Hallman v. Commissioner of Social Security

Filing 20

MEMORANDUM OPINION AND ORDER ~ The Court reverses the decision of the Commissioner and remands the matter for further proceedings consistent with this Memorandum Opinion and Order. Signed by Magistrate Judge Bernard M. Jones on 6/5/2017. (dwl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRISTOPHER BRADLEY HALLMAN, )
)
Plaintiff,
)
v.
)
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security
)
Administration,
)
)
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Defendant.
)

Case No. CIV-16-903-BMJ

MEMORANDUM OPINION AND ORDER
Plaintiff Christopher Bradley Hallman seeks judicial review of the Social Security
Administration’s denial of supplemental security insurance (SSI). Pursuant to 28 U.S.C. § 636(c),
the parties have consented to the exercise of jurisdiction over this matter by a United States
Magistrate Judge. The Commissioner has answered and filed the Administrative Record, and both
parties have briefed their respective positions. For the reasons stated below, the Court reverses
the Commissioner’s decision and remands the matter for further proceedings.
I.

Procedural Background
Plaintiff received SSI based on childhood disability until he turned eighteen years old.

Administrative Record (AR), [Doc. No. 11], 11. At that time, Plaintiff was re-evaluated for
disability under the rules for determining disability in adults. Id. On March 21, 2013, the State

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Pursuant to Fed. R. Civ. P. 25(d), the Court substitutes Nancy A. Berryhill, Acting Commissioner
of Social Security Administration, as the proper Defendant in this action.

Agency determined on initial review that Plaintiff was no longer disabled as of March 14, 2013.
Id. The initial decision was upheld on reconsideration. Id.
At Plaintiff’s request, an administrative law judge (ALJ) held a video hearing on June 25,
2014. AR 33-69. Plaintiff represented himself at the hearing. The ALJ issued an unfavorable
decision on November 25, 2014, AR 11-25. On appeal, the Social Security Appeals Council
denied Plaintiff’s request for review. AR 1-5. Thus, the ALJ’s decision became the final decision
of the Commissioner and is the subject of this judicial review.
II.

The ALJ’s Decision
The ALJ followed the sequential evaluation process required by agency regulations. See

Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential
evaluation process); see also 20 C.F.R. § 416.920. The ALJ first determined Plaintiff had never
engaged in substantial gainful activity. AR 13.
At step two, the ALJ listed Plaintiff’s severe impairments: pes planus; left leg instability
due to prior injury; gastroesophageal reflux disease (GERD); intermittent explosive disorder;
depressive disorder; and learning disorder. Id. Additionally, the ALJ found a history of asthma,
eczema and seizures but determined these conditions were not severe because Plaintiff had had no
recent exacerbations of asthma, had no skin rash or lesions, and was not taking medication for
seizures. Id.
At step three, the ALJ found none of Plaintiff’s impairments meets or medically equals any
of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1.
AR 13-14. The ALJ evaluated Plaintiff’s pes planus and left leg instability under Listing 1.02 A,
his GERD under Listing 5.00, and his mental disorders under Listings 12.02, 12.04, 12.06 and
12.08. AR 14.

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At step four, the ALJ determined Plaintiff’s residual functional capacity (RFC):
After careful consideration of the entire record, the undersigned finds that since
March 14, 2013, the claimant has had the residual functional capacity to lift and
carry 10 pounds occasionally and less than 10 pounds frequently. The claimant can
sit for about 6 hours during an eight-hour workday and can stand and walk for at
least 2 hours during an eight-hour workday. The claimant can occasionally climb,
balance, stoop, kneel, crouch, and crawl. The claimant is to avoid concentrated
exposure to dusts, fumes, gases, odors, and poor ventilation, and hazards such as
unprotected heights and heavy machinery. The claimant can understand,
remember, and carry out simple, routine and repetitive tasks. The claimant can
respond appropriately to supervisors, co-workers, and usual work situations, but
have no contact with the general public.
AR 15.
At step five, the ALJ relied on the testimony of a vocational expert (VE) in determining
Plaintiff can perform jobs existing in significant numbers in the national economy including small
parts assembler, hand cutter, and cuff folder. AR 24. Thus, the ALJ found Plaintiff not disabled
at step five of the sequential evaluation process.
III.

