Harris-Nutall v. Colvin
Filing
21
MEMORANDUM OPINION denying 18 Motion for Summary Judgment filed by Yvonne M Harris-Nutall and granting 19 Cross MOTION for Summary Judgment. The Commissioner's decision is affirmed. (Ordered by Judge Sidney A Fitzwater on 7/19/2016) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
YVONNE M. HARRIS-NUTALL,
Plaintiff,
VS.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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§ Civil Action No. 3:15-CV-3334-D
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MEMORANDUM OPINION
Plaintiff Yvonne Marie Harris-Nutall (“Harris-Nutall”) brings this action under §
205(g) of the Social Security Act, 42 U.S.C. § 405(g) (the “Act”), for judicial review of the
final decision of the Commissioner of Social Security (“Commissioner”) denying her claim
for disability insurance benefits (“DIB”) under Title II of the Act. For the reasons that
follow, the Commissioner’s decision is affirmed.
I
Harris-Nutall filed an application for DIB under Title II of the Act in January 2012,
alleging a disability beginning March 16, 2011, due to hypertension, diabetes, high
cholesterol, depression, anxiety, anemia, post-traumatic stress disorder (“PTSD”), low back
pain,
hyperlipidemia,
diminished
hearing,
hypothyroidism, and neck and shoulder.
polyclonal hypergammaglobulinemia,
The Commissioner denied Harris-Nutall’s
application initially and on reconsideration. Following a hearing, the administrative law
judge (“ALJ”) found that Harris-Nutall is “not disabled.” The Appeals Council denied
Harris-Nutall’s request for review, and the ALJ’s decision became the final decision of the
Commissioner.
In making her decision, the ALJ followed the five-step sequential process prescribed
in 20 C.F.R. § 416.920(a). At step one, she found that Harris-Nutall has not engaged in
substantial gainful activity since March 16, 2011, her alleged onset date. At step two, the
ALJ found that Harris-Nutall has severe impairments of early diabetic neuropathy (feet),
obese with a past history of morbid obesity, degenerative disc disease of the cervical spine,
left sounder tendinitis/bursitis, bipolar disorder, and anxiety. At step three, the ALJ found
that Harris-Nutall’s impairments failed to meet or equal a listed impairment for presumptive
disability under 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found that HarrisNutall has the residual functional capacity (“RFC”) to
lift/carry 10 pounds frequently and 20 pounds occasionally,
stand/walk 6 hours in an 8-hour workday, and sit 6 hours in an
8-hour workday. The claimant’s ability to push/pull would be
limited to the weights given. The claimant is unable to climb
ladders, ropes, and scaffolds and more than occasionally climb
ramps and stairs or crawl. The claimant can frequently stoop,
crouch, and kneel and engage in occasional contact with
coworkers, supervisors, and the public. The claimant can do
detailed, but not complex tasks.
R. 17. At step four, the ALJ found that Harris-Nutall cannot perform her past relevant work
as a probation/parole officer, corrections officer, case manager, administrative assistant, and
counselor. At step five, where the burden shifts to the Commissioner, the ALJ found, based
on the vocational expert’s (“VE’s”) testimony, that Harris-Nutall is capable of performing
other jobs existing in significant numbers in the national economy, such as electrical
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accessories assembler, small products assembler, and marker II. Accordingly, the ALJ
concluded that Harris-Nutall had not been under a disability at any time between May 16,
2011 (alleged onset date) and April 17, 2015 (ALJ’s decision date).
Harris-Nutall maintains on two grounds that the Commissioner’s decision must be
reversed: first, the ALJ erred in failing to find Harris-Nutall’s impairments meet or equal
listing 1.04A in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listing 1.04A”); and, second,
the ALJ’s RFC finding is not supported by substantial evidence.
II
The court’s review of the Commissioner’s decision is limited to determining whether
substantial evidence supports the decision and whether the Commissioner applied the proper
legal standards to evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995);
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam). “The Commissioner’s
decision is granted great deference and will not be disturbed unless the reviewing court
cannot find substantial evidence in the record to support the Commissioner’s decision or
finds that the Commissioner made an error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th
Cir. 1995) (footnotes omitted).
“The court may not reweigh the evidence or try the issues de novo or substitute its
judgment for that of the [Commissioner].” Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.
1984) (citations omitted). “If the Commissioner’s findings are supported by substantial
evidence, then the findings are conclusive and the Commissioner’s decision must be
affirmed.” Martinez, 64 F.3d at 173. “Substantial evidence is ‘such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.’” Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“It is more than a mere scintilla, and less than a preponderance.” Spellman v. Shalala, 1 F.3d
357, 360 (5th Cir. 1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990) (per
curiam)). “To make a finding of ‘no substantial evidence,’ [the court] must conclude that
there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’”
Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir. 1983) (citation omitted). Even if the court
should determine that the evidence preponderates in the claimant’s favor, the court must still
affirm the Commissioner’s findings if there is substantial evidence to support these findings.
See Carry v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of conflicting
evidence is for the Commissioner rather than for the court. See Patton v. Schweiker, 697
F.2d 590, 592 (5th Cir. 1983) (per curiam).
For purposes of social security determinations, “disability” means an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which 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). In determining whether an applicant is disabled, the Commissioner follows
a five-step sequential analysis. See, e.g., Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir.
