Pritz v. Commissioner of Social Security Administration

Filing 24

MEMORANDUM OPINION AND ORDER. The court affirms the Commissioner's decision. Signed by Magistrate Judge Suzanne Mitchell on 1/10/18. (lb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JO ANNA PRTIZ,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case No. CIV-17-0224-SM

MEMORANDUM OPINION AND ORDER
Jo Anna Pritz (Plaintiff) brings this action for judicial review of the
Defendant Acting Commissioner of Social Security’s (Commissioner) final
decision she was not “disabled” under the terms of the Social Security Act. See
42 U.S.C. §§ 405(g), 423(d)(1)(A). The parties have consented under 28 U.S.C.
§ 636(c) to proceed before a United States Magistrate Judge. Docs. 8, 14.1
Following a careful review of the parties’ briefs, the administrative record (AR),
and the relevant authority, the court affirms the Commissioner’s decision.

Citations to the parties’ pleadings and attached exhibits will refer to this
Court’s CM/ECF pagination. Citation to the state court records will refer to the
original pagination.
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I.

Administrative determination.
A.

Disability standard.

The Social Security Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration requirement
applies to the claimant’s inability to engage in any substantial gainful activity,
and not just his underlying impairment.” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B.

Burden of proof.

Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that he can no longer engage in his prior work activity.”
Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that
prima facie showing, the burden of proof then shifts to the Commissioner to
show Plaintiff “retains the capacity to perform an alternative work activity and
that this specific type of job exists in the national economy.” Id. (citation
omitted).
C.

Relevant findings.

After remand from the Appeals Council, the ALJ assigned to Plaintiff’s
case applied the standard regulatory analysis and concluded Plaintiff had not
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met her burden of proof.

AR 443-456; see 20 C.F.R. §§ 404.1520(a)(4) &

416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
(describing the five-step analysis). Specifically, the ALJ found Plaintiff:
(1)

was severely impaired, first, by obesity, second, by
hypertension, third, by major depressive disorder, fourth, by
status post cerebral vascular accident, fifth, by vision
disorder in right eye, sixth, by left vertebral artery occlusion,
seventh, by panic disorder without agoraphobia, eighth , by
dysthymic disorder, and ninth, by posttraumatic stress
disorder;

(2)

did not have an impairment or combination of impairments
that met or medically equaled the severity of a listed
impairment;

(3)

had the residual functional capacity (RFC)2 to perform light
work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
with additional limitations, particularly that she can
occasionally climb ramps, stairs, balance, stoop, kneel,
crouch, and crawl, cannot climb ladders, ropes, or scaffolds,
can read small and large print and can work with small and
large objects, can avoid ordinary hazards in the workplace
but still must avoid even moderate exposure to hazards, such
as unprotected heights and heavy machinery, must avoid
environments with moving objects approaching from the
right, can understand, remember, and carry out simple,
routine, and repetitive tasks, can relate to supervisors and
coworkers on a superficial work basis, can respond to usual
work situations, and can have no contact with the general
public;

(4)

could not perform her past relevant work;

Residual functional capacity “is the most [a claimant] can still do despite
[a claimant’s] limitations.” 20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1).
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(5)

could perform jobs that exist in significant numbers in the
national economy, such as collator operator, routing clerk,
and mail sorter; and so,

(6)

had not been under a disability, as defined in the Social
Security Act, from April 8, 2010 through June 27, 2016.

AR 446-56.
D.

Appeals Council action.

The Social Security Administration’s (SSA) Appeals Council reviewed
Plaintiff’s written exceptions and determined they, in consideration with the
entire record, provided no basis for changing the ALJ’s decision. Id. at 432; see
also id. at 432-36. The ALJ’s decision is thus the Commissioner’s final decision.
See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II.

Judicial review of the Commissioner’s final decision.
A.

Review standards.