Standard of Review
Judicial review of the Commissioner’s final decision is limited to determining whether the

factual findings are supported by substantial evidence in the record and whether the correct legal
standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quotation omitted). A
decision is not based on substantial evidence if other evidence in the record overwhelms it, or if
there is a mere scintilla of evidence supporting it. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th
Cir. 2004). The court “meticulously examine[s] the record as a whole, including anything that
may undercut or detract from the ALJ’s findings to determine if the substantiality test has been
met.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). While the court

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considers whether the ALJ followed the applicable rules of law in weighing particular types of
evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment
for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations
and citations omitted).
IV.

Issues Presented for Judicial Review
Plaintiff challenges the ALJ’s RFC formulation, contending it does not precisely reflect

Plaintiff’s mental limitations from intermittent explosive disorder or his physical limitations from
pes planus. Plaintiff further contends the ALJ erred in failing to consider Plaintiff’s obesity in
combination with other disorders.
Plaintiff’s challenge to the ALJ’s mental RFC is dispositive and requires reversal and
remand.

The ALJ’s conclusion that Plaintiff has the ability to “respond appropriately to

supervisors, co-workers, and usual work situations,” despite his mental impairments consisting in
part of intermittent explosive disorder, is not supported by substantial evidence in the record as a
whole. The two opinions in the record supporting the ALJ’s mental RFC are from non-examining,
State agency medical sources who based their opinions on limited medical evidence. Their
opinions regarding the severity of Plaintiff’s mental impairments do not constitute substantial
evidence to support the ALJ’s decision because they are overwhelmed by evidence to the contrary.
Because this error requires reversal and remand, the Court need not consider the ALJ’s
analysis of Plaintiff’s physical impairments, his failure to consider Plaintiff’s obesity, or his
determination that Plaintiff can perform work at the sedentary exertional level.
V.

Analysis
The administrative record contains evidence from different kinds of medical sources

regarding Plaintiff’s mental impairments and resulting functional limitations. The evidence

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includes a Psychological Evaluation and diagnoses from an examining consultative psychologist;
a Mental Residual Functional Capacity Assessment (MRFC) and a Psychiatric Review Technique
form (PRT) from a non-examining State agency medical doctor; a MRFC and PRT form from a
non-examining State agency psychologist; and a Medical Source Statement of Ability to do WorkRelated Activities (Mental), a Mental Status Form, along with contemporaneous treatment notes
from Plaintiff’s mental health provider. As discussed in further detail below, the ALJ’s decision
regarding the existence of Plaintiff’s severe mental impairments is supported by substantial
evidence. But the ALJ’s decision regarding the severity of Plaintiff’s mental impairments is not
so supported.
A. Diagnoses by the Consultative Psychologist
Heidi Holeman Kamm, Ph.D., a licensed psychologist, conducted a consultative
psychological evaluation of Plaintiff at the request of the State agency on March 11, 2013. AR
309. The results of Plaintiff’s mental status examination were not impressive. The results revealed
marginal awareness of current events (“I know Wrestlemania’s coming”) and questionable social
judgment and comprehension. Dr. Kamm observed Plaintiff had “minor observable problems with
focus” as well as problems with recall and fund of knowledge. AR 311.
Plaintiff reported problems managing his anger. He told Dr. Kamm he blacks out when he
is in a rage and has no memory afterwards of what happened. He acknowledged there are
numerous holes in the walls of his room, but stated he does not remember punching or kicking the
wall. His grandmother, with whom he lives, reported Plaintiff also punches himself in the head
and hits his head on the wall when he is angry. Additionally, both reported Plaintiff’s paranoia
and excessive worry. AR 310.

