SHON T. ERWIN, Magistrate Judge.
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 application for supplemental security income under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR. ____). This matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The parties have briefed their positions, and the matter is now at issue. It is recommended that the Commissioner's decision be
Plaintiff's application for supplemental security income was denied initially and on reconsideration. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 12-19). The Appeals Council denied Plaintiff's request for review and the decision of the ALJ became the final decision of the Commissioner. (TR. 1-3). Following an appeal to this Court, the case was reversed and remanded for further administrative findings. (TR. 652-654). Plaintiff attended a second administrative hearing and an ALJ issued a second unfavorable decision. (TR. 589-620; 567-581). The Appeals Council denied Plaintiff's request for review and the decision of the ALJ became the final decision of the Commissioner. (TR. 549-552).
In evaluating Plaintiff's claims of disability, 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. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since November 8, 2007, the application date. (TR. 569). At step two, the ALJ determined that Ms. Roth-Riemann had the following severe impairments: degenerative disc disease, chronic pain syndrome, headaches, posttraumatic stress disorder, a bipolar disorder, a major depressive disorder, a seizure disorder, and an anxiety disorder. (TR. 569). 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. 569).
At step four, the ALJ found that Plaintiff could not perform her past relevant work. (TR. 579). The ALJ further concluded that Ms. Roth-Riemann had the residual functional capacity (RFC) to:
(TR. 572).
Based on the finding that Ms. Roth-Riemann could not perform her past relevant work, the ALJ proceeded to step five. There, he presented several limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 617). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT). (TR. 617-618). The ALJ adopted the testimony of the VE and concluded that Ms. Roth-Riemann was not disabled based on her ability to perform the identified jobs. (TR. 580-581).
On appeal, Plaintiff alleges the ALJ: (1) improperly evaluated the medical evidence and (2) erred at steps four and five.
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, the court 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).
Plaintiff alleges the ALJ committed four errors in his consideration of the medical evidence. According to Ms. Roth-Riemann, the ALJ: (1) engaged in selective review of the medical record, (2) lacked substantial evidence for his treatment of an examining physician's opinion, (3) failed to weigh various medical opinions and resolve inconsistencies, and (4) failed to discuss various Global Assessment of Functioning (GAF) scores. The Court should conclude that Plaintiff's first three allegations have merit, but the ALJ did not err in failing to discuss Plaintiff's GAF scores.
An ALJ must evaluate every medical opinion in the record, although the weight given each opinion will vary according to the relationship between the disability claimant and the medical professional. Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004); 20 C.F.R. § 416.927(d). In determining what weight to accord any medical opinion, an ALJ must consider a series of specific factors. Hamlin, at 1215.
According to Plaintiff, the ALJ committed various errors in his evaluation of the medical record. First, Plaintiff alleges that the ALJ engaged in an impermissible selective review of opinion evidence from Northcare Mental Health Center and Hope Community Services. Plaintiff is correct.
From April 7, 2011 to July 6, 2012, Plaintiff received services from Northcare Mental Health Center (Northcare). (TR. 1039-1100). From these records, the ALJ cited "relevant negative findings" from 11 of 27 documented office visits which included:
(TR. 577-578). But as noted by Ms. Roth-Riemann, the ALJ ignored evidence from Northcare which documented:
(TR. 1055, 1069, 1070, 1082, 1090, 1092, 1094, 1096, 1100). The records from Northcare cited by Ms. Roth-Riemann span between April 21, 2011 to July 6, 2012. (TR. 1055, 1069, 1070, 1082, 1090, 1092, 1094, 1096, 1100). And the records cited by the ALJ cover approximately the same time period—April 7, 2011 through July 6, 2012. (TR. 576-577). But the ALJ's summary of the records from Northcare shows only "relevant negative findings"—evidence which the ALJ apparently relied on in formulating his ultimate finding of non-disability. But as alleged by Plaintiff, the ALJ's review of the records from Northcare conflict with other records from Northcare which were noted during the same time period. For example, while the ALJ cited findings which reported a "normal" mood, other findings showed Plaintiff's mood as depressed, irritable, and anxious. Also, the ALJ cited "cooperative interaction," but at least one time, a physician noted that Plaintiff had to be redirected often to remain on task. Finally, although the ALJ favorably cited "intact and oriented thought processes," other findings showed disorganized thoughts.