A court reviews the Commissioner’s final “decision to determine whether
the factual findings are supported by substantial evidence and whether the
correct legal standards were applied.” Mays v. Colvin, 739 F.3d 569, 571 (10th
Cir. 2014) (internal quotation marks omitted). Substantial evidence is “more
than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084. A
decision is not based on substantial evidence “if it is overwhelmed by other
evidence in the record.” Wall, 561 F.3d at 1052 (internal quotation marks
omitted). The court “cannot reweigh the evidence or substitute [its] judgment
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for that of the administrative law judge’s.” Smith v. Colvin, 821 F.3d 1264,
1266 (10th Cir. 2016).
Further, “if the ALJ failed to apply the correct legal test, there is a ground
for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993). However, the court “must ‘exercise
common sense’ in reviewing an ALJ’s decision and must not ‘insist on technical
perfection.’” Jones v. Colvin, 514 F. App’x 813, 823 (10th Cir. 2013) (quoting
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (2012)). The ALJ’s decision must
be evaluated “based solely on the reasons stated in the decision.” Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).

A “post hoc rationale is

improper because it usurps the agency’s function of weighing and balancing the
evidence in the first instance.” Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th
Cir. 2008).
B.

Plaintiff’s claims of error.

Plaintiff argues the ALJ committed legal error when he (1) failed to
“recognize all of [her] psychological impairments”; and (2) “did not properly
consider all of her physical impairments, notably the impact of her visual
problems and her poor balance.” Doc. 18, at 3, 9.

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C.

Whether the ALJ erred in “recognizing all of [Plaintiff’s]
psychological impairments.” Id. at 3-9.
1.

Legal standards.

“[O]nce a mental impairment is considered to be severe, it must be
included in the residual functional capacity assessment[.]” Hargis v. Sullivan,
945 F.2d 1482, 1488 (10th Cir. 1991). The ALJ must take into account “[a]ll
medically determinable impairments, including non-severe impairments . . in
assessing a claimant's RFC.” Mushero v. Astrue, 384 F. App’x 693, 695 (10th
Cir. 2010) (citing 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)); see also Wells v.
Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013) (“[T]o the extent the ALJ relied on
his finding of non-severity as a substitute for adequate RFC analysis, the
Commissioner’s regulations demand a more thorough analysis.”) The RFC
need only include such limitations as the medical record substantially supports.
See Arles v. Astrue, 438 F. App’x 735, 740 (10th Cir. 2011) (rejecting plaintiff’s
claim that a limitation should have been included in his RFC because “such a
limitation has no support in the record”).
Plaintiff alleges that “ALJ’s limitation to simple work and no working
around the general public” fails to address her “obvious psychological problems,
and her cognitive disorder.” Doc. 18, at 4. The ALJ noted she has “moderate
restriction” in her activities of daily living, and “moderate difficulties” in social
functioning and concentration, persistence, or pace.
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AR 449.

She has

experienced “no episodes of decompensation.” Id. at 450. He noted Plaintiff
“achieved a score of 23 of 30 possible points on the [Montreal Cognitive
Assessment (MOCA)], suggesting the presence of cognitive problems.” Id. at
448. And he noted Plaintiff’s 2013 Global Assessment of Functioning [GAF]
score “was 45, in the serious symptom range.” Id.
Dr. Ray Hand administered the MOCA, an objective test. AR 1100. Her
score of 23 suggested a cognitive impairment. Id.; see also Ireland v. Colvin,
No. CIV.A. 14-1012-JWL, 2014 WL 7185008, at *4 (D. Kan. Dec. 16, 2014)
(where speech-language pathologist “performed a [MOCA] of Plaintiff, who
scored 23 of 30 on the assessment, suggesting mild cognitive impairment.”)
(citing

http://www.mocatest.org/normative—data.asp).

The

ALJ

acknowledged Dr. Hand’s statement that Plaintiff’s “most likely [Diagnostic
and Statistical Manual of Mental Disorders (DSM-IV)] diagnoses are cognitive
disorder NOS (not otherwise specified), major depression, and post-traumatic
stress disorder.” AR 448, 1101.3 Plaintiff argues that the ALJ erred in not
limiting her RFC to account for this score, for her Montreal Cognitive

To the extent the ALJ should have included a diagnosis of cognitive
disorder NOS as a severe mental impairment, Doc. 18, at 7, the Commissioner
is correct any error here was harmless. Ray v. Colvin, 657 F. App’x 733, 734
(10th Cir. 2016) (stating any error “is not reversible” because “the ALJ
proceed[ed] further to evaluate other impairments” in the remaining steps of
the sequential evaluation).
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Assessment score, and for her cognitive disorder. Id. The undersigned again
disagrees.
Plaintiff takes issue with the ALJ’s heavy reliance on the state-agency
physicians’ opinions, who, she argues, “ignore[d her] abnormal cognitive
findings.”