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Dr. Kamm diagnosed Plaintiff with Intermittent Explosive Disorder (IED), Depressive
Disorder and Learning Disorder (“by report”). AR 312. She further found he had problems related
to social environment and assessed a Global Assessment of Functioning score (GAF) of 55.2 Dr.
Kamm suggested further psychoeducational evaluation to gain a better perspective of Plaintiff’s
current intellectual functioning. AR 311.3
The ALJ adopted Dr. Kamm’s diagnoses.

Based on the results of Dr. Kamm’s

examination, the ALJ found Plaintiff’s severe impairments included IED,4 depressive disorder and
learning disorder. AR 13.

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The GAF is a subjective determination based on a scale of 0 to 100 of “the clinician’s judgment
of the individual’s overall level of functioning.” American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders (DSM) (Text Revision 4th ed. 2000), 32. GAF scores
were commonly used at that the time Dr. Kamm examined Plaintiff. A GAF score of 51–60
indicates “moderate symptoms,” such as a flat affect, or “moderate difficulty in social or
occupational functioning.” Id. at 32. But the most recent edition of the DSM omits the GAF scale
“for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk,
and disabilities in its descriptors) and questionable psychometrics in routine practice.” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013),
16.
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Because the record does not reflect further testing, the Commissioner should consider ordering
such tests on remand if she finds Plaintiff’s mental functional impairments do not preclude work
activities.
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IED is characterized by unpremeditated, recurrent behavioral outbursts manifested by verbal or
physical aggression, the magnitude of which is grossly out of proportion to the provocation or to
any precipitating psychosocial stressors. The outbursts either cause distress in the individual or
impair occupational or interpersonal functioning, or are associated with financial or legal
consequences. IED is a proper diagnosis if the recurrent outbursts are not better explained by
another mental disorder. DSM-V, 466-467.

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The ALJ’s reliance on Dr. Kamm to diagnose Plaintiff’s mental impairments complied
with Agency regulations. As Dr. Kamm is an “acceptable medical source,” as defined in the
regulations,5 her diagnoses established the existence of Plaintiff’s mental impairments.
B. Opinions Regarding Severity of Plaintiff’s Mental Impairments
But the ALJ ran afoul of the regulations in his consideration of the evidence from three
medical sources regarding the severity of Plaintiff’s mental impairments: evidence from Plaintiff’s
mental health provider; evidence from a State agency physician; and evidence from a State agency
psychologist.
In this case, the Plaintiff’s treating mental health provider was Jennifer Zachary, APRNCNP.

The ALJ described Ms. Zachary as a family nurse practitioner, Board certified in

psychiatric/mental health nursing. AR 22. As reported by Ms. Zachary, Plaintiff had previously
been treated by a Dr. Heller who had diagnosed Plaintiff with attention deficit hyperactivity
disorder (ADHD) and oppositional defiant disorder (ODD).6 AR 365. After further treatment,
Ms. Zachary also diagnosed Plaintiff with schizoaffective disorder and personality disorder.7 AR

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The term “medical source” refers to both “acceptable medical sources” and other health care
providers who are not “acceptable medical sources.” See 20 C.F.R. § 416.902. Relevant to this
action, “acceptable medical sources” include licensed physicians and licensed or certified
psychologists. See 20 C.F.R. § 416.913(a).