From June 20, 2012 through April 7, 2015, Ms. Roth-Riemann received mental health treatment and services at Hope Community Services (Hope Community). (TR. 1118-1154; 1228-1277, 1298-1311). From these records, the ALJ cited:
(TR. 578-579). But as noted by Ms. Roth-Riemann, the ALJ ignored findings from Hope Community which noted:
(ECF No. 16:7; TR. 1131, 1143, 1144, 1241, 1243-1250, 1256, 1259, 1261, 1262, 1263, 1264, 1265, 1269, 1271, 1273, 1275, 1308, 1310).
The records from Hope Community cited by Ms. Roth-Riemann span between June 21, 2012 to December 19, 2014. (TR. 1131, 1143, 1144, 1241, 1243-1250, 1256, 1259, 1261, 1262, 1263, 1264, 1265, 1269, 1271, 1273, 1275, 1308, 1310). And the records cited by the ALJ cover approximately the same time period—July 31, 2013 through January 16, 2015. (TR. 578-579). But the ALJ's summary of the records from Hope Community paints a different picture of Plaintiff's mental health than the records cited by Ms. Roth-Riemann. While the ALJ cited findings which reported a euthymic mood, other findings showed a dysphoric and anxious mood. While the ALJ reported "logical and coherent" thought processes, other records showed confused, disorganized, irrational, and unrealistic thought processes. The ALJ cited "intact" memory, but other findings showed that Ms. Roth-Riemann struggled with memory. Finally, the ALJ cited "normal" affect, but other findings reported Plaintiff's affect as tense, anxious, and overwhelmed.
As Plaintiff alleges, the ALJ selectively reviewed the records from Northcare and Hope Community presumably in support of his ultimate finding of non-disability. The undersigned can only presume this to be the case, however, because the ALJ never weighed the evidence or explained his treatment of the same, as discussed in a separate proposition below. In any event, the ALJ's selective review of the evidence from Northcare and Hope Community was improper and reversal is warranted. See Chapo v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012) ("We have repeatedly held that [a]n ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability.") (citing Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
On September 17, 2014, Dr. Edgar Kranau performed a psychological evaluation on Plaintiff. (TR. 1206-1213). The ALJ acknowledged Dr. Kranau's opinion, but accorded it "little weight," citing two reasons: (1) Dr. Kranau's findings were "inconsistent with the extensive negative findings in the documentary medical record" discussed by the ALJ and (2) Ms. Roth-Riemann had been referred to Dr. Kranau by her attorney "for use in the disability process" (TR. 579). Plaintiff argues that these rationales are insufficient, and the Court should agree.
First, although the ALJ gave a "facially valid" reason for rejecting Dr. Kranau's opinion—that it was inconsistent with the "extensive negative findings in the documentary record," the ALJ failed to explain or identify what the claimed inconsistencies were between Dr. Kranau's opinion and the other substantial evidence in the record. Under similar circumstances, the Tenth Circuit Court of Appeals has held that this rationale was not "sufficiently specific" to enable this court to meaningfully review an ALJ's findings. Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004).
Based on this deficiency, the only remaining rationale the ALJ offered to discount Dr. Kranau's opinion was that it had been solicited by Plaintiff's attorney. Although an ALJ may question a doctor's credibility when the opinion was solicited by counsel, "[t]he ALJ may not automatically reject the opinion for that reason alone." Hinton v. Massanari, 13 F. App'x 819, 824 (10th Cir. 2001); Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996) (the fact that the examination was solicited at the request of an attorney is relevant only when there is "no objective medical basis for the opinion."); Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011) ("[T]he fact that relevant evidence has been solicited by the claimant or her representative is not a sufficient justification to belittle or ignore that evidence."). But because the ALJ offers no other legitimate reason to discount Dr. Kranau's opinion, the fact that it was solicited by Plaintiff's attorney, alone, is insufficient.