2005). If the Commissioner finds that the claimant is disabled or is not disabled at any step
in the analysis, the analysis is terminated. Id. Under the five-step sequential inquiry the
Commissioner considers whether (1) the claimant is presently engaged in substantial gainful
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activity, (2) the claimant’s impairment is severe, (3) the claimant’s impairment meets or
equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) the impairment
prevents the claimant from doing past relevant work, and (5) the claimant cannot presently
perform relevant work that exists in significant numbers in the national economy. See, e.g.,
Leggett, 67 F.3d at 563 n.2; Martinez, 64 F.3d at 173-74; 20 C.F.R. § 404.1520(a)(4). “The
burden of proof is on the claimant for the first four steps, but shifts to the [Commissioner]
at step five.” Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (per curiam) (citing
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per curiam)). At step five, once
the Commissioner demonstrates that other jobs are available to a claimant, the burden of
proof shifts to the claimant to rebut this finding. Selders v. Sullivan, 914 F.2d 614, 618 (5th
Cir. 1990) (per curiam).
When determining the propriety of a decision of “not disabled,” this court’s function
is to ascertain whether the record considered as a whole contains substantial evidence that
supports the final decision of the Commissioner, as trier of fact. The court weighs four
elements of proof to decide if there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant’s
subjective evidence of pain and disability; and (4) age, education, and work history.
Martinez, 64 F.3d at 174 (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per
curiam)). “The ALJ has a duty to develop the facts fully and fairly relating to an applicant’s
claim for disability benefits.” Ripley, 67 F.3d at 557. “If the ALJ does not satisfy [this] duty,
[the] decision is not substantially justified.” Id. Reversal of the Commissioner’s decision
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is appropriate, however, “only if the applicant shows that [she] was prejudiced.” Id. The
court will not overturn a procedurally imperfect administrative ruling unless the substantive
rights of a party have been prejudiced. See Smith v. Chater, 962 F. Supp. 980, 984 (N.D.
Tex. 1997) (Fitzwater, J.).
III
Harris-Nutall maintains that the ALJ erred in failing to find at step three that her
impairments meet or equal Listing 1.04A.
A
1
Listing 1.04 describes “disorders of the spine,” such as “herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis,
vertebral fracture.” Listing 1.04. “To meet Listing 1.04, a claimant must first establish a
severe diagnosed spinal disorder ‘resulting in compromise of a nerve root (including the
cauda equina) or the spinal cord.’” Warren v. Colvin, 2014 WL 7059489, at *4 (N.D. Tex.
Dec. 15, 2014) (Horan, J.) (quoting Listing 1.04). “In addition to the diagnostic component,
a claimant must satisfy one of Listing 1.04’s three subparts, 1.04A, 1 .04B, or 1.04C—that
is, the severity component.” Id. “Each subpart describes different criteria that, if satisfied,
prove the claimant’s diagnosed spinal disorder is also severe enough to satisfy the Listing.”
Id. To meet the criteria of Listing 1.04A,
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the record must contain sufficient evidence of (a) “nerve root
compression characterized by neuro-anatomic distribution of
pain,” (b) “limitation of motion of the spine,” (c) “motor loss
(atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss,” and (d), “if there is
involvement of the lower back, positive straight-leg raising
test.”
Id. (quoting Listing 1.04A); see also Woods v. Colvin, 2015 WL 5311142, at *12 (N.D. Tex.
Aug. 26, 2015) (Ramirez, J.), rec. adopted, 2015 WL 5319926 (N.D. Tex. Sept. 10, 2015)
(Boyle, J.). Additionally, the claimant “must demonstrate the required loss of function for
a musculoskeletal impairment, which requires her to demonstrate ‘either an inability to
ambulate effectively on a sustained basis . . . , or the inability to perform fine and gross
movements effectively on a sustained basis.’” Woods, 2015 WL 5311142, at *12 (quoting
Audler v. Astrue, 501 F.3d 446, 449 (5th Cir. 2007)).
In Audler the Fifth Circuit held that the ALJ’s “bare conclusion” that the claimant’s
impairments were severe, but not severe enough to meet or medically equal one of the listed
impairments, was error because “[t]he ALJ did not identify the listed impairment for which
[the claimant’s] symptoms fail[ed] to qualify, nor did she provide any explanation as to how
she reached the conclusion that [the claimant’s] symptoms [were] insufficiently severe to
meet any listed impairment.” Audler, 501 F.3d at 448. The court explained that, “[b]y the
explicit terms of the statute, the ALJ was required to discuss the evidence offered in support
of [the claimant’s] claim for disability and to explain why she found [the claimant] not to be
disabled at that step.” Id. (citing 42 U.S.C. § 405(b)(1)). Noting that an ALJ is not “always
required to do an exhaustive point-by-point discussion,” the court stated that it simply could
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not “‘tell whether her decision [was] based on substantial evidence’” because she “offered
nothing to support her conclusion at this step.” Id. (quoting Cook v. Heckler, 783 F.2d 1168,
1172 (4th Cir. 1986)).
2
Harris-Nutall maintains that the ALJ failed to support her step three finding with a
discussion of the relevant evidence in the record, as Audler requires. The Commissioner
responds that Audler is factually distinguishable because the ALJ in this case specifically
stated that she analyzed Harris-Nutall’s impairments under the required criteria of Listing
1.04A. The Commissioner also points out that the ALJ was not required to articulate all the
evidence she accepted and rejected.