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ODD, like IED, is categorized as an impulse control or conduct disorder. “While other disorders
in DSM-5 may also involve problems in emotional and/or behavioral regulation, the disorders in
this chapter are unique in that these problems are manifested in behaviors that violate the rights of
others (e.g., aggression, destruction of property) and/or that bring the individual into significant
conflict with societal norms or authority figures.”
See http://dx.doi.org/10.1176/appi.books.9780890425596.dsm15 (last accessed May 25, 2017).
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APRN Zachary’s diagnosis differs from that of Dr. Kamm who diagnosed IED rather than
schizoaffective disorder. The functional limitations resulting from Ms. Zachary’s diagnosis do
not, however, necessarily conflict with the functional limitations that would result from Dr.
Kamm’s diagnosis of IED. According to the DSM, IED is diagnosed when the recurrent
aggressive outbursts are not better explained by another mental disorder. DSM-V, 466.
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365-366. In a typical treatment note, Ms. Zachary described Plaintiff as “very angry in general”
with a history of abuse and abandonment since birth. She notes he was born addicted to cocaine.
Ms. Zachary completed two statements describing the severity and limiting effects of Plaintiff’s
mental impairments. AR 363, 401-403. She typically rated Plaintiff’s GAF at 58.
In a Mental Status Form dated June 24, 2013, Ms. Zachary described Plaintiff as paranoid,
because he believed people were looking at him and talking about him. For that reason, she stated,
he preferred to stay home and play video games and had little interest in other activities. Ms.
Zachary’s prognosis was not promising; she stated her opinion that Plaintiff had probably reached
his full potential and would need long-term therapy and medication management. Although she
believed he could perform simple tasks, Ms. Zachary stated Plaintiff became easily frustrated when
attempting complex tasks. As for dealing with work situations and authority, Ms. Zachary stated
Plaintiff finds it “extremely difficult” to adjust to any authority and becomes angry and violent
when frustrated or paranoid. She did not believe Plaintiff had the ability to manage his own funds.
AR 363.
In a more detailed Medical Source Statement of Ability to Do Work-Related Activities
(Mental), dated July 14, 2014, Ms. Zachary indicated Plaintiff has moderate limitations in
understanding and carrying out simple tasks; marked limitations in understanding and carrying out
complex tasks; and extreme limitations in the ability to make judgments on simple or complex
work-related decisions. In her opinion, Plaintiff is “unable to work with authority figures; angers
easily, [and] cannot complete tasks without angry episodes.” AR 401. She rated Plaintiff as
extremely limited in his ability to interact appropriately with the public, supervisors and coworkers, or respond appropriately to usual work situations and changes in routine work setting.
The factors underlying Ms. Zachary’s ratings are Plaintiff’s inability to adjust to changes in routine

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because of his propensity to anger and become aggressive and because he becomes paranoid in
large groups. She stated his mind is constantly racing and worrying. She noted he does not sleep
well. Ms. Zachary had treated Plaintiff for two years when she completed the Medical Source
Statement. AR 402.
The evidence from Ms. Zachary is largely consistent with the diagnoses of Dr. Kamm. But
the ALJ gave Ms. Zachary’s opinions “little weight” despite her status as Plaintiff’s treating mental
health provider. AR 23. To support the weight he afforded her opinions, the ALJ relied in large
part on the GAF scores Ms. Zachary had assessed. The ALJ concluded the GAF scores indicated
only moderate to mild symptoms and were “certainly not indicative of many marked to extreme
limitations she assessed.” AR 23. But the ALJ’s use of GAF scores to determine, in effect,
Plaintiff’s non-disability does not constitute substantial evidence.
As discussed supra n. 2, the American Psychiatric Association has abandoned the use of
GAF scores in its latest publication of the DSM-V. Moreover, the Commissioner has declined to
endorse the GAF scale for “use in the Social Security and SSI disability programs,” and has
indicated that GAF scores have no “direct correlation to the severity requirements of the mental
disorders listings.” 65 Fed. Reg. 50746, 50746–65 (2000). GAF scores have always been
considered no more than a snapshot of a patient’s functioning at the time of examination and never
determinative of overall disability. See Kornecky v. Commissioner of Soc. Sec., 167 F. App’x 496,
511 (6th Cir. 2006) (noting “according to the DSM’s explanation of the GAF scale, a score may
have little or no bearing on the subject’s social and occupational functioning”). Moreover, as the
SSA has found, the GAF scale “does not have a direct correlation to the [paragraph B criteria] in
our mental disorders listings.” See Revised Medical Criteria for Evaluating Mental Disorders and
Traumatic Brain Injury, 65 Fed. Reg. 50, 746; 50, 765–65 (Aug. 21, 2000).

