NIXON v. COLVIN

Filing 18

MEMORANDUM SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/7/16. 6/8/16 ENTERED AND COPIES E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHAMINE NIXON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Defendant.

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CIVIL ACTION
NO. 14-4322

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

June 7, 2016

Chamine Nixon (“Plaintiff”) brought this action
pursuant to 42 U.S.C. § 405(g), seeking judicial review of the
decision of Carolyn W. Colvin (“Commissioner” or “Defendant”) –
acting Commissioner of the Social Security Administration
(“SSA”) – denying Plaintiff’s application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under the Social Security Act. Upon consideration of the
administrative record, submitted pleadings, Magistrate Judge
Thomas J. Rueter’s Report and Recommendation (“R&R”), and
Plaintiff’s Objections thereto, the Court will remand for

additional explanation concerning, or reconsideration of,
portions of Defendant’s decision.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
On September 13, 2010, Plaintiff filed an application

for DIB and SSI, alleging that she became disabled on September
1, 2008. R. 197-203. According to Plaintiff and various doctors,
Plaintiff suffers from multiple ailments, including sleep apnea,
R. 15; obesity, R. 16; chronic pain, R. 19; and a number of
mental health issues, R. 19. Plaintiff, who was in her early 30s
when she filed for benefits, last worked as a cashier in a
supermarket and stopped working after being injured in a slip
and fall accident in 2009. R. 35-37, 44. After the accident,
Plaintiff attempted to get her supermarket job back, but was not
rehired because she could not perform the job duties. R. 37.
Since then, she has made several other attempts to work, but has
been unable to hold a job due to her chronic pain. R. 43.
An administrative law judge (“ALJ”) held a hearing on
Plaintiff’s claim on September 25, 2012. R. 30. Plaintiff and a
vocational expert (“VE”) testified. R. 31. On November 20, 2012,
the ALJ issued an unfavorable decision, finding that Plaintiff
is not disabled for the purposes of the Social Security Act. R.

1

Citations to “R.” are citations to the administrative
record, which is located on the docket at ECF number 6.
2

13-24. Plaintiff sought review by the Appeals Council, which
denied her request R. 1-3.
Plaintiff commenced the present action on July 17,
2014, seeking judicial review of the ALJ’s decision pursuant to
42 U.S.C. § 405(g). ECF No. 1. On August 12, 2015, Magistrate
Judge Thomas J. Rueter entered a Report and Recommendation,
recommending that Plaintiff’s request for review be denied and
judgment be entered in favor of Defendant. ECF No. 13. Plaintiff
filed an Objection, ECF No. 14, and the matter is now ripe for
disposition.
II.

STANDARD OF REVIEW
The Court undertakes a de novo review of the portions

of the R&R to which the plaintiff has objected. See 28 U.S.C.
§ 636(b)(1); Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150
F.3d 245, 250 (3d Cir. 1998). The Court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
In reviewing the Commissioner’s final determination
that a person is not disabled and, therefore, not entitled to
Social Security benefits, the Court may not independently weigh
the evidence or substitute its own conclusions for those reached
by the ALJ. See Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir.
2002). Instead, the Court must review the factual findings

3

presented to determine whether they are supported by substantial
evidence. See 42 U.S.C. § 405(g); Rutherford v. Barnhart, 399
F.3d 546, 552 (3d Cir. 2005).
Substantial evidence constitutes that which a
“reasonable mind might accept as adequate to support a
conclusion.” Rutherford, 399 F.3d at 552 (internal quotation
marks omitted). “It is ‘more than a mere scintilla but may be
somewhat less than a preponderance of the evidence.’” Id.
(quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.
1971)). If the ALJ’s decision is supported by substantial
evidence, the Court may not set it aside “even if [the Court]
would have decided the factual inquiry differently.” Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
An ALJ uses a five-step inquiry to determine if a
plaintiff is entitled to SSI benefits. Basically, a plaintiff
must establish that (1) she is not engaged in any “substantial
gainful activity,” and (2) she suffers from a severe impairment.
Jesurum v. Sec’y of Health & Human Servs., 48 F.3d 114, 117 (3d
Cir. 1995) (citing Bowen v. Yuckert, 482 U.S. 137, 140-41
(1987)). If the plaintiff satisfies these two elements, the
Commissioner determines (3) whether the impairment is as severe
as the impairments listed in 20 C.F.R. pt. 404, Subpt. P, App.
1, which creates a presumption of disability. Id.

