JERRY H. RITTER, Magistrate Judge.
This matter has been referred to the undersigned to issue proposed findings and recommend an ultimate disposition of this Social Security appeal. Doc. 24. Having carefully reviewed the parties' arguments and the relevant portions of the Administrative Record ("AR"), the Court recommends that Plaintiff's Motion to Remand or Reverse Agency Decision be granted, for the reasons set forth below.
Mr. Nelson claims that he was rendered unable to work after falling off of a ladder on March 20, 2013. AR at 51-52. However, according to consultative examiner Robert Krueger, Ph.D., (who was hired by the Administration), Mr. Nelson is afflicted by more than just physical ailments; he suffers from borderline intellectual functioning, an unspecified learning disorder, depressive disorder NOS, adjustment disorder with anxiety, and pain disorder associated with a general medical condition and psychological factors. AR at 716. In reaching these diagnoses, Dr. Krueger administered a WAIS-IV test, which "indicate[s] that he has significant cognitive impairment and is functioning at a borderline level with most skills." Id. However, the Administrative Law Judge ("ALJ") assigned to Mr. Nelson's case rejected many of the functional limitations imposed by Dr. Krueger, primarily because she disagreed with the Global Assessment of Functioning ("GAF") score he assessed, and ignored evidence that Mr. Nelson's processing speed is hampered by his disabilities. The Court finds that the ALJ's reasoning and rationale for rejecting Dr. Krueger's opinions are unsupported, and so recommends that this case be remanded for proper evaluation of Mr. Nelson's mental impairments.
Mr. Nelson fell while working on a ladder on March 20, 2013. AR at 51-52. Due to the injuries he sustained, Mr. Nelson filed an application with the Social Security Administration for disability insurance benefits under Title II of the Social Security Act on May 1, 2014. AR at 218-19. In addition to his back injuries, Mr. Nelson alleged disabling conditions including a seizure disorder and learning disability. AR at 236.
Mr. Nelson's application was denied initially and upon reconsideration. AR at 83-112. He requested review, and, after holding a de novo hearing, ALJ Michelle K. Lindsay issued an unfavorable decision on November 21, 2016. AR at 10-34. Mr. Nelson requested that the Appeals Council review the ALJ's decision; however, the Appeals Council denied his request on March 1, 2017. AR at 1-8. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). Mr. Nelson filed a timely Complaint on May 2, 2017. Doc. 1.
This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a). A claimant seeking disability benefits must establish that he is unable 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); 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4).
At step one of the sequential evaluation process, the ALJ found that Mr. Nelson had not engaged in substantial gainful activity during the relevant time period. AR at 15. At step two, she determined that Mr. Nelson "had the following severe impairments: seizure disorder, degenerative disc disease of the lumbar spine post lumbar surgery, mild degenerative joint disease of the hips, borderline intellectual functioning, learning disorder not otherwise specified (NOS), depressive disorder NOS, and adjustment disorder with anxiety." AR at 15. At step three, however, the ALJ found that Mr. Nelson "did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments[.]" AR at 16.
When a claimant does not meet a listed impairment, the ALJ must determine his residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e). "RFC is not the least an individual can do despite his or her limitations or restrictions, but the most." SSR 96-8p, 1996 WL 374184, at *1; see 20 C.F.R. § 404.1545(a)(1). In this case, the ALJ determined that Mr. Nelson retained the RFC
AR at 18. Employing this RFC at step four, the ALJ determined that Mr. Nelson could not return to his past relevant work as a tree trimmer and a painter. AR at 27. However, she found that "there were jobs that existed in significant numbers in the national economy that [Mr. Nelson] could have performed[.]" AR at 28. Specifically, the ALJ found that Mr. Nelson could have performed the requirements of a table worker, small item inspector, or small product assembler. Id. Accordingly, the ALJ determined that Mr. Nelson "was not under a disability, as defined in the Social Security Act, at any time from March 20, 2013, the alleged onset date, through September 30, 2016, the date last insured[,]" and she denied benefits. AR at 29.
This Court "review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied." Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).
Mr. Nelson argues that the ALJ's RFC finding was made in error because she improperly rejected the GAF of 45 in the Dr. Krueger evaluation; improperly rejected the entire Krueger report; improperly evaluated the treating doctor's opinion; "erred in the assessment of Mr. Nelson's mental condition for allegedly failing to obtain mental treatment[;]" understated Mr. Nelson's mental limits; and erred in her credibility assessment of Mr. Nelson and his "companion." He further argues that the ALJ misstated the burden of proof at step five and "failed to assure that the [Vocational Expert] testimony was compliant with the D.O.T." See Doc. 15 at 1-2. Because the Court agrees that the ALJ erred in weighing Dr. Krueger's opinion and GAF score, the undersigned will not address Plaintiff's other claims of error, "because 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).
