Weir-Spencer v. Social Security Administration

Filing 22

OPINION AND ORDER by Magistrate Judge Frank H McCarthy (FHM1, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
CYNTHIA G. WEIR-SPENCER,
Plaintiff,
vs.

Case No. 10-CV-800-FHM

MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff, Cynthia G. Weir-Spencer, seeks judicial review of a decision of the
Commissioner of the Social Security Administration denying Social Security disability
benefits.1 In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to
proceed before a United States Magistrate Judge.
Standard of Review
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) is limited to a determination whether the record as a whole contains substantial
evidence to support the decision and whether the correct legal standards were applied.
See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v.
Chater, 92 F.3d 1017 (10th Cir. 1996); Castellano v. Secretary of Health & Human Servs.,
26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is more than a scintilla, less
than a preponderance, and is such relevant evidence as a reasonable mind might accept

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Plaintiff's March 19, 2009, application for disability benefits was denied initially and on
reconsideration. A hearing before Adm inistrative Law Judge ("ALJ") Lantz McClain was held May 24, 2010.
By decision dated August 16, 2010, the ALJ entered the findings that are the subject of this appeal. The
Appeals Council denied Plaintiff’s request for review on October 21, 2010. The decision of the Appeals
Council represents the Com m issioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981,
416.1481.

as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427, 28 L. Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). The court may neither reweigh the evidence nor substitute its judgment
for that of the Commissioner. Casias v. Secretary of Health & Human Servs., 933 F.2d
799, 800 (10th Cir. 1991). Even if the court would have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. Hamilton v.
Secretary of Health & Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Background
Plaintiff was 50 years old on the amended date of disability onset and was 52 on the
date of the ALJ’s denial decision. She has a high school education and formerly worked
as a concession vendor. She claims to have been unable to work since April 19, 2008 as
a result of generalized osteoarthritis, degenerative disc disease of the cervical spine,
depression, and anxiety.
The ALJ’s Decision
The ALJ determined that Plaintiff retains the residual functional capacity (RFC) to
perform medium work defined in C.F.R. § 404.1567(c) and 416.967(c), except she is
limited to simple repetitive tasks and having no more than incidental contact with the public.
Although Plaintiff is unable to perform her past relevant work, based on the testimony of
the vocational expert, the ALJ determined that there are a significant number of jobs in the
national economy that Plaintiff could perform with these limitations. The case was thus
decided at step five of the five-step evaluative sequence for determining whether a

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claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)
(discussing five steps in detail).
Plaintiff’s Allegations
Plaintiff argues that the ALJ: failed to perform a proper determination at step five;
failed to properly weigh the medical source evidence; failed to perform a proper credibility
determination; and failed to properly develop the record.
Analysis
Step Five Determination
At step five of the sequential evaluation, the ALJ considers whether there is work
in the economy that the claimant can perform with his or her work-related limitations. 20
C.F.R. § 404.1520(g). Plaintiff argues that the ALJ failed to perform a proper determination
at step five because the hypothetical question to the vocational expert failed to include
restrictions on use of the hands, the ALJ ignored that Plaintiff required use of a cane, and
ignored Global Assessment of Functioning (GAF) scores2 in the record.
Plaintiff states that the ALJ ignored the GAF scores of less than 50 which
appeared in her treatment records. Plaintiff points out that the vocational expert was
asked about “the effect of chronically low [GAF] scores of 50 and below” on the ability
to work on a sustained basis. Plaintiff argues that the ALJ ignored the vocational
expert’s answer which was unfavorable to the conclusion reached by the ALJ.

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The GAF score represents Axis V of the Multiaxial Assessm ent system . See American Psychiatric
Assoc., Diagnostic and Statistical Manual of Mental Disorders 25-30 (4th Ed. 1994). The axial system of
evaluation enables the clinician to com prehensively and system atically evaluate a client. See id. at 25. The
GAF rates the client’s “psychological, social, and occupational functioning.” Id. at 30.

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The vocational expert’s testimony did not directly relate to information in
Plaintiff’s medical record, the testimony was more of a generalized comment. In
context, the question and answer were:
Q: How would an individual assessed GAF scores ranging
from 46 to 50 fare in the workplace?
A: Well, if it’s over a consistent period of time, normally
people with those – that number usually has some fair [sic]
significant limitations, and usually have trouble maintaining
jobs.
[Dkt. 11-2, p. 43].

