with a single limitation: that she perform “simple, uncomplicated tasks with
routine supervision.” (R. 331).
Based on plaintiff’s residual functional capacity, the ALJ found that plaintiff could return
to her previous work as a janitor or perform one of the following jobs: mail clerk, sorting, office
helper, assembly, and miscellaneous labor. (R. 336-37). Accordingly, the ALJ concluded that
plaintiff was not disabled. (R. 337).
ANALYSIS
Plaintiff claims to raise only two points of error in her brief relating to the ALJ’s
hypothetical and the ALJ’s credibility determination. Much of plaintiff’s brief argues that the
ALJ failed to include necessary findings in the hypothetical that he posed to the vocational
expert; however, a close reading of the brief reveals that plaintiff has raised multiple points of
error in four areas: (1) the list of plaintiff’s severe impairments; (2) the ALJ’s residual functional
capacity analysis; (3) the hypothetical that the ALJ proposed to the vocational expert; (4) the
ALJ’s credibility determination; and (5) plaintiff’s procedural due process rights. Accordingly,
the Court will address those points of error under these five categories.
10
Severe Impairments
Plaintiff argues that the ALJ failed to include borderline personality disorder in plaintiff’s
list of severe impairments. (Dkt. # 12 at 3-4). Plaintiff notes that Dr. Morgan diagnosed her with
borderline personality disorder and that Dr. Hansen found it “probable” that plaintiff had the
disorder. (R. 150, 478). Both of these doctors examined plaintiff. The consulting physicians did
not examine plaintiff, and neither included borderline personality disorder as one of plaintiff’s
mental health diagnoses or impairments. (R. 157, 171, 482, 486).
The ALJ opted to give “great weight” to the Administration’s consulting psychologists
rather than the examining psychologists, but he offered no explanation for rejecting the opinions
of the examining psychologists. (R. 335-36). The regulations provide that “[t]he 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) (citing 20 C.F.R. §
404.1527(d)(1) and SSR 96-6p). Just as an ALJ is required to explain his reasoning for rejecting
a treating physician’s opinion in favor of an examining physician’s opinion, so is an ALJ
required to explain his reasoning for rejecting an examining physician’s opinion in favor of a
reviewing physician’s opinion. See Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987) (stating
that an ALJ must give specific, legitimate reasons for disregarding a treating physician’s
opinion); Thomas v. Barnhart, 147 Fed.Appx 755, 760 (10th Cir. 2005) (holding that an ALJ
must give “adequate reasons” for rejecting an examining physician’s opinion and adopting a
non-examining physician’s opinion).
Because the ALJ failed to specify his reasons for rejecting the examining psychologists’
opinions, which included a diagnosis of borderline personality disorder and “probable”
11
borderline personality disorder, the Court must remand the case. See Watkins v. Barnhart, 350
F.3d 1297, 1299 (10th Cir. 2003). On remand, the ALJ must state his reasons for rejecting the
examining psychologists’ opinions. Without this analysis, the Court “cannot meaningfully
review the ALJ’s determination” of plaintiff’s severe impairments. Drapeau v. Massanari, 255
F.3d 1211, 1214 (10th Cir. 2001) (citing Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996)).
Residual Functional Capacity
Although plaintiff argues that the ALJ failed to address all of the requirements of a
proper hypothetical, several of the errors that plaintiff argues are better suited to an analysis of
the ALJ’s findings with respect to plaintiff’s residual functional capacity. Those issues include
the following: (1) failure to include the restrictions listed in the PRT and mental residual
functional capacity forms; (2) failure to consider Dr. LaGrand’s finding that plaintiff would have
difficulty with attendance as a restriction; and (3) error in finding plaintiff capable of light work
despite her complaints of physical pain and the lack of a physical residual functional capacity
assessment. (Dkt. # 12 at 4-6).
The first PRT form found that plaintiff had moderate restrictions in maintaining social
function and in concentration, persistence, and pace. (R. 157). The second PRT form found that
plaintiff had moderate restrictions in her activities of daily living, in maintaining social function
and in concentration, persistence, and pace. (R. 486). The PRT forms also concluded that
plaintiff should not have any close interaction with people. (R. 157, 486). Similarly, the two
mental residual functional capacity forms in the record indicated that plaintiff had a marked
limitation in social interaction. (R. 171, 482). The reviewing psychologist concluded that
plaintiff could only work in a position where she had limited interaction with a small, “familiar”
group of coworkers and supervisors. (R. 173, 484).
12
The ALJ specifically gave “great weight” to these opinions in his decision. (R. 335-36).
Accordingly, he was required to explain his reasons for rejecting a portion of the medical
opinions he adopted. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007). Under these
circumstances, remand is required to permit the ALJ to explain why he seemingly rejected
portions of the medical opinions he adopted.4 See id. Even if the ALJ did not intend to reject the
portions of the medical opinions finding that plaintiff had moderate and marked limitations, he
was required to include them in his residual function capacity findings and in his hypothetical to
the vocational expert.5 See id. (holding that moderate restrictions should be included in the
residual functional capacity determination). The ALJ will also be required to include the marked
limitation on plaintiff’s ability to maintain social function and interact appropriately with others,
as a marked limitation is more severe than a moderate limitation.