4

If the plaintiff’s medical impairment is not “listed,”
the plaintiff must prove that (4) “the impairment nonetheless
prevents her from performing work that she has performed in the
past.” Id. The relevant inquiry is whether the plaintiff
“retains the residual functional capacity to perform her past
relevant work.” Fargnoli v. Massanari, 247 F.3d 34, 39 (3d Cir.
2001). If the plaintiff proves she does not, the Commissioner
must grant her benefits unless the Commissioner can demonstrate
(5) that considering the plaintiff’s residual functional
capacity (“RFC”), age, education, and work experience, there are
jobs available in significant numbers in the national economy
that the plaintiff can perform. Jesurum, 48 F.3d at 117 (citing
Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)).
III. THE ALJ’S DECISION
Using the five-step inquiry described above, the ALJ
determined that Plaintiff is not disabled.
At step one, the ALJ found that Plaintiff has not
engaged in substantial gainful activity since she applied for
benefits. R. 15.
At step two, the ALJ found that Plaintiff suffers from
the following severe impairments: depressive disorder and
obesity. R. 15.

5

At step three, the ALJ found that Plaintiff’s
impairments do not meet or medically equal the severity of one
of the listed impairments in 20 C.F.R. pt. 404, Subpt. P, App.
1. R. 16.
At step four, the ALJ found that Plaintiff has the
residual functional capacity (“RFC”) to perform light, simple
work in a low-stress environment with limited contact with the
public and coworkers. R. 18. The ALJ further found that
Plaintiff is unable to perform any past relevant work. R. 22-23.
At step five, relying on the testimony of the VE, the
ALJ found that there are jobs available in significant numbers
in the national economy that claimant can perform. R. 23. Such
jobs include assembler, inspector, and packer. R. 24. The ALJ
thus found that Plaintiff is not entitled to the requested
benefits. R. 24.
IV.

DISCUSSION
Plaintiff brings only one issue for review by the

Court: whether the ALJ erred by failing to discuss Plaintiff’s
Global Assessment of Functioning (“GAF”) score of 45.
“A GAF score is a ‘numerical summary of a clinician’s
judgment of [an] individual’s overall level of
functioning . . . .’” Rivera v. Astrue, 9 F. Supp. 3d 495, 504
(E.D. Pa. 2014) (quoting American Psychiatric Association:

6

Diagnostic and Statistical Manual of Mental Disorders 32 (4th
ed. 2000) [hereinafter DSM-IV]). The GAF scale is “used by
mental health professionals to ‘assess current treatment needs
and provide a prognosis.’” Colon v. Barnhart, 424 F. Supp. 2d
805, 812 (E.D. Pa. 2006) (quoting 66 Fed. Reg. 50746, 50764-65
(2000)). A score of “50 or below indicates serious symptoms,
while a GAF score of 51 through 60 indicates moderate symptoms.”
Rivera, 9 F. Supp. 3d. at 504 (citing DSM-IV at 32, 34).
In recent years, however, the GAF scale has “fallen
somewhat into disfavor,” as the American Psychiatric Association
abandoned the GAF scale in the most recent edition of the DSM
(“DSM-V”). Kroh v. Colvin, No. 13-1533, 2014 WL 4384675, at *17
(M.D. Pa. Sept. 4, 2014). As a result of the DSM-V, the SSA
issued an Administrative Message (“AM”) in July 2013,
instructing ALJs “on how to consider Global Assessment of
Functioning (GAF) ratings when assessing disability claims
involving mental disorders.” AM-13066 (July 22, 2013).
Critically, the AM notes that even though the DSM-V eliminated
the GAF scale, the SSA “will continue to receive and consider
GAF in medical evidence.” Id. Specifically, “a GAF rating is a
medical opinion as defined in 20 CFR §§ 404.1527(a)(2) and
416.927(a)(2).2 An adjudicator considers a GAF score with all of