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Furthermore, in Administrative Message 13066 (“AM–13066”), the SSA explained the
shortcomings of a GAF rating:
[A] GAF needs supporting evidence to be given much weight. By itself, the GAF
cannot be used to “raise” or “lower” someone’s level of function. The GAF is only
a snapshot opinion about the level of functioning. It is one opinion that we consider
with all the evidence about a person’s functioning. Unless the clinician clearly
explains the reasons behind his or her GAF rating, and the period to which the rating
applies, it does not provide a reliable longitudinal picture of the claimant’s mental
functioning for a disability analysis.
See Soc. Sec. Admin., Global Assessment of Functioning (GAF) Evidence in Disability
Adjudication, AM–13066 (July 22, 2013) REV (Oct. 14, 2014); see also Tilles v. Commissioner
of Social Security, 2015 WL 1454919 at *33 (S.D.N.Y. Mar. 31, 2015); Brannon v. Colvin, 2015
WL 4479708, at *4 (M.D. Tenn. Jul. 21, 2015) (“The problem with using the GAF to evaluate
disability is that there is no way to standardize measurement and evaluation. Some clinicians give
inflated or unrealistically low GAF ratings because the GAF rating instructions in the DSM–IV–
TR are unclear ... [this] can lead to improper assessment of impairment severity.”) (quoting AM–
13066).
Additionally, the ALJ erred in relying on only selected portions of Dr. Kamm’s report to
discount the evidence provided by APRN Zachary:
[T]he psychiatrist8 reported the claimant evidenced no apparent problems with
alertness or focus. He was friendly with the examiner and answered all questions
in a relevant and appropriate manner. His speech was logical and goal directed.
His affect was euthymic. There were no indications of paranoia, response to
internal stimuli, or presence of delusions.
AR 23. Dr. Kamm’s description of Plaintiff’s demeanor during the consultative examination does
not, however, constitute substantial evidence to support the ALJ’s rejection of Ms. Zachary’s

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Dr. Kamm is a licensed psychologist, not a psychiatrist. AR 312.

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conclusion that Plaintiff could not relate appropriately to supervisors or co-workers or complete
tasks without angry episodes. “[T]he very nature of an intermittent explosive disorder is that it is,
in fact, intermittent, and thus it punctuates what otherwise might be unremarkable conduct.
Overton v. Astrue, 2010 WL 5363000 at *2 (C.D. CA Dec. 20, 2010) (emphasis added) (internal
citation omitted). Moreover, the Commissioner is not allowed to “pick and choose among medical
reports, using portions of evidence favorable to his position while ignoring other evidence.”
Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004) (citation omitted).9
The ALJ erred in affording “great weight” to the opinions of the two State agency, nonexamining medical sources who completed MRFC and PRT forms. On March 15, 2013, Dr. Sally
Varghese diagnosed Plaintiff with “personality disorders.” AR 318. She rated Plaintiff as
moderately limited in restrictions of daily living; maintaining social functioning; and maintaining
concentration, persistence and pace.

She found Plaintiff had had one or two episodes of

decompensation, each of extended duration, but she included no description of these episodes. AR
328. Despite the “moderate” limitations she assessed, Dr. Varghese found Plaintiff’s allegations
credible. AR 330. In her MRFC assessment, Dr. Varghese found Plaintiff markedly limited in the
ability to understand, remember and carry out detailed instructions and in the ability to interact
appropriately with the general public. AR 314-315. However, she found no significant limitations
in the ability to accept instructions and respond appropriately to criticism from supervisors. AR
315. In her summary, Dr. Varghese found:

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Additionally, the ALJ erred in failing to use the factors set out in 20 C.F.R. § 416.927(c) in
weighing APRN Zachary’s opinion. Those factors include: length of the treatment relationship
and the frequency of examination; nature and extent of the treatment relationship; supportability;
consistency; specialization; and other factors. They are applicable to opinions of both “acceptable
medical sources” and other medical sources.