Conversely, the ALJ was not necessarily required to include Dr. LaGrand’s opinion that
plaintiff likely would struggle with attendance. Dr. LaGrand was the only medical source who
4
Even though the Court has already held that the ALJ improperly adopted the opinions of the
reviewing psychologists without explaining his reasons for rejecting the examining
psychologists’ opinions, this analysis is still proper. If, on remand, the ALJ conducts the proper
analysis and maintains his position on the reviewing psychologists’ opinion, he will still need to
address the reasons he failed to adopt the findings in the PRT and mental residual functional
capacity forms.
5
The only restriction in the ALJ’s hypothetical was that plaintiff be limited to performing
“simple, uncomplicated tasks under routine supervision.” The Tenth Circuit Court of Appeals
has held that the terms “simple” and “unskilled work” do not adequately incorporate a claimant’s
restrictions arising from a mental impairment. See Wiederholt v. Barnhart, 121 Fed.Appx. 833,
839 (10th Cir. 2005).
13
made such a finding; therefore, her opinion may or may not be included in the ALJ’s findings on
remand, depending on the ALJ’s amended finding on remand.6
Plaintiff also argues that the ALJ erred in finding plaintiff capable of performing light
work without the benefit of a physical residual functional capacity assessment. The ALJ failed to
explain his reasoning in concluding that plaintiff was able to perform light work. The ALJ must
make findings and support those findings with evidence contained in the record. “In the absence
of ALJ findings supported by specific weighing of the evidence, we cannot assess whether
relevant evidence adequately supports the ALJ's conclusion that [the claimant's] impairments did
not meet or equal any Listed Impairment, and whether he applied the correct legal standards to
arrive at that conclusion.” Clifton, 79 F.3d at 1009. Remand is also appropriate on this issue.
The ALJ’s Hypothetical
Plaintiff contends that the ALJ erred in failing to include a number of specific
requirements necessary to establish a valid hypothetical. (Dkt. # 12 at 2-3). More precisely,
plaintiff argues that the ALJ should have included specific statements regarding the strength
requirements for light work and plaintiff’s age and educational background. Id. Plaintiff also
argues that the ALJ erred by failing to ask the vocational expert whether his testimony deviated
from the listings in the Dictionary of Occupational Titles.
An ALJ’s hypothetical question to a vocational expert at step five of the analysis must
accurately and precisely reflect all of the “impairments and limitations that are borne out by the
evidentiary record.” Decker v. Chater, 86 F.3d 953 (10th Cir. 1996). See also Hargis v. Sullivan,
945 F.2d 1482, 1492 (10th Cir. 1991) (citation omitted). In order for the vocational expert’s
6
Plaintiff also contends that the ALJ failed to perform a proper residual functional capacity
analysis under Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996). The Court’s holding is
essentially a finding that the ALJ erred in conducting the first step of the three-part Winfrey test.
Accordingly, the Court does not need to address the other two steps.
14
hypothetical to constitute substantial evidence that a claimant is not disabled, the hypothetical
must include adequate statements regarding the claimant’s impairments. See Gay v. Sullivan,
986 F.2d 1336, 1341 (10th Cir. 1993).
With respect to plaintiff’s arguments for inclusion of specific strength requirements and
details of plaintiff’s age and background, the Court finds Qualls v. Astrue, 428 Fed.Appx. 841
(10th Cir. 2011) on point and persuasive.7 In Qualls, the Tenth Circuit Court of Appeals rejected
the argument that an ALJ’s hypothetical, which set the parameters for exertional demands by
listing the different categories, was improper. See Qualls, 428 Fed.Appx. at 850-51. In this case,
the ALJ asked the vocational expert to consider a hypothetical claimant of plaintiff’s age with
plaintiff’s educational background who was able to do light work. (R. 546). This statement was
sufficient to establish a precise hypothetical with respect to those points.
Plaintiff’s argument that the ALJ committed reversible error when he failed to ask the
vocational expert whether his testimony deviated from the Dictionary of Occupational Titles is
also without merit. Social Security Ruling 00-4p states that an ALJ is required to inquire whether
the vocational expert’s testimony is consistent with the dictionary’s information. If there is a
conflict between the testimony and the dictionary, the vocational expert must provide “a
reasonable explanation for the conflict” before the ALJ may rely on the testimony. SSR 00-4p.
Failure to make the inquiry, however, is harmless error if no conflicts exist. See Poppa v. Astrue,
569 F.3d 1167, 1173 (10th Cir. 2009). Here, plaintiff fails to articulate which of the occupations
the vocational expert listed conflict with the stated hypothetical. Accordingly, the Court finds no
conflict, and the ALJ’s failure to inquire constitutes harmless error.
7
10th Cir. R. 32.1 provides that “[u]npublished opinions are not precedential, but may be cited
for their persuasive value.”