Doc. 23, at 2.

The ALJ documented his psychological review

technique findings and noted the RFC “reflects the degree of limitation” found
in his mental function analysis. AR 450. The ALJ gave great weight to the
psychological review technique form and mental RFC assessments the state
agency consultants performed. Id. at 453. These assessments contain a series
of questions that are directed at determining the ability to perform sustained
work activities. See id. at 364-66, 368-80, 393, 565-623. Those questions
include the ability to understand, remember, and carry out instructions of
varying degrees of complexity as well as a number of other work-related
abilities. Id. at 364-65, 378, 574-75, 588-89, 604-05, 620-21. The state-agency
physicians also considered her MOCA results. Id. at 570, 584, 600, 616. The
consultants summarized their mental RFC conclusions as including Plaintiff’s
ability to perform simple tasks with routine supervision, relate to supervisors
and peers on a superficial work basis, and adapt to a work situation. Id. at 366,
574-75, 588-89, 604-05, 620-21. The ALJ included the same mental limitations
in the RFC, although phrased slightly differently. Id. at 450. Substantial

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evidence supports the ALJ’s RFC assessment.4
Plaintiff also argues that although the ALJ mentioned the GAF scores (a
2010 score of 57 and a 2013 score of 45), he failed to incorporate them into his
decision. Doc. 18, at 6-7; AR 448, 447). As to the ALJ’s treatment of the GAF
score, the ALJ stated: “[A]s it pertains to vocational capacity, a GAF rating,
standing by itself, has little probative value.” AR 453.
“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, 695 F.3d at 1162 n.1. A
GAF score of 41-50 indicates “‘[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school function (e.g., no friends, unable to keep a job).’” KeyesZachary, 695 F.3d at 1162 n.1 (quoting DSM-IV-TR at 34). A score of 51-60
indicates “‘[m]oderate symptoms (e.g., flat affect and circumstantial speech,

To the extent Plaintiff argues the ALJ did not adequately consider her
moderate limitations of social functioning and concentration, persistence, or
pace, substantial evidence supports the ALJ’s RFC assessment on that score as
well. AR 366, 574-75, 588-89, 604-05, 620-21; 450; see Beasley v. Colvin, 520 F.
App’x 748, 754 (10th Cir. 2013) “[An] ALJ’s finding of ‘moderate difficulties’ in
social functioning in the ‘paragraph B’ criteria does not necessarily translate to
a work-related functional limitation for the purposes of the RFC assessment,”
so, the ALJ “was under no obligation to include limitations in social functioning
in [Plaintiff’s] RFC based solely on his finding that she had ‘moderate
difficulties’ in social functioning as part of the distinct step-three analysis.”).
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occasional panic attacks) OR moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers).’” Id.
A low GAF score, standing alone, is insufficient to prove disability: “[T]he
Commissioner does not consider GAF scores to have a direct correlation to the
severity requirements in the mental disorders listings, and the [DSM-IV], 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). Plaintiff’s citation
to the GAF scores, without more, does not show that the GAF score was
“significantly probative” or that the ALJ’s omission of further discussion of this
score undermined the RFC determination. See Clifton v. Chater, 79 F.3d 1007,
1010 (10th Cir.1996) (noting that an ALJ “is not required to discuss every piece
of

evidence”

but

must

discuss

“evidence

supporting

his

decision,”

“uncontroverted evidence he chooses not to rely upon,” and “significantly
probative evidence he rejects”).
Plaintiff can point to no medical evidence of record indicating GAF scores
affected her functional abilities.

In considering the GAF scores, the ALJ

“looked to other factors,” including mental status examinations, credible
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medical opinions of record, medical findings of record, and his resolution of
Plaintiff’s credibility. AR 453. Substantial evidence supports the ALJ’s RFC
formulation.
The court finds the ALJ considered Plaintiff’s severe and non-severe
mental impairments throughout the sequential evaluation process, performed
the proper analysis under step four, and that substantial evidence supports the
RFC findings of the ALJ.
D.

