Giroux v. Commissioner of Social Security Administration
Filing
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MEMORANDUM OPINION AND ORDER -- The Court has reviewed the medical evidence, the administrative hearing transcript, the ALJ'S decision, and the parties' pleadings and briefs. Based on the forgoing analysis, the Court AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Shon T. Erwin on 11/14/17. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BRYAN GIROUX,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
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Case No. CIV-17-139-STE
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of the Social Security Administration denying Plaintiff’s
applications for benefits under the Social Security Act. The Commissioner has answered
and filed a transcript of the administrative record (hereinafter TR. ____). The parties have
consented to jurisdiction over this matter by a United States magistrate judge pursuant
to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court AFFIRMS the
Commissioner’s decision.
I.
PROCEDURAL BACKGROUND
The Social Security Administration denied Plaintiff’s applications initially and on
reconsideration. Following an administrative hearing, an Administrative Law Judge (ALJ)
issued an unfavorable decision. (TR. 10-20). The Appeals Council denied Plaintiff’s
request for review. (TR. 1-4). Thus, the decision of the ALJ became the final decision of
the Commissioner.
II.
THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency
regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged
in substantial gainful activity (SGA) since May 1, 2013, the alleged disability onset date.
(TR. 12). At step two, the ALJ determined that Mr. Giroux had the following severe
impairments: borderline intellectual functioning, dysthymic disorder, and cognitive
disorder, NOS. (TR. 12). At step three, the ALJ found that Plaintiff’s impairments did not
meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R.
Part 404, Subpart P, Appendix 1. (TR. 14).
The ALJ next assessed Plaintiff’s residual functional capacity (RFC) and found he
could:
[P]erform a full range of work at all exertional levels, but with the following
non-exertional limitations: the claimant can understand, remember, and
carry out simple, routine, and repetitive tasks; the claimant can respond
appropriately to supervisors, coworkers, and usual work situations, but he
can have no contact with the general public.
(TR. 16). Then, “[u]nder the expedited process,” the ALJ moved past step four, and at
step five, he presented several hypothetical questions to a vocational expert (VE) to
determine whether there were jobs in the national economy that Plaintiff could perform.
(TR. 18, 52). The VE identified three jobs from the Dictionary of Occupational Titles. (TR.
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52). The ALJ adopted the VE’s testimony and concluded that Mr. Giroux was not disabled
based on his ability to perform the identified jobs. (TR. 19).
III.
ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ erred in: (1) assessing the consultative
evaluation opinion from Dr. Julie Wallace; (2) failing to consider whether Plaintiff could
perform the relevant work on a consistent basis; (3) improperly relying on Plaintiff’s daily
activities; and (4) crafting an improper question to the VE.
IV.
STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether the
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted).
While the Court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, it will “neither reweigh the
evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d
1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V.
ANALYSIS
A.
Dr. Wallace’s Opinion
The SSA ordered a consultative examination and Dr. Wallace performed the onetime assessment. (TR. 317-321). Dr. Wallace rated Mr. Giroux’s GAF as 31-41 and
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concluded he suffered, in relevant part, from dysthymia and borderline intellectual
functioning. (TR. 319-320). The consultative physician believed that Plaintiff was “likely
to be taken advantage of by others” and was unable to manage funds, but did not include
any functional limitations in her assessment. (TR. 319-320).
Plaintiff does not dispute that the ALJ considered Dr. Wallace’s assessment and
detailed all her conclusions. (TR. 12-13, 15). Instead, Plaintiff first claims that the ALJ
failed to explain what weight, if any, he gave the examiner’s opinion. (ECF No. 14:3-4, 811). Then, he takes issue with the ALJ’s rejection of the Plaintiff’s GAF score. (ECF No.
14:8-10). Finally, Plaintiff alleges that the ALJ failed to include limitations in the RFC that
would account for Dr. Wallace’s findings that Plaintiff needed instructions repeated and
would work at a slower pace. (ECF No. 14:4, 10). The Court rejects these arguments.