The court agrees with the Commissioner that the ALJ here did more than the ALJ in
Audler because she specifically identified Listing 1.04. She found that “[t]here is no
evidence the claimant has experienced the degree of physical pain and functional limitation
required to meet or equal the criteria of Medical Listing 1.04, disorders of the back, or any
other Medical Listing(s).” R. 16. But the ALJ erred by failing to discuss the medical
evidence or provide the reasons for this determination. See, e.g., Woods, 2015 WL 5311142,
at *12 (holding that ALJ committed legal error, even though she identified Listing 1.04,
when “she failed to discuss any of the [claimant’s] medical evidence and explain how the
evidence did not meet the severity criteria of Listing 1.04”). The court’s inquiry, however,
does not end here. Instead, the court “must still determine whether this error was harmless.”
Audler, 501 F.3d at 448.
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B
1
“In considering whether a step three error was harmless in Audler, the Fifth Circuit
reviewed the evidence to determine whether the claimant had demonstrated that she satisfied
all the criteria of the Listing at issue.” Pannell v. Astrue, 2012 WL 4341813, at *3 (N.D.
Tex. Sept. 21, 2012) (Fitzwater, C.J.) (citing Audler, 501 F.3d at 448-49). The record
included findings from the claimant’s treating physician that satisfied the Listing, and “[n]o
medical evidence was introduced to contradict these findings.” Audler, 501 F.3d at 449. The
Audler panel concluded that, absent some explanation from the ALJ, the claimant “met her
burden of demonstrating that she meets the Listing,” and “her substantial rights were affected
by the ALJ’s failure to set out the bases for her decision at step three.” Id.
Under Audler, “[f]or a claimant to show that h[er] impairment matches a listing, it
must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990)
(emphasis in original); see also Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (per
curiam) (“[T]o secure a finding of disability without consideration of age, education, and
work experience, a claimant must establish that his impairment meets or equals an
impairment enumerated in the listing of impairments in the appendix to the regulations.”).
The criteria in the listings are “demanding and stringent.” Falco v. Shalala, 27 F.3d 160, 162
(5th Cir. 1994).
2
Harris-Nutall posits that the evidence in the record indicates that her cervical spine
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impairment meets or equals all the criteria of Listing 1.04A. She contends that the ALJ
concluded at step two that she has the severe impairment of degenerative disc disease of the
cervical spine. And she asserts that “[t]he record establishes that [her] cervical spine
impairment is accompanied by ‘evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, [and] motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by sensory or reflex
loss.’” P. Br. 5 (quoting Listing 1.04A). In support of these allegations, however, HarrisNutall merely cites over 750 pages in the record. Additionally, Harris-Nutall alleges that
“[t]he Veteran Administration’s [(“VA’s”)] records reflect that [she] had thecal sac
indentation that likely contacted the nerve root, which resulted in radiating pain to [her] left
upper extremity, impaired sensory perception to light touch, and weakness.” Id. But she
again merely cites the same 750 pages in the record. Finally, citing to 42 pages in the record,
Harris-Nutall asserts that “[her] range of motion has also been severely limited.” Id. HarrisNutall’s citing generally to hundreds of pages in the record—without attempting to point to
specific evidence within these pages that establishes that each individual criteria of Listing
1.04A has been satisfied—is insufficient to meet her burden of showing that her impairment
meets or equals Listing 1.04A.
Furthermore, this case is unlike Audler because the Commissioner points to contrary
evidence in the record showing that Harris-Nutall’s impairments do not meet Listing 1.04A.
See Pannell, 2012 WL 4341813, at *5 (distinguishing Audler because, although some of the
medical records contained evidence that claimant’s impairments met Listing 1.04A, there
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was also contrary evidence). For instance, the findings from a magnetic resonance imaging
(“MRI”) test in January 2012 of Harris-Nutall’s cervical spine showed her “cervical cord
[was] not compressed,” R. 538, and the findings from another MRI taken in December 2014
do not mention nerve root compression. The court therefore concludes that there is
substantial evidence to support the ALJ’s finding that Harris-Nutall’s impairments did not
meet the requirements for Listing 1.04A. Accordingly, the ALJ’s error in failing to state
reasons for the adverse determination at step three is harmless and does not require reversal.
See Audler, 501 F.3d at 448-49; Pannell, 2012 WL 4341813, at *5.
IV
Harris-Nutall contends that the ALJ failed to include all limitations relating to her
impairments when formulating her RFC. Her argument appears to be two-fold. First, the
ALJ ignored evidence in the record showing that Harris-Nutall’s physical and mental
impairments cause greater limitations than her RFC reflects. Second, the ALJ failed to
properly evaluate the opinions of treating physicians, Gertha Shivakumar, M.D. (“Dr.
Shivakumar”) and Pramod Pinnamaneni, M.D. (“Dr. Pinnamaneni”).
A
Harris-Nutall accuses the ALJ of impermissibly picking and choosing only the record
evidence that supports her RFC finding, and she avers that the ALJ ignored record
evidence—specifically, her Global Assessment of Functioning (“GAF”) scores and her VA
disability rating—that show her physical and mental impairments cause greater limitations
than the RFC reflects.
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1
Harris-Nutall maintains that her GAF scores (between 45 to 60) reflect moderate to
serious symptoms that impair her functioning, and that her consistently low GAF scores
indicate a much higher degree of limitation than indicated in the RFC. The Commissioner
responds that the ALJ thoroughly considered all the evidence in the record and that the ALJ’s
RFC finding is supported by substantial evidence. The Commissioner also maintains that the
GAF scale is intended for use by practitioners in making treatment decisions, but GAF scores
have a limited significance in a disability controversy because they do not necessarily relate
to whether a claimant is disabled under the Act and may indicate problems that do not
necessarily relate to an ability to hold a job. And the Commissioner notes that she has
declined to endorse the use of the GAF scale, considering that the scale has no direct
correlation to the severity requirements in the mental disorder listings.