2

Medical opinions are defined as “statements from
physicians and psychologists or other acceptable medical sources
7

the relevant evidence in the case file . . . .” Id. Accordingly,
the Court looks to the general guidelines concerning the
evaluation of opinion evidence to determine how GAF scores
should be considered by an ALJ.
Opinions from treating sources are generally given
more weight than opinions from other sources. 20 C.F.R.
§ 416.927(c)(2). In fact, so long as a treating source’s opinion
is “well-supported” and “not inconsistent with the other
substantial evidence,” it is given “controlling weight.” Id.
Either way, an ALJ is to “give good reasons . . . for the
weight” she gives to a treating source’s opinion. Id. The AM
reiterates this standard and specifically applies it to GAF
scores, instructing ALJs that “[w]hen case evidence includes a
GAF from a treating source and you do not give it controlling
weight, you must provide good reasons in the personalized
disability explanation or decision notice.” AM-13066. In short,
an ALJ must “evaluate adequately all relevant evidence,”
including GAF scores, and “explain the basis of his
conclusions.” Fargnoli, 247 F.3d at 40.

that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis,
what you can still do despite impairment(s), and your physical
or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2).
8

This standard does not, as Plaintiff urges, create or
imply a bright-line rule that a case must be remanded if the ALJ
failed to address any GAF scores. There was no such rule before
the DSM-V eliminated the GAF scale, see Packard v. Astrue, No.
11-7323, 2012 WL 4717890, at *2-3 (E.D. Pa. Oct. 4, 2012)
(reviewing cases and summarizing the pre-DSM-V law on GAF
scores), and there is still no such rule today. That is, a GAF
score does not trigger any unique requirements for the ALJ to
fulfill; the failure to invoke the number itself does not
require remand. Rather, the question is whether the ALJ
“conduct[ed] a thorough analysis of the medical evidence
regarding plaintiff’s mental impairments,” Rivera v. Astrue, 9
F. Supp. 3d 495, 506-07 (E.D. Pa. 2014), such that the ALJ
properly “addressed the issues on which plaintiff’s GAF scores
were based,” Lee v. Colvin, No. 11-4641, 2014 WL 2586935, at *2
(E.D. Pa. June 10, 2014). In other words, even if the ALJ did
not specifically mention an actual GAF number, she has provided
“good reasons” for discounting the GAF score if she adequately
explained why she discounted the whole of the source’s opinion.
In this case, Plaintiff has received at least two
different GAF scores from three doctors. First, on December 5,
2010, Dr. Ely Sapol gave Plaintiff a GAF score of 57, indicating
moderate symptoms. R. 352. The ALJ noted this score in her
decision denying benefits. R. 19 (“She was also assigned a
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Global Assessment of Functioning (GAF) score of 57, indicating
only moderate difficulty in functioning.” (citation omitted)).
Shortly thereafter, on December 28, 2010,3 Dr. Carol Henderson –
Plaintiff’s primary care provider (a treating source) – gave
Plaintiff a GAF score of 45. R. 359. Dr. David Frankel –
Plaintiff’s treating psychiatrist – also gave Plaintiff a score
of 45 at some point in mid-2011 and repeated it in treatment
notes through mid-2012.4 R. 508, 505, 502, 500, 497, 495,5 493,
3

The date is possibly December 8, 2010; the digits are
unclear. R. 359.
4

The origin of Dr. Frankel’s repeated GAF score of 45
is somewhat unclear. Each iteration of the score in Dr.
Frankel’s treatment notes appears in a section labeled
“Diagnosis.” The Diagnosis section is identical in each form,
always including the same “Date Created” (06/06/2011), as well
as Plaintiff’s diagnosed disorders, medical conditions,
stressors, and GAF score of 45 (which is always labeled as the
“Current” score). Accordingly, Defendant asserts that this score
was created on June 6, 2011, and simply repeated throughout Dr.
Frankel’s treatment notes. Def.’s Resp. 5, ECF No. 9. But Dr.
Frankel’s notes from June 6, 2011, do not actually mention a GAF
score at any point. See R. 513-16. Rather, Dr. Frankel’s
assessment of 45 first appears in his notes from July 7, 2011,
where it appears in the Diagnosis section (06/06/2011 creation
date and all).
At any rate, it is clear that Dr. Frankel at some
point gave Plaintiff a GAF score of 45, and did not change that
score during a dozen subsequent appointments over the course of
a year. To state either that Dr. Frankel independently affirmed
that score during each visit or that the score was simply copied
and pasted from one visit to the next would be nothing more than
speculation.
5