Plaintiff points to two GAF scores in her records, one dated

December 19, 2008, [Dkt. 10-13, p. 43], and one dated April 7, 2010, [Dkt. 10-14, p.
12]. The December 2008 score was generated as part of formulating a treatment plan
for Plaintiff. [Dkt. 10-13, pp. 35-43]. The April 2010 score was generated in the context
of a “treatment review appointment.” [Dkt. 10-14, p. 12]. These GAF scores may or
may not qualify as GAF scores over a consistent period of time. That is a matter to be
decided by the Commissioner. However, since the ALJ did not address the scores or
that aspect of the vocational expert’s testimony, the court cannot determine whether
that information was considered by the ALJ and if it was considered how the ALJ
factored it into the decision.
The court recognizes that there is no hard and fast requirement that the ALJ
address GAF scores. In this case it is necessary. The record reflects that Plaintiff
received mental health treatment from July 2006 to April 2010. The GAF scores are
the only comment on Plaintiff’s functional abilities from a treating medical source.
Neither the agency’s reviewing experts nor the ALJ commented upon the GAF scores
which, based on the vocational expert’s testimony, are at least relevant and are
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possibly dispositive. Based on theses circumstances the case must be remanded for
consideration and discussion of the GAF scores in light of the vocational expert’s
testimony.
A single mention of hand problems in the medical record without any indication
that functional impairment resulted did not require inclusion of hand limitations in the
RFC. The ALJ noted the May 20, 2010 medical record where some inflamation of the
joints in the hands, tendon entrapment of the thumb on the right side, tenderness at the
wrist, and a prescription for Naproxen were mentioned. [Dkt. 11-2, p. 17]. The ALJ also
noted the results of the consultative physical examination where Plaintiff was found to have
the ability to pick up and manipulate paperclips without difficulty and had grip strength
which was equal bilaterally and rated at 5/5. Id. The court finds that the hypothetical
question presented to the vocational expert was sufficient in that it contained all of the
limitations found to exist by the ALJ. See Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir.
2000) (approving a hypothetical as adequate where there was no evidence that
nosebleeds or respiratory infections were expected to last twelve months); Gay v.
Sullivan, 986 F.2d 1336, 1341 (10th Cir.1993) (approving a hypothetical as adequately
reflecting the limitations found to exist by the ALJ).
Plaintiff argues that the ALJ ignored that Plaintiff uses a cane to walk sometimes
and states: “[e]ven [the ALJ’s] reviewers, whose opinions he accorded ‘great weight,’
also noted Claimant required use of a cane periodically.” [Dkt. 14, p. 3]. Plaintiff’s
statement leaves the erroneous impression that use of a cane is indicated somewhere
in the medical record. It is not. The medical consultants of the State Disability

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Determination Service (DDS) noted Plaintiff’s statement that she walks with a cane, not
that the use of a cane is mentioned in the medical record. [Dkt. 11-13, pp. 92, 93]. The
DDS consultants do note the consultative examiner’s report that Plaintiff “moves all
extremities well” and that her gait is stable “without the use of assistive devices.” Id.
The ALJ also noted this report in addition to Plaintiff’s report that she walks her dog
every other day about a mile. [Dkt. 11-2, p. 17]. The court finds no error in the ALJ’s
failure to include use of a cane in the RFC or the hypothetical questioning of the
vocational expert.
Consideration of Medical Source Evidence
Plaintiff argues that the ALJ erred in giving the opinion of DDS reviewers great
weight. According to Plaintiff, the reviewer’s finding that Plaintiff had a moderate limitation
in concentration, persistence, and pace was inconsistent with their determination of her
work-related activities. The court finds there is no such inconsistency and that Plaintiff’s
argument is wholly unsupported by the record.
Where, as in this case, there is evidence of a mental impairment that allegedly
prevents a claimant from working, the ALJ must follow the procedure for evaluating mental
impairments set forth in the regulations and is required to document the application of the
procedure in the decision. 20 C.F.R. §§ 404.1520a(e), 416.920a(e). This procedure,
known as the psychiatric review technique (PRT), requires the ALJ to consider the effect
of the mental impairment on four broad areas of functioning known as the “paragraph B”
criteria: activities of daily living; social functioning; concentration, persistence, or pace; and
episodes of decompensation of extended duration. See 20 C.F.R., Part 404, Subpart P,