Whether the ALJ “properly consider[ed Plaintiff’s] physical
impairments, notably the impact of her visual problems and
her poor balance.” Doc. 18, at 9-12.
1.

Visual acuity.

The ALJ’s RFC noted Plaintiff “can read small and large print and can
work with small and large objects,” she must “avoid even moderate exposure to
hazards, such as unprotected heights and heavy machinery,” and she “must
avoid environments with moving objects approaching from the right.” AR 450.
The ALJ asked the vocational expert to identify jobs with such limitations, and
the vocational expert identified collator operator, DOT No. 208.685-010,
routing clerk, DOT No. 222.587-038, and mail sorter, DOT No. 222.687-022. 5
Id. at 455.

The Dictionary of Occupational Titles or “DOT” as published by the
Department of Labor is one of several publications from which the Social
Security Administration “will take administrative notice of reliable job
information.” 20 C.F.R. § 404.1566(d)(1).
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Plaintiff argues the DOT’s collator-operator definition is flawed as it
suggests a “blind person” could perform the job.

Doc. 18, at 10.

As the

Commissioner points out, the Selected Characteristics of Occupations Defined
in the Revised DOT App. C, No. 15 (U.S. Dep’t of Labor, Employment &
Training Admin. 1993) defines “near acuity” as “clarity of vision at 20 inches or
less,” and “far acuity” as “clarity of vision at 20 feet or more.” Doc. 22, at 14
n.5. The DOT does not rate acuity at distances between twenty inches and
twenty feet. See Selected Characteristics of Occupations Defined in the Revised
DOT App. C, No. 15. “The Commissioner accepts the DOT’s definitions as
reliable evidence at step four of ‘the functional demands and job duties’ of a
claimant’s past job ‘as it is usually performed in the national economy.’”
Haddock v. Apfel, 196 F.3d 1084, 1090 (10th Cir.1999) (quoting SSR 82-61,
1982 WL 31387, at *2); see 20 C.F.R. § 404.1566(d)(1).
With respect to the change in her left temporal field of vision, Doc. 23, at
2-3, Doc. 18, at 10-11, the ALJ acknowledged the ophthalmologist’s consultative
exam and the doctor’s recommendation of bifocal glasses. AR 448, 1119. The
ALJ did not err by not including in the RFC assessment limitations that the
record did not support. See Qualls v. Apfel, 206 F.3d 1368, 1372-73 (10th Cir.
2000).
Plaintiff also argues the ALJ ignored her subjective complaints of
intermittent ability to use her vision, impairment of near vision, peripheral
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vision loss, a blind spot in her right eye, poor depth perception, and eye fatigue,
and the need to use large print to read. Doc. 18, at 10. Elsewhere in the
decision, the ALJ discounted Plaintiff’s credibility, finding it “not entirely
consistent with the medical evidence and other evidence in the record . . . .” AR
454, 451; see Barnhill-Stemley v. Colvin, 607 F. App’x 811, 817 (10th Cir. 2015)
(ALJ properly discounted claimant’s descriptions of the severity and disabling
effect of her limitations based on “lack of medical evidence to support the
subjective nature of her reported symptoms and discrepancies between her
statements and the medical evidence”). And Plaintiff does not challenge the
ALJ’s credibility assessment.
2.

Balance and medication side effects.

As to Plaintiff’s balance issues and medication side effects, to the extent
Plaintiff relies on her testimony, the ALJ discounted her credibility, which
Plaintiff does not challenge. AR 451, 454. She points to Dr. Robin Hall’s
assessment of her weak toe and heel walking, secondary to poor balance. Doc.
18, at 11; Doc. 23, at 3; AR 1088. Dr. Hall also noted Plaintiff “ambulates with
a stable, steady and safe gait at a slow speed without the use of any assistive
devices.” AR 1088. Substantial evidence supports the ALJ’s consideration of
Plaintiff’s physical impairments and the RFC assessment.

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III.

Conclusion.
The court affirms the Commissioner’s decision.
ENTERED this 10th day of January, 2018.

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