1.
The ALJ’s Failure to Assign Weight
According to Plaintiff, the ALJ violated the “treating physician rule” because he
“never determined the weight to be granted to the Consultative Examiner (CE) who’s [sic]
opinion conflicts with the ALJ’s finding.” (ECF No. 14:8). But Plaintiff’s argument suffers
from a fatal flaw in that he neglects to identify what opinion the ALJ failed to evaluate.
Outside of the specific GAF score, which the Court addresses below, Plaintiff only cites to
Dr. Wallace’s assessments regarding Plaintiff’s speech, thought processes, and “child-like
demeanor.” (ECF No. 14:3-4, 10).
Under the treating physician rule, an ALJ must assign weight to a physician’s
opinion regarding a claimant’s limitations. Allman v. Colvin, 813 F.3d 1326, 1331 (10th
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Cir. 2016). But an ALJ is not required to assign any specific weight to an assessment
which “[does] not assign any functional limitations” to a claimant. Paulson v. Colvin, 665
F. App’x 660, 666 (10th Cir. 2016) (rejecting plaintiff’s claim that the ALJ erred in not
assigning the consultative examiner’s opinion a specific weight because the physician
failed to assign any functional limitations to the plaintiff); see also Singleton v. Colvin,
No. 15-cv-00886-CBS, 2016 WL 7157487, at *9 (D. Colo. Dec. 6, 2016) (finding “no error
in the ALJ’s treatment of the opinions” which “did not include functional limitations”).
Moreover, while Plaintiff’s attorney obviously believes that Mr. Giroux’s slow speech and
thought processes render him unable to work, the ALJ clearly considered this evidence
and concluded otherwise. (TR. 12-13, 15). The Court cannot reweigh the evidence and
reach a different conclusion based on counsel’s speculation that Plaintiff cannot work.
See Vigil, 805 F.3d at 1201 (internal quotation marks omitted) (the court will “neither
reweigh the evidence nor substitute [its] judgment for that of the agency.”).
Plaintiff has simply failed to show any reversible error in the ALJ’s assessment of
Dr. Wallace’s consultative examination conclusions.
2.
Plaintiff’s GAF Score
“The GAF is a 100–point scale divided into ten numerical ranges, which permits
clinicians to assign a single ranged score to a person’s psychological, social, and
occupational functioning.” Keyes–Zachary v. Astrue, 695 F.3d 1156, 1162 n. 1 (10th Cir.
2012). Dr. Wallace concluded that Plaintiff had a GAF score of 31-41. (TR. 320). A GAF
score of 31–40 indicates “[s]ome impairment in reality testing or communication ... OR
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major impairment in several areas, such as work, school, family relations, judgment,
thinking or mood.” Cainglit v. Barnhart, 85 F. App’x 71, 75 (10th Cir. 2003). “A GAF score
of 41–50 indicates ‘[s]erious symptoms . . . [or] serious impairment in social,
occupational, or school functioning,’ such as inability to keep a job.” Langley v. Barnhart,
373 F.3d 1116, 1122, n.3 (10th Cir. 2004).
Plaintiff does not articulate how, exactly, the ALJ erred in discussing the GAF score
but clearly believes the GAF score “reflected an inability to work.” (ECF No. 14:8). But as
the ALJ noted, Plaintiff’s GAF score was only “based on that one interview” with Dr.
Wallace. (TR. 17, 320). And, a low GAF score, standing alone, is insufficient to prove
disability. “[T]he Social Security Administration does not consider GAF scores to have a
direct correlation to the severity requirements in [the] mental disorders listings, and the
[ ] Diagnostic and Statistical Manual of Mental Disorders has discontinued its use because
of “its conceptual lack of clarity . . . and questionable psychometrics in routine practice.”