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Appendix 1, §12.00 (C). However, PRT findings do not necessarily relate to the ability to
perform work-related activities and thus do not necessarily reflect limitations that must also
appear in the RFC. The ALJ explained in his decision that “the paragraph B” criteria are
not RFC assessments. [Dkt. 11-2, p. 15]. Social Security Ruling 96-8p iterates this point.
SSR 96-8p, 1996 WL 374184 at *4.
The DDS reviewer, Sally Varghese, MD, completed a PRT form which included
findings in the “paragraph B” areas, and included a finding of a moderate limitation in the
area of concentration, persistence, and pace. [Dkt. 11-13, p. 88]. In the “Consultant’s
Notes” portion of the form Dr. Varghese summarized Plaintiff’s mental health records and
offered the following conclusion: “It is thought the clmt can do simple but not complex
tasks. She cannot relate to the general public.” [Dkt. 11-13, p 90]. Dr. Varghese also
completed a Mental Residual Functional Capacity Assessment form in which the Plaintiff’s
ability to perform mental work-related activities was assessed.

In the category for

“sustained concentration and persistence” Dr, Varghese noted that Plaintiff’s ability to carry
out detailed instructions was “markedly limited” but she was not limited in other abilities
related to sustained concentration and pace. [Dkt. 11-13, p. 74]. In the “functional
capacity assessment” portion of the form, the instructions require that an elaboration of the
capacities be recorded. There Dr. Varghese stated: “Plaintiff can perform simple tasks
with routine supervision.” [Dkt. 11-13, p. 76]. Dr. Varghese thus clearly and unmistakably
noted the work-related impact of Plaintiff’s moderate difficulties in concentration,
persistence, and pace.
Plaintiff also argues that the DDS medical reviewers erred in “stating there were no
deformities of the extremities when there was a demonstrable enlargement of the tight [sic]
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thumb joint.” Plaintiff has miscast the record.3 On the page Plaintiff cited, the DDS
reviewer noted:
5/20/09 exam at OU Family Clinic shows evidence of OA in cspine, hips and hands. She has game cock thumb on right.
Extremities show no clubbing, cyanosis, edema or deformity.
[Dkt. 11-13, p. 120]. The OU Clinic record for May 20, 2009 noted inflamation of the joints
in the hands with tendon entrapment of the thumb on the right side and some tenderness
at the wrist. [Dkt. 11-13, 97]. Under the heading “extremities,” the following was recorded:
“no clubbing, cyanosis, edema, or deformity noted.” Id. The DDS reviewers did not misstate the OU Clinic records.
Credibility Determination
“Credibility determinations are peculiarly the province of the finder of fact, and [the
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.” Hackett v. Barnhart, 395 F.3d
1168, 1173 (10th Cir.2005) (citation, brackets, and internal quotation marks omitted). The
ALJ cited numerous grounds, tied to the evidence, for the credibility finding. In assessing
Plaintiff’s credibility, the ALJ noted Plaintiff’s activities which include walking her dog and
walking to the post office, the objective range of motion and strength findings, noncompliance with medication, side effects she complained of, improvement on compliance
with taking Zoloft, and the opinions of the DDS reviewers. [Dkt. 11-2, pp. 16-19]. The ALJ
thus properly linked his credibility finding to the record, therefore the undersigned finds no

3

Counsel for Plaintiff is rem inded of the responsibility to accurately present the facts to the court.
Fed.R.Civ.P. 11(b)(3).

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reason to deviate from the general rule to accord deference to the ALJ’s credibility
determination.
Development of the Record
Plaintiff points out that hearing counsel requested a mental consultative
examination, that the ALJ said he would take it under advisement, and that a mental
consultative examination was not obtained. Plaintiff states that the ALJ should have
ordered the requested testing or explained why he felt it unnecessary. The court finds the
absence of a mental consultative examination or explanation is not grounds for reversal.
“[T]he ALJ should order a consultative exam when evidence in the record
establishes the reasonable possibility of the existence of a disability and the result of the
consultative exam could reasonably be expected to be of material assistance in resolving
the issue of disability.” Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) In this
case there is no direct conflict in the medical evidence requiring resolution; the medical
evidence in the record is fairly extensive; and additional tests are not required to explain
a diagnosis already contained in the record. See Id. at 1166. Further, there is no
requirement that an ALJ explain the basis for refusing to accede to a request for a
consultative examination. The court finds that the ALJ did not err in failing to order a
consultative examination or in not providing an explanation as to why one was not ordered.
However, on remand an explanation of why a mental consultative examination would not
materially assist the resolution of the issue of disability would assist the court in its review
of the decision.

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Conclusion
The ALJ’s decision is REVERSED and the case REMANDED for further
proceedings in accordance with this Opinion and Order.
SO ORDERED this 28th day of March, 2010.

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