The court holds that the ALJ properly considered Harris-Nutall’s GAF scores, along
with the other evidence in the record, in reaching her RFC determination. “Under the
regulations and our case law, the determination of [RFC] is the sole responsibility of the
ALJ.” Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir. 2012) (per curiam) (citing Ripley,
67 F.3d at 557). The ALJ “is responsible for assessing the medical evidence and determining
the claimant’s [RFC].” Perez v. Heckler, 777 F.2d 298, 302 (5th Cir. 1985). The ALJ’s RFC
“assessment is not a medical opinion.” Joseph-Jack v. Barnhart, 80 Fed. Appx. 317, 318
(5th Cir. 2003) (per curiam) (citing 20 C.F.R. §§ 416.946, 416.927(e)).
“[F]ederal courts have declined to find such a strong correlation between an
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individual’s GAF score and the ability or inability to work.” Jackson v. Colvin, 2015 WL
7681262, at *3 (N.D. Tex. Nov. 5, 2015) (Cureton, J.) (citing 65 Fed. Reg. 50,746, 50,764-65
(Aug. 21, 2000) (declining to endorse the GAF scale for use in Social Security and SSI
disability programs, and stating that the GAF scale “does not have a direct correlation to the
severity requirements in our mental disorders listings”)), rec. adopted, 2015 WL 7582339
(N.D. Tex. Nov. 25, 2015) (McBryde, J.). “‘Rather a GAF score measures an individual’s
“overall level of functioning’ and is used for ‘planning treatment and measuring its impact,
and in predicting outcome.’” Id. (quoting American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed., rev. 2000) (“DSM–IV–TR”)). Notably,
“in the updated version of the DSM, the American Psychiatric Association no longer
recommends the use of the GAF scale as a diagnostic tool for assessing a patient’s
functioning due to ‘its conceptual lack of clarity . . . and questionable psychometrics in
routine practice.’” Spencer v. Colvin, 2016 WL 1259570, at *6 n.8 (W.D. Tex. Mar. 28,
2016) (quoting American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 16 (5th ed. 2013) (“DSM–V”)); see also Jackson, 2015 WL 7681262, at *3.
Moreover, “[t]he SSA published internal instructions regarding how to continue interpreting
GAF scores that appear in medical records, noting that such scores should be treated as
opinion evidence.” Jackson, 2015 WL 7681262, at *3 (citing SSA Administrative Message
13066 (effective July 22, 2013) (“AM–13066”)). The SSA further instructed that, “‘[a]s with
other opinion evidence, the extent to which an adjudicator can rely on the GAF rating as a
measure of impairment severity and mental functioning depends on whether the GAF rating
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is consistent with other evidence, how familiar the rater is with the claimant, and the rater’s
expertise.’” Id. (quoting AM–13066).
Harris-Nutall received multiple GAF scores, ranging from 45 to 60.1 A GAF score
of 51 to 60 indicates a “moderate” impairment in social, occupational, or school functioning,
and a GAF score of 41 to 50 indicates a “serious” impairment in social, occupational, or
school functioning. See DSM–IV–TR at 34. Regarding Harris-Nutall’s GAF scores, the ALJ
explained:
The evidence shows during 2011 the claimant was assessed with
a [GAF] as high as 65, which is consistent with only mild
limitations in social, occupational, and psychological
functioning.
Although symptom exacerbations were
intermittently reported, symptoms that included mood liability
and poor sleep, . . . with the exception of Christopher G. Bellah,
Ph.D. [(“Dr. Bellah”)], who assessed the claimant with a GAF
of 45 following an October 2, 2012 consultative psychological
evaluation, progress notes show through December 2012 the
claimant was assessed with GAF’s ranging from 50 to 60.
The evidence also indicates that Dr. Bellah’s assessment was
based primarily on the claimant’s subjective reports, as objective
findings on mental status evaluation revealed logical, goaldirected thought processes, an unremarkable mood, a normal
affect, intact memory, and an ability to successfully complete a
three-step command. Dr. Bellah’s findings do not support a
1
In her opinion, the ALJ stated that Harris-Nutall “was assessed with a [GAF] as high
as 65,” R. 21, but the parties agree that Harris Nutall’s GAF scores range from 45 to 60.
Harris-Nutall, however, does not raise this specific issue in her brief. Moreover, this
reference to a GAF score of 65 appears to be a typo on the part of the ALJ, considering that
she also stated that, “with the exception of Christopher G. Bellah, Ph.D., who assessed the
claimant with a GAF of 45 following an October 2, 2012 consultative psychological
evaluation, progress notes show through December 2012 the claimant was assessed with
[GAFs] ranging from 50 to 60.” Id.
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GAF of 45, nor do treatment records that show when examined
during 2013 the claimant presented euthymic and denied
ongoing problems with mood, energy, or focus despite
persisting problems with initial insomnia and increased daily
alcohol use since the death of her grandmother establish serious
limitations in function that would preclude competitive work[.]