Robert Krueger, Ph.D., FICPP, examined Mr. Nelson at the request of the Administration on March 16, 2015. AR at 713-718. Dr. Krueger conducted a clinical interview with biopsychosocial history and mental status examination, Wechsler Adult Intelligence Scale — IV (WAIS-IV), and reviewed Mr. Nelson's function report.
AR at 716. In his "summary and recommendations," Dr. Krueger stated that "there is evidence of [Mr. Nelson] having a severe and chronic pain disorder, which is likely to be further exacerbated by emotional factors, such as depression." AR at 716. Dr. Krueger further opined that Mr. Nelson's results on the WAIS-IV "indicate that he has significant cognitive impairment and is functioning at a borderline level with most skills." AR at 716-717. Dr. Krueger concluded as follows:
AR at 717.
The ALJ afforded "little weight" to the assessment of Dr. Krueger, thereby "effectively rejecting" it under Tenth Circuit law. See Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (equating "according little weight to" an opinion with "effectively rejecting" it); Crowder v. Colvin, 561 F. App'x 740, 742 (10th Cir. 2014) (citing Chapo for this proposition); Ringgold v. Colvin, 644 F. App'x 841, 844 (10th Cir. 2016) (same). The ALJ stated that she
AR at 27. Separately, the ALJ afforded "little weight" to Dr. Krueger's GAF score. The ALJ did so for the following reasons:
AR at 25-26.
"It is the ALJ's duty to give consideration to all the medical opinions in the record . . . . [Sh]e must also discuss the weight [s]he assigns to such opinions." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted).
The Court is not persuaded by the ALJ's reasons for rejecting Dr. Krueger's GAF score. Initially, the Court notes that a GAF score is a medical judgment which "may . . . be useful as one component of the evidence needed to support a psychiatric RFC[.]" Global Assessment of Function (GAF), 2 Soc. Sec. Disab. Claims Prac. & Proc. § 22:243 (2nd ed. 2017). As such, it must be evaluated as any other medical opinion in the record. Id.; see Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 (10th Cir. 2012).
The ALJ's first reason, which effectively asserted that Mr. Nelson's GAF score was inconsistent with Dr. Kruger's examination, is unsupported by substantial evidence. As observed in Dr. Krueger's mental status examination of Mr. Nelson,
AR at 715 (emphasis added). As emphasized above, Mr. Nelson reported suicidal ideation, which is consistent with the GAF score of 45. See DSM-IV at 32. Thus, the ALJ's first reason for rejecting it is unsupported by substantial evidence.
The ALJ's other reason for rejecting Dr. Krueger's GAF score fares no better. Citing specific pages of the DSM-IV, the ALJ rejected Dr. Krueger's GAF score because "[t]he GAF, however, is not intended for forensic purposes, such as the assessment of disability or competency or the individual's control over such behavior (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, pages 23 and 27)." AR at 26. This same language has been upheld uncritically by other district courts in this circuit. See, e.g., Mitchell v. Berryhill, CIV 16-1006-M, 2017 WL 2964727 at *6 (W.D. Okla. 2017). However, the Court has reviewed the pages of the DSM-IV
While the DSM-IV does caution against its use in the forensic setting, that limitation is not restricted to the GAF scale. As stated on page xxiii of the DSM-IV under the heading "Use of DSM-IV in Forensic Settings"
Id. at xxiii-xxiv. This is, apparently, where the ALJ procured the language she used to discount Dr. Kruger's GAF score. Compare AR at 26. However, as set forth, the language speaks to the caution non-clinical decision makers must employ when using the entire DSM-IV diagnostic criteria in the forensic setting, not just the GAF scale.
The ALJ also appears to have relied on the "Cautionary Statement" contained on page xxvii of the DSM-IV, which states, in relevant part that:
DSM-IV, at xxvii. Again, this statement refers to the DSM-IV as a whole and not to GAF scores, in particular. The upshot of these two statements — that non-clinical decision makers must use caution in employing the DSM-IV for forensic purposes — is echoed in the current version of the DSM (the DSM-5). See DSM-5 at 25.