Rose v. Colvin, 634 F. App’x. 632, 636 (10th Cir. 2015) (internal quotation marks and
citations omitted); see also Butler v. Astrue, 412 F. App’x 144, 147 (10th Cir. 2011)
(noting that GAF scores that are not linked to any work-related limitations are not
particularly helpful and cannot alone determine disability).
Because the ALJ considered Plaintiff’s GAF score and the score itself was not
significantly probative, the Court rejects any argument suggesting reversal on the issue.
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3.
Dr. Wallace’s Conclusions and the RFC
Dr. Wallace noted that Plaintiff needed directions repeated at least once and was
slow in responding. (TR. 319). Plaintiff wonders why the ALJ did not account for these
limitations in the RFC, (ECF No. 14:4), but his argument is meritless. First, as discussed
above, Dr. Wallace did not articulate any functional limitations but only described
Plaintiff’s reactions during her one-time assessment. Second, two State agency
psychologists reviewed Dr. Wallace’s assessment and opined that Plaintiff was not
significantly limited in his ability to understand and remember “very short and simple
instructions.” (TR. 61, 63-64, 73, 87, 89-90, 100, 102-103). The ALJ gave those opinions
great weight, (TR. 17), and Plaintiff does not challenge that weight assignment.
Incorporating those opinions into Plaintiff’s RFC, the ALJ specifically noted Plaintiff could
only “understand, remember, and carry out simple, routine, and repetitive tasks.” (TR.
16). Plaintiff does not explain how these restrictions fail to account for his slow responses
and need for repetitive instructions, even assuming such limitations were warranted. As
such, the Court affirms on this issue. See Kirkpatrick v. Colvin, 663 F. App’x 646, 649
(10th Cir. 2016) (rejecting plaintiff’s argument regarding the alleged omission of certain
limitations in an RFC because “[plaintiff] doesn’t explain how these restrictions [in the
RFC] fail to account for his [limitations]”).1
Plaintiff also suggests the RFC is “flawed” because “it is too general in nature . . . .” (ECF No.
14:2, 12). Aside from his claim involving the hypothetical question to the VE, discussed below,
Plaintiff does not develop any further argument on this issue. The Court will of course not develop
it for him. See Keyes-Zachary, 695 F.3d at 1161 (“We will consider and discuss only those
contentions that have been adequately briefed for review.”).
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4.
Summary
The Court rejects Plaintiff’s allegation of error regarding the ALJ’s treatment of
evidence from Dr. Wallace. The record reflects that the ALJ thoroughly and properly
assessed Dr. Wallace’s conclusions, including Plaintiff’s GAF score, and the Court will not
reweigh the evidence. Finally, the Court finds that to the extent it was even necessary,
Plaintiff’s RFC sufficiently accounts for his slow responses and need for repetitive
instructions.
B.
Plaintiff’s Ability to Sustain Work
Plaintiff next argues that the ALJ failed to consider whether he would be able to
sustain work for eight hours a day, five days a week, or hold a job for a significant time
without decompensating. (ECF No. 14:4-6, 8). However, aside from claiming the “earning
records reflect Mr. Giroux never approach[ed] SGA levels” (ECF No. 14:4) – a claim
absolutely belied by the record for many years2 – Plaintiff cites no evidence in the record
showing he is incapable of working eight-hours a day and maintaining employment.
Further, the ALJ’s finding that Plaintiff could maintain a work schedule and long-term
employment is implicit in the RFC assessment. See SSR 96-8p, 1996 WL 374184, at *1
(noting the RFC “is an assessment of an individual’s ability to do sustained work-related
physical and mental activities in a work setting on a regular and continuing basis. A
The record reflects that Plaintiff engaged in SGA in 1983, 1986, 1987, 1988, 1989, 1990, 1994,
1995, 1996, and 1997. (TR. 230). Visit https://www.ssa.gov/oact/cola/sga.html for monthly SGA
amounts for non-blind disabled persons.
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‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent
work schedule.”). Accordingly, the Court finds no grounds for reversal on this point.
C.