15
Credibility Determination
Plaintiff argues that the ALJ’s credibility determination was improper because the ALJ
used boilerplate language and failed to articulate which portions of plaintiff’s testimony were
unsupported by the record evidence. (Dkt. # 12 at 7-9). Plaintiff also argues that the ALJ deemed
plaintiff “inconsistent when reporting her consumption of alcohol to interviewers” without
identifying those inconsistencies. (Dkt. # 12 at 9). Plaintiff further notes that plaintiff’s former
drug and alcohol abuse were not material to the ALJ’s decision. Id.
This Court will not disturb an ALJ’s credibility findings if they are supported by
substantial evidence because “[c]redibility determinations are peculiarly the province of the
finder of fact.” Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008)(citing Diaz v. Secretary
of Health & Human Svcs., 898 F.2d 774, 777 (10th Cir. 1990). Credibility findings “should be
closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of
findings.” Id. (citing Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote
omitted)). The ALJ may consider a number of factors in assessing a claimant’s credibility,
including “the levels of medication and their effectiveness, the extensiveness of the attempts . . .
to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective
measures of credibility that are peculiarly within the judgment of the ALJ, . . . and the
consistency or compatibility of nonmedical testimony with objective medical evidence.” Kepler
v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
In this case, the ALJ failed to make a proper credibility determination. The ALJ cited
extensively to the record evidence, including plaintiff’s testimony. The analysis of plaintiff’s
credibility, however, is found in one sentence: “The claimant was inconsistent when she reported
to [sic] drug and alcohol abuse to the examining doctors and exaggerated the effects of her
16
impairments.” (R. 336). An ALJ’s “findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the guise of findings.” Kepler, 68 F.3d
at 391.
While the ALJ does cite to plaintiff’s reports of her drug and alcohol abuse in his
recitation of the evidence, he does not link that evidence to his conclusion, leaving the Court to
link the ALJ’s findings of fact with his credibility determination. However, the ALJ’s conclusory
statement that plaintiff “exaggerated the effects of her impairments” is not supported by the
record, and the ALJ failed to cite any examples to support this conclusion. (R. 336). While an
ALJ is not required to “do a ‘factor-by-factor’ analysis in assessing credibility,” the ALJ must
support his findings with substantial evidence. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000). Accordingly, the Court must remand the case for the ALJ to make proper credibility
findings.
Procedural Due Process
Finally, plaintiff argues that the ALJ denied her the right to procedural due process when
he refused to allow plaintiff’s attorney to cross-examine the vocational expert on two issues.
First, plaintiff’s attorney asked the vocational expert whether production quotas associated with
an occupation would increase the stress associated with performing that job. (R. 549). The ALJ
refused to allow the vocational expert to answer that question. The ALJ also forbid any
discussion of Global Assessment of Functioning (“GAF”) scores and their impact on plaintiff’s
ability to work. Id. Plaintiff was entitled to cross-examine the vocational expert. See Glass v.
Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 402,
410, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). The Tenth Circuit Court of Appeals has determined,
however, that cross-examination should be limited, due to its adversarial nature, as social
17
security disability proceedings are non-adversarial. See Haddock v. Apfel, 196 F.3d 1084, 109191 (10th Cir. 1999). The case law does not clearly define the balance of these two principles.
In light of plaintiff’s PTSD diagnosis and its accompanying feelings of anxiety and panic,
the Court finds that the question regarding stress was appropriate. Likewise, the question
regarding GAF scores was appropriate. A GAF score “is a subjective determination based on a
scale of 100 to 1 of ‘the clinician’s judgment of the individual’s overall level of functioning.’”
Langley v. Barnhart, 373 F.3d 1116, 1122 n.2 (10th Cir. 2004) (citing American Psychatric
Association, Diagnostic and Statistical Manual of Mental Disorders (Text Revision 4th ed.
2000)). The Tenth Circuit Court of Appeals has previously permitted consideration of such
questions. See Petree v. Astrue, 260 Fed.Appx 33, 41-42 (10th Cir. 2007); Heinritz v. Barnhart,
191 Fed.Appx 718, 722 (10th Cir. 2006). Because these questions were proper, the Court holds
that the ALJ erred in refusing to allow plaintiff’s attorney to cross-examine these issues.
Although the Court is aware of the limitations of cross-examination, because the crossexamination impacts plaintiff’s procedural due process rights, the Court will err on the side of
caution in protecting those rights. Accordingly, the Court remands the case to allow plaintiff an
opportunity for meaningful cross-examination of the vocational expert.
CONCLUSION
For the foregoing reasons, this Court REVERSES and REMANDS the ALJ’s decision
denying plaintiff’s application for disability insurance benefits. On remand, the ALJ shall take
the following steps:
(1)
Specify his reasons for adopting the consulting psychologists’ opinions over
those of the examining psychologists;
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(2)
Explain his reasons for rejecting the consulting psychologists’ findings that
plaintiff suffered moderate and marked limitations. If the ALJ did not intend
to reject those findings, then the ALJ shall incorporate them into his amended
residual functional capacity analysis;
(3)
Pose a new hypothetical to the vocational expert that incorporates the
amended residual functional capacity analysis;
(4)
Conduct proper credibility findings; and
(5)
Permit plaintiff’s attorney to cross-examine the vocational expert.
SO ORDERED this 31st day of March, 2012.
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