Neither reason for discounting Dr. Kranau's opinion was legitimate. As a result, the Court should conclude that reversal is warranted because the ALJ's findings regarding Dr. Kranau's opinion lack substantial evidence.
Ms. Roth-Riemann alleges that inconsistencies existed between four medical professionals who evaluated Plaintiff's mental health: Dr. Deborah Hartley, Dr. Kranau, Dr. Kieth McKee, and Dr. Jerry White. According to Plaintiff, the ALJ failed to explain the inconsistencies or otherwise weigh or explain his treatment of the various opinions. Plaintiff is correct.
State Agency non-examining psychologist Dr. Hartley reviewed Ms. Roth-Riemann's medical record and opined that Plaintiff had "moderate" difficulties in her ability to understand, remember, and carry out detailed instructions and to interact appropriately with the general public. (TR. 238-239). Dr. Hartley also stated that Ms. Roth-Riemann could "socially interact with others including supervisors and coworkers" and was "able to adapt to a work situation." (TR. 240).
Examining psychologist Dr. Kranau evaluated Plaintiff and found that she was "markedly" limited in her ability to:
(TR. 1210-1211). Dr. Kranau also stated Plaintiff was "severely" limited in her ability to:
(TR. 1211).
Consultative psychologist Dr. McKee examined Plaintiff and concluded that she had:
(TR. 222).
Finally, examining psychologist Dr. White stated that Plaintiff:
(TR. 1115).
In the RFC, the ALJ concluded that Plaintiff was able to: "understand, remember, and carry out simple, routine, and repetitive tasks, . . . respond appropriately to supervisors, co-workers, and usual work situations, [and] have occasional contact with the general public." (TR. 572). The ALJ apparently adopted Dr. Hartley's opinion regarding Plaintiff's mental health limitations, as it appears to be consistent with the RFC and the ALJ stated that he was according Dr. Hartley's opinion "some weight." (TR. 572). But according to Plaintiff, Dr. Hartley's opinion was inconsistent with opinions offered by Dr. Kranau, Dr. McKee, and Dr. White, and the ALJ failed to explain the inconsistencies or otherwise weigh the opinions and explain his treatment of the same.
The initial problem exists in the ALJ's failure to weigh the opinions from Dr. White and Dr. McKee and explain in the decision the weight given to each. 20 C.F.R. § 416.927(e)(2)(ii). Although the ALJ summarized the opinions, he did not explain his treatment of the same, findings which might have indicated whether the ALJ believed that any inconsistencies had existed.
Although the ALJ did weigh Dr. Kranau's opinion, giving it "little weight," the stated rationales lacked substantial evidence, as discussed. While the ALJ stated that he was discounting Dr. Kranau's opinion based on "inconsistencies" in the record, he did not identify Dr. Hartley's opinion as the source of the inconsistency. See TR. 579. But on its face, Dr. Kranau's opinion does appear inconsistent with Dr. Hartley's opinion regarding Plaintiff's abilities to:
Compare TR. 238-240 with TR. 1211. Thus, it appears that adoption of Dr. Kranau's opinion could have resulted in more severe limitations. But the ALJ failed to resolve the apparent inconsistencies and the stated rationales for discounting Dr. Kranau's opinion were deficient.
In sum, the Court should conclude that the ALJ failed to weigh and explain the weight given to opinions from Dr. McKee and Dr. White and resolve any inconsistencies which may have existed in the opinions of Drs. Hartley, Kranau, McKee and White. On this basis, reversal is warranted. See Mays v. Colvin, 739 F.3d 569, 578 (10th Cir. 2014) ("It is the ALJ's duty to give consideration to all the medical opinions in the record. He must also discuss the weight he assigns to such opinions," including the opinions of state agency medical consultants. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted); Nagelschneider v. Astrue, 617 F.Supp.2d 1115, 1118 (D. Colo. 2009) ("in every case involving supplemental security income benefits the Commissioner will weigh all medical opinion evidence and set forth the reasons why a particular weight was assigned to treating sources and other medical sources. Failure to follow this rule . . . constitutes reversible error.").