R. 20-21 (internal citations omitted).
This discussion shows that the ALJ sufficiently considered Harris-Nutall’s GAF
scores and permissibly found that the low GAF score, as assessed by Dr. Bellah, was entitled
to little weight because it was based primarily on Harris-Nutall’s subjective reports and
conflicted with Dr. Bellah’s objective findings, as well as other record evidence. See
Jackson, 2015 WL 7681262, at *3 (“It is within the ALJ’s province to resolve conflicts when
an assigned GAF score by a treating source conflicts with the treating source’s own
descriptions of the patient’s mental symptoms and/or function.” (citation omitted)); see, e.g.,
id. *3-4 (holding that ALJ properly evaluated claimant’s GAF scores, ranging from 40 to 44,
“as he reported them throughout his decision” and found such scores were inconsistent with
the actual treatment records—that is, although treating physician’s GAF scores reflected very
little improvement, treating physician’s actual treatment records showed positive
improvements with her symptoms); Walker v. Colvin, 2015 WL 5836263, at *13 (N.D. Tex.
Sept. 30, 2015) (Ramirez, J.) (holding that ALJ did not fail to consider the importance of
GAF score because ALJ stated that consultative examiner gave claimant a GAF score of 60,
but that “[consultive examiner] also found that [claimant] made exaggerated statements and
that some of her statements at the hearing conflicted with those she made to [consultive
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examiner]”); Hawkins v. Astrue, 2011 WL 1107205, at *6 (N.D. Tex. Mar. 25, 2011)
(Kaplan, J.) (explaining that “ALJ was not required to accept [consultive medical
examiner’s] assessment of plaintiff’s GAF score [of 49] or explain the weight given to her
opinions” and holding that ALJ’s explanation—“that plaintiff’s low GAF score was
inconsistent with [consultive medical examiner’s] other findings”—satisfied ALJ’s duty
under the regulations); Spann v. Astrue, 2010 WL 815630, at *5 (N.D. Tex. Mar. 10, 2010)
(Koenig, J.) (holding that ALJ did not err by assigning no weight to claimant’s GAF score
because ALJ found that the score, which was assessed by psychiatrist, was not supported by
psychiatrist’s treatment notes or the record), rec. adopted, 2010 WL 815630 (Cummings, J.).
Accordingly, the ALJ’s explicit discussion of Harris-Nutall’s GAF scores satisfied her duty
under the regulations.
2
Harris-Nutall also maintains that the ALJ erred by disregarding her VA disability
rating, which she avers supports more severe limitations than the RFC reflects. The
Commissioner responds that a determination by the VA that a claimant is disabled is not
binding on the Commissioner because the criteria applied by the two agencies are different.
And the Commissioner maintains that the record evidence supports the ALJ’s decision not
to rely on Harris-Nutall’s VA disability rating.
The court holds that the ALJ did not err by failing to assign great weight to HarrisNutall’s VA disability rating. In Chambliss v. Massanari, 269 F.3d 520 (5th Cir. 2001) (per
curiam), the Fifth Circuit explained that “[a] VA rating of total and permanent disability is
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not legally binding on the Commissioner because the criteria applied by the two agencies
[are] different, but it is evidence that is entitled to a certain amount of weight and must be
considered by the ALJ.” Id. at 522 (citing cases). The court also explained that, while a VA
disability determination is entitled to “great weight” in most cases, “the relative weight to be
given this type of evidence will vary depending upon the factual circumstances of each case,”
and “[s]ince the regulations for disability status differ between the SSA and the VA, ALJs
need not give ‘great weight’ to a VA disability determination if they adequately explain the
valid reasons for not doing so.” Id.; see also Welch v. Barnhart, 337 F.Supp.2d 929, 935
(S.D. Tex. 2004) (“Where the ALJ disagrees with VA’s disability findings, there is no
reversible error as long as the record reflects consideration of those findings.” (citing Kinash
v. Callahan, 129 F.3d 736, 739 (5th Cir. 1997))). “Although there is no bright-line rule in
the case law or regulations setting forth what level of explanation or discussion of valid
reasons is necessary to be considered adequate, some level of discussion and/or scrutiny of
the VA disability determination is required.” Albo v. Colvin, 2013 WL 5526584, *8 (N.D.
Tex. Sept. 30, 2013) (Averitte, J.), rec. adopted, 2013 WL 5526584 (Robinson, J.).
Here, the VA assessed Harris-Nutall with a 90% service-connected disability rating
with the following related disabilities and ratings: PTSD (70%), hypertensive heart disease
(30%), tinnitus (10%), hypertensive vascular disease (10% ), and superficial scars (10%).
The ALJ specifically mentioned the VA disability rating in her opinion. She noted that the
“physical disability impairment ratings proposed by the [VA] through July 2013 . . . included
a [30%] disability due to hypertension heart disease, a [10%] disability due to tinnitus, a
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[10%] disability due to hypertensive vascular disease, and a [10%] disability due to
superficial scars,” R. 19 (citing R. 1543), and that “the evidence shows that [Harris-Nutall]
has been assessed with a [70%] disability rating due to PTSD by the VA, id. at 20; cf. Loza
v. Apfel, 219 F.3d 378, 395 (5th Cir. 2000) (holding there was reversible error when “ALJ
did not mention or scrutinize [the claimant’s] VA rating”).
The ALJ then provided reasons for assigning the VA disability rating little weight.
She stated that a VA disability rating “is not binding on the [SSA]” and concluded that
Harris-Nutall’s VA disability rating “[was] entitled to no weight” “given [Harris-Nutall’s]
daily activities, detailed above, and her medical history.” R. 20; see Harrell v. Bowen, 862
F.2d 471, 481 (5th Cir. 1988) (per curiam) (“Here, the ALJ expressly considered the VA
rating and rejected it as ‘not well supported by objective evidence[.]’”); see also Vaught v.