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He reports difficulty with anger management and becoming physically destructive,
therefore he should avoid working with the general public. He is able to perform
simple routine tasks, and relate to others for work purposes.
AR 316. Dr. Varghese does not explain why Plaintiff’s “personality disorder” would not preclude
him from being able to “relate to others for work purposes” when it prevents him from working
with the general public.
On July 12, 2013, Ron Cummings, Ph. D. completed a second set of PRT and MRFC forms.
AR 385-397. He assessed Plaintiff with organic mental disorders (ADHD), affective disorders
(depression), anxiety related disorders (social anxiety) and personality disorders (IED). AR 385392). Dr. Cummings’ MRFC is allegedly based on “work history and objective observations by
medical sources.” But Plaintiff had no work history, and Dr. Cummings did not identify the
“medical sources” upon which he relied or why he relied on those sources.
Dr. Cummings determined Plaintiff “is capable of adjusting to a work environment that
does not require good social skills[,]” but he also noted Plaintiff “[m]ay require more than typical
level of supervision initially.” Ultimately, Dr. Cummings suggested Plaintiff could “perform tasks
independently once tasks are learned.” AR 383. In his summary, Dr. Cummings states:
Claimant can perform simple tasks with routine supervision. Claimant can relate
to supervisors and peers on a superficial work basis. Claimant cannot work
effectively with the general public but can tolerate incidental contact at a superficial
level. Claimant can adapt to a work situation.
Id.
The ALJ relied on these opinions of non-examining State agency physicians in determining
the severity of Plaintiff’s mental health impairments. But under the regulations, the opinions of
examining sources are generally afforded more weight than the opinions of non-examining
sources. 20 C.F.R. § 416.927. It is true that Plaintiff’s mental health provider is not an “acceptable
medical source.” See 20 C.F.R. § 416.902. But the ALJ is charged with considering and weighing

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every medical opinion in a claimant’s record. Even though only “acceptable medical sources” can
provide evidence to establish the existence of a medically determinable impairment, see 20 C.F.R.
§ 416.913(a), the opinions of “other sources,” including nurse practitioners, may provide evidence
“to show the severity of [a claimant’s] impairment(s) and how it affects [a claimant’s] ability to
work.” 20 C.F.R. § 416.913(d) (emphasis added).
The Agency promulgated Social Security Ruling 06-03p (SSR 06-03p), 2006 WL 2329939
(Aug. 9, 2006) to “clarify how [it] consider[s] opinions from sources who are not ‘acceptable
medical sources[.]’” SSR 06–03p at *1. Recognizing the growth of managed healthcare in recent
years and the increased use of medical sources who are not technically “acceptable medical
sources,” the Ruling states that “[o]pinions from these medical sources ... are important and should
be evaluated on key issues such as impairment severity and functional effects, along with the other
relevant evidence in the file.” Id. at *3.
The factors for weighing the opinions of “acceptable medical sources” set out in 20 C.F.R.
§ 416.927(d) apply equally to “all opinions from medical sources who are not ‘acceptable medical
sources.’” Id. at *4. Thus, depending on the facts in a case, an opinion from a medical source
who is not an “acceptable medical source” may outweigh the opinion of an “acceptable medical
source,” even when that acceptable medical source is also a treating source. For example, it may
be appropriate to give more weight to the opinion of a medical source who is not an “acceptable
medical source” if he or she has seen the individual more often than the acceptable medical treating
source and has provided better supporting evidence and a better explanation for his or her opinion.
Id. at *5. Such is the situation in this case.
In sum, the ALJ’s mental RFC is not supported by substantial evidence in the record as a
whole. On remand, the ALJ should carefully consider all medical source opinions and weigh them

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using the appropriate factors. Accordingly, this matter must be reversed and remanded for further
consideration consistent with this Memorandum Opinion and Order.
VI.

Conclusion
For the reasons set forth, the Court reverses the decision of the Commissioner and remands

the matter for further proceedings consistent with this Memorandum Opinion and Order.

ENTERED this 5th day of June, 2017.

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