Ms. Roth-Riemann alleges error in the evaluation of GAF scores which had been given by medical professionals at Hope Community Services, Northcare Mental Health Center, and Dr. McKee. The findings involve scores ranging from 38 to 51. (TR. 222, 263, 377, 387, 393, 406, 495, 540, 1045, 1055, 1061, 1069, 1082, 1086, 1090, 1092, 1094, 1096, 1229, and 1299). The Court should reject this argument.
"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) However, "[t]he most recent edition of the DSM omits the GAF scale `for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice.'" Richards, 640 F. App'x at 791 (quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013)).
In the decision, the ALJ gave a detailed summary of Plaintiff's mental health records, including the records from Northcare, Hope Community, and Dr. McKee, although the ALJ failed to specifically mention any of the 20 GAF scores reported. See TR. 574-579. Ms. Roth-Riemann argues that the ALJ improperly ignored the GAF scores because an ALJ has a duty to discuss "significantly probative evidence" he rejects. (ECF No. 16:10-11). This argument is not persuasive.
For two reasons, the Court should conclude that the GAF scores were not "significantly probative." First, a low GAF score, standing alone, is insufficient to prove disability because "the 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).
Second, the records contained no explanation regarding how the GAF scores had been calculated, nor did any medical professional link the scores to any particular symptoms or state how or whether they impacted Ms. Roth-Riemann's ability to work. TR. 222, 263, 377, 387, 393, 406, 495, 540, 1045, 1055, 1061, 1069, 1082, 1086, 1090, 1092, 1094, 1096, 1229, and 1299). Plaintiff herself does not argue that the GAF scores are indicative of any particular work-related limitation, only that they are "significantly probative." Under similar circumstances, the Tenth Circuit Court of Appeals has rejected this argument. See Richards v. Colvin, 640 F. App'x 786, 791 (10th Cir. 2016) (no error in ALJ's failure to discuss GAF scores and rejecting argument that GAF sores were "significantly probative" because "[none of] the clinicians explained how they calculated the scores or linked them to particular symptoms . . . [or] indicated how the GAF scores affected [Plaintiff's] functional abilities.").
Because the GAF scores were not significantly probative, the Court should reject this particular allegation of error.
Plaintiff alleges errors at steps four and five based on the ALJ's errors in evaluating the medical evidence. According to Plaintiff: "Due to [the ALJ's] errors regarding the medical evidence, the ALJ could not have properly formulated a hypothetical question to the Vocational Expert ("VE") or a decisional RFC supported by substantial evidence on the record as a whole." (ECF No. 16:12). Because the Court concludes that remand is required due to the ALJ's errors in evaluating the medical evidence, the Court need not address Plaintiff's allegations of error at steps four and five as they "may be affected by the ALJ's treatment of this case on remand." Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge finds that the decision of the Commissioner should be
With the reversal, the Court must decide whether to remand to the SSA for further hearing or direct an award of benefits. See Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993). Plaintiff has requested an immediate award of benefits, or in the alternative, she requests a remand with instructions. (ECF No. 16:14). In making this determination, one factor to consider is "whether or not `given the available evidence, remand for additional fact-finding would serve [any] useful purpose but would merely delay the receipt of benefits.'" Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006) (citation omitted). Here, additional fact-finding could serve a useful purpose because the errors involve the ALJ's improper evaluation of certain medical opinions, the re-evaluation of which will assist the trier of fact regarding the ultimate issue of disability. Accordingly, the Court should remand the action for further consideration of opinions offered by Northcare Mental Health Center, Hope Community Services, Dr. Kranau, Dr. Hartley, Dr. McKee, and Dr. White. Specifically, the ALJ should review each opinion utilizing the regulatory factors,
The parties are advised of their right to file specific written objections to this Report and Recommendation. See 28 U.S.C. §636 and Fed. R. Civ. P. 72. Any such objections should be filed with the Clerk of the District Court by
This Report and Recommendation terminates the referral by the District Judge in this matter.