Astrue, 271 Fed. Appx. 452, 454-55 (5th Cir. 2008) (per curiam) (holding that ALJ took
account of VA disability rating and did not assign it significant weight because “relevant
VA’s regulations were inconsistent with the Social Security regulations,” and “ALJ went on
to explain that it was giving ‘greater weight’ to the ‘other evidence including the actual VA
medical records’”). And throughout her opinion, the ALJ discussed, cited, and relied on the
VA medical records. See Smith v. Colvin, 2015 WL 5541217, at *5 (S.D. Miss. Sept. 17,
2015) (holding that ALJ sufficiently reviewed VA disability decision and evidence relied on
by the VA in reaching that decision because the “ALJ expressly refer[red] to evidence in the
VA records throughout his decision”); see also Kinash v. Callahan, 129 F.3d 736, 739 (5th
Cir. 1997) (per curiam) (“The record reflects that the Commissioner considered both [the VA
- 18 -
and another agency’s] findings and the evidence underlying each. The Commissioner chose
to disagree with those findings. This alone is not reversible error.”). Thus it is clear from the
ALJ’s opinion that the ALJ sufficiently considered Harris-Nutall’s VA disability rating.
Moreover, Harris-Nutall offers only a bare assertion of error, arguing that the ALJ
failed to assign the VA disability rating “great weight.” See Chambliss, 269 F.3d at 523
(“Because the ALJ considered the VA disability determination and set forth valid reasons for
giving the determination diminished weight, we cannot say that the ALJ erred simply
because it did not give ‘great weight’ to the VA disability determination.”). Harris-Nutall
does not explain why the ALJ’s reasons for not giving the VA disability rating greater weight
were erroneous. See Vaught, 271 Fed. Appx. at 455 ( “[Claimant] does not explain why the
ALJ’s reasons for not giving the VA disability determination greater weight were erroneous,
and therefore leaves us with no basis upon which to find error.”); see also Munson v. Comm’r
of the Soc. Sec. Admin., 2014 WL 1165837, at *11 (M.D. La. Mar. 21, 2014) (explaining that
claimant asserted only that ALJ did not give adequate consideration to VA disability
determination but provided no other “argument as to why the consideration was inadequate
or why the ALJ’s reasons were invalid,” and holding that “[b]ecause the ALJ considered both
the VA’s rating and medical evidence and [claimant] does not offer any argument or specific
allegation to support this claim, the Court cannot find error” (citing cases)). Accordingly,
the court holds that the ALJ did not err in considering Harris-Nutall’s VA disability rating.
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B
Harris-Nutall contends that the ALJ failed to properly evaluate the opinions of treating
physicians, Drs. Shivakumar and Pinnamaneni, when determining her RFC. Her argument
appears to be two-fold. First, Harris-Nutall asserts that the ALJ did not give sufficient
weight to their opinions, and, second, she posits that the ALJ erred by not conducting a
detailed analysis of the 20 C.F.R. § 404.1527(c) factors before assigning no weight to their
opinions.2
1
Generally, controlling weight is assigned to the opinion of a treating physician if it is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the record. See Newton v. Apfel, 209 F.3d
448, 455 (5th Cir. 2000); see also 20 C.F.R. § 404.1527(c)(2) (“If we find that a treating
source’s opinion on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in your case record, we will give it
controlling weight.”). “The ALJ may give little or no weight to a treating source’s opinion,
however, if good cause is shown.” Ranes v. Astrue, 2009 WL 2486037, at *9 (N.D. Tex.
Aug. 14, 2009) (Fitzwater, C.J.) (citing Newton, 209 F.3d at 455-56). “Good cause may
permit an ALJ to discount the weight of a treating physician relative to other experts where
2
Harris-Nutall cites 20 C.F.R. § 404.1527(d), but it is clear that she intends to refer
to 20 C.F.R. § 404.1527(c).
- 20 -
the treating physician’s evidence is conclusory, is unsupported by medically acceptable
clinical, laboratory, or diagnostic techniques, or is otherwise unsupported by the evidence.”
Newton, 209 F.3d at 456 (citations omitted).
As a procedural matter, “absent reliable medical evidence from a treating or
examining physician controverting the claimant’s treating specialist, an ALJ may reject the
opinion of the treating physician only if the ALJ performs a detailed analysis of the treating
physician’s views under the criteria set forth in 20 C.F.R. § 404.1527[(c)].” Id. at 453.
Under 20 C.F.R. §§ 404.1527 and 416.927, the ALJ must evaluate the following factors
before giving less than controlling weight to a treating source’s opinions: (1) whether there
was an examining relationship; (2) the treatment relationship, including the length, nature,
and extent of the treatment relationship, as well as the frequency of the examination(s); (3)
the support of the source’s opinion afforded by the medical evidence of record; (4) the
consistency of the opinion with the record as a whole; (5) the specialization of the source;
and (6) other factors that “tend to support or contradict the opinion.”
20 C.F.R.
§ 404.1527(c); see also Fitzpatrick v. Colvin, 2016 WL 1258477, at *5 (N.D. Tex. Mar. 31,
2016) (Fitzwater, J.) (discussing six-factor test).
