SHON T. ERWIN, District 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 applications for benefits under the Social Security Act. The Commissioner has answered and filed the administrative record (hereinafter TR. ____). Both parties to the proceedings have consented to the exercise of jurisdiction by a United States Magistrate Judge to order the entry of judgment. Upon review of the pleadings, the record, and the parties' briefs, it is the opinion of this court that the Commissioner's decision must be
Plaintiff's applications for benefits were denied initially and on reconsideration. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 18-27). The Appeals Council denied Plaintiff's request for review, thus the ALJ's decision became the final decision of the Commissioner. This judicial appeal followed.
The Commissioner followed the sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10
At step four, the ALJ found Plaintiff could not perform any of his past relevant work. (TR. 25). The ALJ further found Plaintiff has the residual functional capacity (RFC) to lift and/or carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk for 6 hours in an 8 hour workday; and sit for about 6 hours in an 8 hour workday. (TR. 22). Additionally, Plaintiff is limited to simple, repetitive tasks, can relate to coworkers and supervisors only superficially and cannot work with the public. (TR. 22). At step five, the ALJ found there are jobs that exist in significant numbers in the national economy Plaintiff can perform. (TR. 26). Accordingly, Plaintiff was found to be not disabled from the alleged onset date through the date of the ALJ's decision. (TR. 27).
Plaintiff raises two primary issues on appeal. First, Plaintiff contends the ALJ erred in step two of the sequential evaluation process by failing to properly consider all of his impairments. (ECF No. 13:13-15). Second, Plaintiff argues the ALJ erred in determining his Residual Functional Capacity. (ECF No. 13:15-18).
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 (10
In connection with his first claim on appeal, Plaintiff argues the administrative law judge erroneously failed at step two to include his tremors as severe impairments and his headaches as a severe or nonsevere impairment. (ECF No. 13:14-15). Explaining that his burden to demonstrate an impairment is severe is de minimus, he points to various entries in his medical records and/or testimony which allegedly support the existence of his tremors and headaches.
However, the ALJ found Plaintiff has at least one severe impairment, and that "was all the ALJ was required to do in that regard." Oldham v. Astrue, 509 F.3d 1254, 1256-1257 (10
Plaintiff argues that the ALJ erred by giving Matt Nelson, a counselor's, Mental Residual Functional Capacity Assessment ("MRFCA") no weight. (ECF No. 13:16). In the Assessment, Mr. Nelson indicated Plaintiff was not significantly limited in six functional categories, moderately limited in three, markedly limited in ten and did not show any limitation in one. (TR. 428-30). In his decision, the ALJ explained that he did not give Mr. Nelson's opinion any weight because Mr. Nelson is not an acceptable medical source and the record does not support a counselor/patient relationship between Mr. Nelson and Plaintiff. Plaintiff contends that if the ALJ was unsure about their medical relationship, he had a duty to contact Mr. Nelson to establish the same. (ECF No. 13:16-17) (citing 20 C.F.R. § 416.912(e)).
The ALJ is correct that Mr. Nelson, as a counselor, does not qualify as a "medical source." See 20 C.F.R. § 404.1513(a); see also SSR 06-3p, 2006 WL 2329939, at *1. However, the Court cannot ignore that the Social Security Administration has acknowledged that an increasing number of claimants are receiving treatment from medical sources that are not considered to be "acceptable medical sources" under its rules. The agency has noted:
SSR 06-03p, 2006 WL 2329939, at *3.
In spite of the fact that Mr. Nelson is not an "acceptable medical source," the ALJ considered Mr. Nelson's opinion and explained that although Mr. Nelson indicated in his Assessment that Plaintiff was "markedly limited" in some areas, there were no medical records from Mr. Nelson to support this conclusion. (TR. 25). A review of the record supports the ALJ's evaluation. Mr. Nelson indicated in his Assessment that Plaintiff was "markedly limited" in ten of twenty categories. (TR. 428-29). As he pointed out, there is very little in the record to establish a medical relationship between Plaintiff and Mr. Nelson.
Plaintiff states that in November 2011, a Treatment Plan was prepared for Plaintiff, recommending five hours of counseling per month, that was signed by both Mr. Nelson and him. (TR. 622). However, the Treatment Plan, while designating Mr. Nelson as the responsible physician, was signed by a treatment team consisting of ten different people. (TR. 622). Additionally, although the Treatment Plan includes a notation that Plaintiff prefers to work with Matt, a/k/a Mr. Nelson, there is nothing else in the record to indicate a medical relationship between the two. (TR. 623).