To summarize, the ALJ improperly discounted Dr. Krueger's GAF score on the basis of a significant misreading of the DSM-IV. Contrary to the ALJ's position, the DSM-IV relies quite heavily on GAF scores. As stated:
DSM-IV at 30 (emphasis added). While the current DSM does not employ GAF scores, see DSM-5 at 16, they were once a useful tool when employed effectively. To say otherwise based on the purported fact that they are not intended for forensic use is a misstatement, unsupported by law
The Court also finds that the ALJ's other reasons for rejecting Dr. Krueger's opinions are unsupported or contrary to case law. The ALJ's first contention is that "the assessment is not supported by evidence of record." AR at 27. The ALJ reasoned that because Mr. Nelson has not sought professional counseling or therapy, "there is no evidence to suggest the claimant's psychiatric symptoms would not improve with appropriate treatment." AR at 27. However, as the Tenth Circuit recently reiterated, "[t]he absence of evidence is not evidence[.]" Kellams, 696 F. App'x at 915 (quoting Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993)). To wit, the purpose behind ordering a consultative examination is to adduce additional evidence not contained in a claimant's medical records and to establish the current severity of a claimant's impairments. See 20 C.F.R. § 404.1519a(b); Grotendorst v. Astrue, 370 F. App'x 879, 883 (10th Cir. 2010) (unpublished) ("[T]he regulations set out exactly how an ALJ is to determine severity, and consideration of the amount of treatment received by a claimant does not play a role in that determination. This is because the lack of treatment for an impairment does not necessarily mean that the impairment does not exist or impose functional limitations. Further, attempting to require treatment as a precondition for disability would clearly undermine the use of consultative examinations."). Dr. Krueger's report indicated that Mr. Nelson has severe psychiatric impairments which affect his ability to work. That Mr. Nelson's impairments might improve with treatment is utter speculation by the ALJ, which is not permitted. See Matlock v. Berryhill, 2018 WL 1305424, at *8 (D.N.M. Mar. 12, 2018) (citing Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004)).
The ALJ continued, "[f]urthermore, the record shows the claimant was able to work at the semi-skilled and skilled level despite his history of learning disorder and borderline intellectual functioning." AR at 27. While this may be true, it does not demonstrate that Mr. Nelson is able to work at these same levels after his injury. In fact, in addition to his borderline intellectual functioning and learning disorder NOS, the ALJ accepted as true that Mr. Nelson has the severe impairments of depressive disorder NOS, and adjustment disorder with anxiety. AR at 15. Yet, she does not provide an explanation as to why Dr. Krueger's diagnoses are acceptable while his opined functional limitations are not. "An 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." Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
The ALJ's next reason was that "[t]here are no references from Dr. Krueger that the claimant displayed any significant deficits in persistence and pace, which would provide support for his limitation in that area. In fact, he noted the claimant make (sic) good effort and was compliant with following all test instructions." AR at 27. The Court finds this reason to be unsupported by substantial evidence. That Mr. Nelson made "good effort" and was compliant with following test instructions led Dr. Krueger to conclude that his WAIS-IV results were valid. AR at 715. Yet, the ALJ appears to have ignored these valid, objective, test results; primarily as to Mr. Nelson's Processing Speed Index score of 74, which falls within the fourth percentile. AR at 716; compare Beard v. Colvin, 642 F. App'x 850, 852 (10th Cir. 2016) (unpublished) ("[T]he ALJ gave no reason for rejecting the objective assessment."). Dr. Krueger reiterated: "[h]e has serious problems with visual motor working speed, as is evidenced by his Processing Speed Index score of 74. . . . He can be expected to have marked impairment with maintaining pace and persistence." AR at 717. What "references" the ALJ required of Dr. Krueger's report in order to support his opinion as to Mr. Nelson's ability to maintain persistence and pace are unclear, as it appears as though this is the only evidence concerning Mr. Nelson's processing speed in the record.
The ALJ's last reason for rejecting Dr. Krueger's opinion — that it was based on one evaluation — is invalid as a matter of law where the ALJ's other reasons are unsupported. See Kellams, 696 F. App'x at 917 (citing Chapo, 682 F.3d at 1291; 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1)). While it is true that an ALJ must consider the treatment relationship of a medical source under the regulations, "[t]his rationale may justify refusing to give Dr. [Krueger] the status of a treating physician and according [his] opinion controlling weight, but as an examining source [his] opinion still was entitled to particular consideration. Indeed, `an examining medical-source pinion is, as such, . . . presumptively entitled to more weight than a doctor's opinion derived from a review of the medical record.'" Id. In other words, "[a]lthough the lack of a treating relationship is relevant to the weight to be afforded to an opinion, it is not grounds for simply rejecting an opinion." Crowder, 561 F. App'x at 743 (citing Chapo, 682 F.3s at 1291).
"Examining medical-source opinions" are "given particular consideration." Ringgold, 644 F. App'x at 843 (quoting Chapo, 682 F.3s at 1291). Such an opinion "may be dismissed or discounted, of course, but that must be based on an evaluation of all of the factors set out in the. . . regulations and the ALJ must provide specific, legitimate reasons for rejecting it." Id. The Court, having carefully reviewed the ALJ's treatment of Dr. Krueger's opinion, finds that the ALJ failed to conform to this standard.
Wherefore, the undersigned recommends that Plaintiff's Motion to Remand or Reverse Agency Decision (Doc. 15), be GRANTED, and that this case be remanded for further administrative proceedings consistent with this opinion.
Id. at n.1.