2
Harris-Nutall contends that the ALJ did not give sufficient weight to the opinions of
Drs. Shivakumar and Pinnamaneni regarding her physical and mental limitations,
respectively, and that their opinions support greater limitations that the RFC reflects. She
points out that Dr. Shivakumar found that she had significant mental limitations that would
- 21 -
result in her being absent from a job more than twice a month, precluding competitive work,
and that Dr. Pinnamaneni found that she can lift less than 10 pounds occasionally, perform
no overhead reaching, perform grasping, turning and twisting of object for only 10% of the
workday, sit less than two hours in an eight-hour workday, and stand less than two hours in
an eight-hour workday with unscheduled breaks every 15 minutes. The Commissioner
responds that other evidence of record—specifically, Harris-Nutall’s activities of daily living
and medical records—contradict Drs. Shivakumar and Pinnamaneni’s opinions.
The court holds that the ALJ had good cause to discount the opinions of Drs.
Shivakumar and Pinnamaneni, and that she gave sufficient reasons to support her decision.
The ALJ found that Harris-Nutall has the RFC to
lift/carry 10 pounds frequently and 20 pounds occasionally,
stand/walk 6 hours in an 8-hour workday, and sit 6 hours in an
8-hour workday. The claimant’s ability to push/pull would be
limited to the weights given. The claimant is unable to climb
ladders, ropes, and scaffolds and more than occasionally climb
ramps and stairs or crawl. The claimant can frequently stoop,
crouch, and kneel and engage in occasional contact with
coworkers, supervisors, and the public. The claimant can do
detailed, but not complex tasks.
R. 17. In making this finding, the ALJ rejected the opinions of Drs. Shivakumar and
Pinnamaneni.
The ALJ first summarized the opinions of Dr. Pinnamaneni contained in the Physical
Impairment Questionnaire:
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In [Dr. Pinnamaneni’s] October 4, 2013 medical source
statement, he opined the claimant could sit/stand at most one
hour in an eight-hour workday. Dr. Pinnamaneni reported that
the claimant would require a break every fifteen minutes and
would need to rest thirty minutes before returning to work. He
also opined the claimant could lift less than 10 pounds
occasionally, grasp/turn objects with the bilateral hands only
ten-percent of the workday, and perform fine manipulations with
the bilateral hands only thirty percent of the workday. Dr.
Pinnamaneni reported the claimant could reach bilaterally
including overhead zero-percent of the workday and would
require a cane for ambulation. He also reported that the
claimant would need to avoid all environmental factors, except
perfumes, and could never perform postural maneuvers other
than occasionally crouching. Dr. Pinnamaneni reported the
claimant could be expected to be absent from work more than
twice a month. Dr. Pinnamaneni, who noted he examines the
claimant “month to month, or as needed” based his opinion of
a total and permanent 100% disability on impairments that
included a sleep disorder, cervical spine degenerative disc
disease at C5-6, type II diabetes mellitus, allergies, hypertensive
aortic valve, anxiety, chronic pain, and disorder of the lumbar
spine.
R. 18. The ALJ stated that the record did not reflect that Dr. Pinnamaneni was a treating
source between 2011 and 2012,3 and she explained why the evidence in the record “[did] not
support” the degree of functional limitation found by Dr. Pinnamaneni in the Physical
Impairment Questionnaire. For example, the ALJ noted that Harris-Nutall reported that she
exercised twice daily and walked 12 miles in one day in April 2011; reported in June 2011
and November 2012 that her pain was a level zero on a ten-point scale, with ten being the
most severe; and reported that she had been exercising regularly in March 2012. The ALJ
3
Harris-Nutall does not challenge that Dr. Pinnamaneni was a treating source in 2011
and 2012.
- 23 -
explained that medical records did not indicate that Harris-Nutall had impaired ambulation
and coordination or any ambulatory deficits. The ALJ also noted that at the time HarrisNutall was issued a cane in July 2013, she “denied numbness or tingling in her lower
extremities, as well as radicular symptoms, explaining her pain affects only her lower back
and hips.” Id. at 19-20. The ALJ also stated that Harris-Nutall reported in April 2013 that
she walked about 30 minutes daily without many problems, and, according to treatment
records, she “continued to demonstrate a normal gait with no mention made of the need for
an assistive device even after being provided with her cane.” Id. at 20. The ALJ explained
that in 2013 Harris-Nutall denied problems with heat/cold intolerance or tremors; she lost
weight during the time period relevant to this decision; and, as recently as December 2014,
she demonstrated no dorsal or lumbar tenderness and no need for a back brace or cane.
Because there was contrary record evidence, and the ALJ had adequate grounds to find that
the evidence in the record “[did] not support Dr. Pinnamaneni’s opinions” in the Physical
Impairment Questionnaire, the ALJ was not obligated to give controlling weight to Dr.
Pinnamaneni’s opinions. See, e.g., Johnson v. Colvin, 2015 WL 3513209, at *9 (N.D. Tex.
June 4, 2015) (Fitzwater, J.) (concluding that ALJ had adequate grounds to reject treating
physician’s opinion that plaintiff’s physical impairments were so disabling as to prevent her
from standing, walking, or sitting for more than one hour in an eight-hour work day where
other medical evidence and plaintiff’s own testimony indicated plaintiff was capable of
standing, walking, or sitting for more than one hour in an eight-hour work day).