Plaintiff’s Daily Activities
Plaintiff also challenges the ALJ’s reliance on his daily activities to find him not
disabled, claiming “‘sporadic performance of household tasks or work does not establish
that a person is capable of engaging in substantial gainful activity.’” (ECF No. 14:6)
(citation omitted). The Court finds no error.
Though “sporadic” household tasks may not constitute substantial evidence that a
person can engage in SGA, an ALJ should in fact consider the nature of a claimant’s daily
activities. Thompson v. Sullivan, 987 F.2d 1482, 1489-90 (10th Cir. 1993) (citations
omitted). Here, the ALJ noted that Plaintiff told the consultative examiners that he utilized
public transportation, lived alone, and did his own cooking, cleaning, and shopping. (TR.
15). At the hearing, Plaintiff testified he took “regular classes” in high school, except for
math, and could read, write, and make change with no difficulty. (TR. 17, 33-35). Plaintiff
also claimed he could drive and had taken the written driver’s test. (TR. 17, 35-36).
Plaintiff further testified he paid his own bills, and could check his e-mails. (TR. 17, 38).
In sum, Plaintiff’s own description of his daily activities are not “sporadic” and show him
capable of performing simple, routine, and repetitive tasks. As such, Plaintiff has shown
no error in the ALJ’s consideration of this evidence. See Newbold v. Colvin, 718 F.3d
12587, 1267-68 (10th Cir. 2013) (holding the ALJ properly considered the plaintiff’s daily
activities in the disability analysis).
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D.
The Hypothetical Question to the VE
In his final argument, Plaintiff alleges that the ALJ’s hypothetical question to the
VE failed to “relate with specificity” the Plaintiff’s “specific impairments” and “failed to
utilize all of the Plaintiff’s impairments.” (ECF No. 14:10-11). In particular, Plaintiff
complains about the terms “simple” and “routine” in the hypothetical question. (ECF No.
14:11). Again, the Court finds no grounds for reversal.
Plaintiff is correct that before a VE’s testimony can constitute substantial evidence,
the hypothetical question posed to the expert must precisely relate a claimant’s
impairments. See Bainbridge v. Colvin, 618 F. App’x 384, 391 (10th Cir. 2015). But that
question “must contain ‘only those impairments borne out by the evidentiary record.’” Id.
(citation and internal ellipsis omitted)). Here, the ALJ asked the VE whether jobs would
be available for a claimant who could “understand, remember, and carry out simple
routine, repetitive tasks” and “respond appropriately to supervision, coworkers, [and]
usual work situations” but with “no contact with the general public.” (TR. 52). The Court
has already concluded that the RFC properly accounted for Mr. Giroux’s slow responses
and need for repetitive directions, and fatally, Plaintiff articulates no other specific
limitations which the VE should have included. See, e.g., McAnally v. Astrue, 241 F. App’x
515, 518 (10th Cir. 2007) (holding “the claimant has shown no error by the ALJ because
she does not identify any functional limitations that should have been included in the RFC
[assessment]”). Finally, Plaintiff fails to explain why the hypothetical question’s reference
to simple and routine work did not adequately address his limitations and the Court finds
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no error on this point. See Richards v. Colvin, 640 F. App’x 786, 790 (10th Cir. 2016); see
also Rivera v. Colvin, 629 F. App’x 842, 846 (10th Cir. 2015) (“[The ALJ] found that Rivera
could understand, remember, and carry out simple instructions, and that she could
occasionally interact with supervisors and coworkers, but should have no contact with the
public. The ALJ included all of these limitations in his hypothetical questions to the VE.
The VE’s answer was therefore sufficient to support the ALJ’s disability decision.”).
ORDER
The Court has reviewed the medical evidence, the administrative hearing
transcript, the ALJ’s decision, and the parties’ pleadings and briefs. Based on the forgoing
analysis, the Court AFFIRMS the Commissioner’s decision.
ENTERED on November 14, 2017.
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