This particular score appeared on a treatment form
filled out by Tennille Chambers, M.A., identified as an “intake
assessor/therapist” at Community Council Health Systems, where
Dr. Frankel also works. R. 496. Like the Dr. Frankel scores,
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492, 489, 487, 485, 482. The ALJ did not discuss these scores of
45 at any time, which Plaintiff contends is error. The question,
then, is whether the ALJ adequately discussed the opinions in
which the scores of 45 appeared.
The ALJ said the following about Dr. Henderson’s and
Dr. Frankel’s opinions:
The record also contains multiple Department
of
Public
Welfare
employability
assessment
forms. . . . On September 16, 2010, the claimant’s
primary
care
physician
Carol
Henderson,
D.O.
determined that the claimant was temporarily disabled
from September 16, 2010 until September 17, 2011
because of chronic and daily cephalgia, status post
multiple fractures of her left foot, anxiety and
depression. One year later on June 7, 2012, Dr.
Henderson opined that the claimant is permanently
disabled due to morbid obesity, chronic low back pain
syndrome, bipolar, and osteoarthritis at multiple
sites. On June 29, 2012, the claimant’s psychiatrist
David Frankel, M.D., expressed that the claimant was
temporarily disabled from June 29, 2012 until June 29,
2013 due to major depressive disorder. These opinions
are given little weight, as they are quite conclusory,
providing very little explanation of the evidence
relied
on
in
forming
such
opinions
and
are
inconsistent with the objective medical evidence of
record. Specifically, with regard to the physical
issues a consultative examination was grossly normal.
Additionally,
all
diagnostic
testing
has
been
unremarkable and she reported that she recently lost
twenty-five pounds. She has also been cleared for
bariatric
surgery.
Concerning
her
mental
health
issues, during her most recent therapy session with
her psychiatrist she reported that she had no
psychiatric symptoms, was having no problems, and felt
that her medication regimen was working. Furthermore,
the decision on an individual’s ultimate ability to
this score appears within the same repeated Diagnosis section.
R. 495.
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work
for
purposes
of
disability
benefits
or
supplemental security income is an issue reserved to
the Commissioner. For these reasons, the employability
assessment forms are given little weight.
R. 22 (citations omitted).
Upon first glance, it appears that this explanation
offers “good reasons” that the ALJ rejected these doctors’
opinions. Critically, however, this discussion evaluates only a
narrow slice of the doctors’ medical opinions – and not a slice
containing the GAF scores. The ALJ did not even reference the
forms on which Dr. Henderson and Dr. Frankel assessed Plaintiff
with a GAF score of 45. Indeed, the “employability assessment
forms” that the ALJ discusses are different forms entirely,
filled out on different dates than the forms containing the GAF
scores.6 The ALJ gave no indication that she took into account
the parts of Dr. Henderson’s and Dr. Frankel’s opinions that
were not included on the employability assessment forms. As is,
the ALJ’s decision gives the impression that Dr. Henderson and
Dr. Frankel produced only these particular forms during their
treatment of Plaintiff, which is not the case.7
6

Dr. Henderson’s GAF score, in particular, came several
months after she filled out the employability assessment form.
The Court has no way to know whether the ALJ considered the
possibility that Dr. Henderson changed her assessment of
Plaintiff in the intervening time.
7

If this were the case, and the GAF scores appeared on
the employability assessment forms and nowhere else, then the
ALJ’s explanation would likely be sufficient.
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On this record, the Court cannot know whether the ALJ
considered the GAF scores of 45 and dismissed them for the same
reasons she dismissed Dr. Henderson’s and Dr. Frankel’s
employability assessment forms, or whether she simply missed or
ignored those parts of the doctors’ opinions. See Cotter v.
Harris, 642 F.2d 700, 705 (3d Cir. 1981) (“[W]e need from the
ALJ . . . some indication of the evidence which was rejected. In
the absence of such an indication, the reviewing court cannot
tell if significant probative evidence was not credited or
simply ignored.”); Rivera, 9 F. Supp. 3d at 502 (“[The ALJ] must
explain the evidence supporting his findings and the reasons for
discounting the evidence he rejects. Otherwise, the reviewing
court cannot determine whether significant probative evidence
was improperly rejected or ignored.”); see also Irizarry v.
Barnhart, 233 F. App’x 189, 192 (3d Cir. 2007) (nonprecedential)
(remanding where an ALJ not only failed to mention GAF scores,
but also “omit[ted] any discussion of” the medical opinions
containing those scores). Therefore, the ALJ failed to provide
good reasons for her rejection of Plaintiff’s GAF scores of 45,
and remand is required.

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V.

CONCLUSION
For the foregoing reasons, the Court will remand to

the ALJ for additional explanation or consideration of
Plaintiff’s GAF scores.

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