Additionally, the ALJ concluded that Dr. Shivakumar’s opinions in the Mental
- 24 -
Impairments Questionnaire—that Harris-Nutall had “mental limitations in function that
would preclude competitive work”—were “entitled to no weight” given Harris-Nutall’s daily
activities and medical history. R. 20. Regarding activities of daily living, the ALJ noted that
Harris-Nutall has lived on her own with her eight-year-old son since 2011 and occasionally
shops, drives, goes to movies, and attends church. As to medical history, the ALJ stated that
at a follow-up appointment one month after Harris-Nutall’s alleged onset date, she reported
“an improved mood,” and she “had logical, goal-directed thought process and a congruent
mood and affect,” id. at 18 (citing R. 1240-41); in October 2012 Dr. Bellah concluded that
Harris-Nutall had “logical, goal-directed thought processes, an unremarkable mood, normal
affect, intact memory, and an ability to successfully complete a three-step command,” id. at
21 (citing R. 737-43); at examinations in 2013, Harris-Nutall “presented euthymic and denied
ongoing problems with mood, energy, or focus,” id (citing R. 1494, 1681-82); and in 2014
Harris-Nutall described herself as doing “fine,” id. (citing R. 1721). Thus the ALJ found that
“these facts establish moderate limitations in function that would preclude [Harris-Nutall]
from engaging in more than occasional contact with coworkers, supervisors, and the public
and doing more than detailed tasks.” Id. Because there was contrary record evidence, and
the ALJ had adequate grounds to find that Dr. Shivakumar’s opinions in the Mental
Impairment Questionnaire were “entitled to no weight,” the ALJ was not obligated to give
controlling weight to Dr. Shivakumar’s opinions. See, e.g., Johnson, 2015 WL 3513209, at
*9.
- 25 -
3
Harris-Nutall maintains that the ALJ erred by assigning no weight to the opinions of
Drs. Shivakumar and Pinnamaneni without first analyzing the opinions under the
requirements of 20 C.F.R. § 404.1527(c). In response, the Commissioner appears to argue
that the ALJ was not required to specifically discuss the requirements of 20 C.F.R. §
404.1527(c) because she relied on first-hand medical evidence when assigning no weight to
the opinions of Drs. Shivakumar and Pinnamaneni.
Assuming arguendo that the ALJ was required to consider these factors when
analyzing the opinions of Drs. Shivakumar and Pinnamaneni, the court concludes that the
ALJ properly evaluated the opinions. “In considering whether the ALJ conducted a
sufficient six-factor analysis, the court initially observes that an ALJ is not required to recite
or discuss each factor in a sequential or formulaic fashion.” Ranes, 2009 WL 2486037, at
*11 (citing Wiltz v. Comm’r of Soc. Sec. Admin., 412 F.Supp.2d 601, 608 (E.D. Tex. 2005)
(“[T]he adjudicator [need only] ‘consider’ the factors. Neither the regulation nor interpretive
case law requires that an ALJ specifically name, enumerate, and discuss each factor in
outline or other rigid, mechanical form.”)). Evaluating the entirety of the ALJ’s analysis, and
focusing on its substance rather than its form, the court concludes that the ALJ engaged in
a sufficiently detailed analysis that encompassed the six factors, and that the ALJ had good
cause to discount the opinions of Drs. Shivakumar and Pinnamaneni.
It is clear that the ALJ was aware of her obligations when analyzing the opinions of
treating physicians because she stated that she “considered opinion evidence in accordance
- 26 -
with the requirements of 20 CFR 404.1527.” R. 17. As to factors one and two—under which
the ALJ evaluates the examining and treatment relationship between the claimant and the
physician—the ALJ acknowledged that Dr. Pinnamaneni was a treating source who
examined Harris-Nutall on a “month to month, or as needed” basis in 2013, but the record
“[did] not indicate that Dr. Pinnamaneni was a treating source between 2011 and 2012.” Id.
at 18-19. The ALJ also acknowledged that Dr. Shivakumar was a treating source who “had
an opportunity to examine [Harris-Nutall] on several more occasions than Dr. Pinnamaneni,”
and she cited specific instances when Dr. Shivakumar examined Harris-Nutall in 2013. Id.
at 20.
As to factors three, four, and six—under which the ALJ evaluates the supportability
and consistency of the physician’s opinion as well as any other factors that “tend to support
or contradict the opinion”—the ALJ explained that she was according Dr. Pinnamaneni’s
opinions in the Physical Impairment Questionnaire no weight because there was no evidence
showing that Harris-Nutall demonstrated the degree of functional limitation that Dr.
Pinnamaneni proposed, and objective medical evidence, as well as Harris-Nutall’s subjective
reports of pain, contradicted his opinions. Id. at 19-20. The ALJ also explained that she was
according Dr. Shivakumar’s opinions in the Mental Impairment Questionnaire no weight
because Harris-Nutall’s “daily activities” and “medical history” did not support her opinions.
Id. at 20. As to factor five, it is clear that the ALJ knew that Dr. Pinnamaneni was treating
Harris-Nutall for her physical impairments, including her sleep disorder, cervical spine
degenerative disc disease, type II diabetes mellitus, allergies, hypertensive aortic valve,
- 27 -
chronic pain, and disorder of the lumbar spine, and that Dr. Shivakumar was treating HarrisNutall for her mental impairments, including her PTSD and anxiety.
As the court has already explained, the ALJ had good cause to reject the opinions of
Drs. Shivakumar and Pinnamaneni. The ALJ properly considered the factors listed in 20
C.F.R. §§ 404.1527(c) and 416.927(c), and factors three, four, and six provided good cause
for the ALJ to discount Dr. Pinnamaneni’s opinions in the Physical Impairment
Questionnaire and Dr. Shivakumar’s opinions in the Mental Impairment Questionnaire.
*
*
*
For the reasons explained, the Commissioner’s decision is
AFFIRMED.
July 19, 2016.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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