Plaintiff also contends the record supports Mr. Nelson's MRFCA and therefore, the ALJ should have given it more weight. Specifically, Plaintiff points to his treatment records from Associated Therapeutic Services, Inc. shows a Global Assessment Functioning ("GAF") score of 50. (ECF No. 13:17; TR. 595, 597). GAF is a scale utilized by clinicians to reflect overall level of functioning. See American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 4th ed., Text Revision, 2000) (DSM-IV-TR). The Tenth Circuit has noted that a "GAF score of 41-50 indicates `[s]erious symptoms . . . OR any serious impairment in social, occupational, or school functioning.'" Cainglit v. Barnhart, 85 F. App'x 71, 75 (10
GAF scores "must be considered with the rest of the record," and such scores alone do not establish inability to work. Butler v. Astrue, 412 F. App'x 144, 147 (10
Plaintiff does not direct the Court to any statement by any clinician that the GAF assessment was related to Plaintiff's ability to work as compared to some other factor or factors in his life. Indeed, the last GAF score Mr. Nelson assigned to Plaintiff was 51. (TR. 615, 626). Thus, standing alone, Plaintiff's one time, pre-therapy GAF rating of 50 does not mandate a conclusion that the ALJ erred by failing to give weight to Plaintiff's score.
Plaintiff argues that the ALJ erred by failing to include in the RFC formulation any "handling, fingering, grasping, etc." restrictions related to alleged tremors in his left dominant hand. (EFC No. 13:17). The problem with this argument, however, is that the record does not support a functional limitation in Plaintiff's left hand. The ALJ considered Plaintiff's tremors but found that they were not severe. (TR. 20). In his discussion of Plaintiff's tremors and related medical records, the ALJ noted that Plaintiff had previously indicated he can stop the tremors on demand. (TR. 25). Indeed, Plaintiff reported this ability in 2010 and in 2011. (TR. 240, 355). Further, it does not appear in the record that any physician or consultant has indicated these tremors affect Plaintiff's ability to use his left hand. Finally, Plaintiff admitted that the tremors pre-date his alleged disability. (TR. 315).
The ALJ is not required to account for a limitation in his RFC formulation that is belied by the record. Adams v. Colvin, 553 F. App'x 811, 814 (10
Plaintiff's final argument is based upon the MRFCA dated February 2011. (ECF No. 13:17-18). A state agency psychologist, Dr. B. Lee Hudson, completed Section I of a Mental Residual Functional Capacity Assessment ("MRCA") form and checked a box indicating that Plaintiff has moderate limitations in his ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, as well as the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (TR. 317-18). In his narrative in Section III, Dr. Hudson explained in relevant part that:
(TR. 319).
The ALJ incorporated Dr. Hudson's Section III assessment into Plaintiff's RFC, finding that Plaintiff is "able to perform simple, repetitive tasks," "can relate to coworkers and supervisors only superficially," and "cannot work with the public." (TR. 22). Plaintiff alleges error, however, because the ALJ did not specifically discuss the psychologist's check-box finding in Section I that Plaintiff has moderate limitations in his ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, as well as ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. The Court disagrees because the Tenth Circuit has previously held that an ALJ's failure to discuss a Section I finding is not reversible error. See Sullivan v. Colvin, No. 12-5147, 2013 WL 950970, at *3 (10
In Sullivan, the state agency doctor had also checked a box indicating that the plaintiff was moderately limited in the ability to maintain a schedule, regular attendance and complete a normal workday. Id. On appeal, the plaintiff alleged that the ALJ committed legal error in failing to specifically discuss that limitation. Id. The Tenth Circuit disagreed, concluding that:
Id. (emphasis provided, internal brackets and citations omitted).
Although unpublished, Sullivan is factually almost identical to the present case and its holding is in accordance with other courts who have examined the issue. See, e.g., Smith v. Comm'r. of Soc. Sec., 631 F.3d 632, 636 (3rd Cir. 2010) (holding that the claimant "cannot rely on the worksheet component of the [MRFCA]" and collecting cases in support); Israel v. Astrue, 494 F. App'x 794, 797 & n.1 (9th Cir. 2012) (noting that "[the claimant] cites [no authority] that requires the ALJ to separately weigh and consider each checked box in Section I of the MRFCA" and citing the SSA's Program Operations Manual System); Anderton v. Colvin, No. 2:11-CV-00894-DN-DBP, 2013 WL 1284350, at *8 (D. Utah Mar. 4, 2013) (rejecting the plaintiffs allegation that the ALJ was required to consider and discuss findings in Section I of the MRFCA form because Section III's narrative is the actual assessment); Sitzman v. Astrue, No. 7:11CV5006, 2012 WL 1437281, at *8 (D. Neb. Apr. 25, 2012) ("`Because the actual assessment is contained in Section III, courts have consistently held that it is not error for an ALJ to omit restrictions identified in Section I in his RFC analysis.'" (citing Kane v. Astrue, No. 1:10CV1874, 2011 WL 3353866, at *3 (N.D. Ohio Aug. 3, 2011) (collecting cases in support)). Accordingly, the Court finds no reversible error in the ALJ's failure to address Dr. Hudson's check-box finding in Section I of the MRFCA form.
The decision of the Commissioner is
