Wilson v. Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

KYRA H. W., )

)

Plaintiff, )

)

v. ) Case No. 20-CV-00609-CDL

)

KILOLO KIJAKAZI1, )

Acting Commissioner of the )

Social Security Administration, )

)

Defendant. )

OPINION AND ORDER

Plaintiff seeks judicial review of a decision of the Commissioner of the Social

Security Administration (Commissioner) denying Social Security disability benefits. The

parties have consented to proceed before a United States Magistrate Judge in accordance

with 28 U.S.C. § 636(c)(1), (2). For the reasons set forth below, the undersigned affirms

the Commissioner’s decision denying benefits.

I. Standard of Review

The Social Security Act (the Act) provides disability insurance benefits to qualifying

individuals who have a physical or mental disability. See 42 U.S.C. § 423. The Act defines

“disability” as an “inability to engage in any substantial gainful activity by reason of any

1 Effective July 9, 2021, pursuant to Federal Rule of Civil Procedure 25(d)(1), Kilolo

Kijakazi, Acting Commissioner of Social Security, is substituted as the defendant in this

action. No further action need be taken to continue this suit by reason of the last sentence

of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

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.” See 42 U.S.C. § 423(d)(1)(A).

Judicial review of a Commissioner’s disability determination “‘is limited to

determining whether the Commissioner applied the correct legal standards and whether the

agency’s factual findings are supported by substantial evidence.’” Noreja v. Soc. Sec.

Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (citing Knight ex rel. P.K. v. Colvin, 756

F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and

is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005)); see also Biestek v. Berryhill, __ U.S. __, 139 S. Ct. 1148, 1154 (2019). “Evidence

is not substantial if it is overwhelmed by other evidence in the record or constitutes mere

conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).

So long as supported by substantial evidence, the agency’s factual findings are

“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). Thus, the court

may not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952

F.3d at 1178.

II. Procedural History

Plaintiff filed an application for supplemental security income (SSI) disability

benefits on October 22, 2018. (R. 89). Plaintiff alleges she became disabled due to post-

traumatic stress disorder (PTSD), high blood pressure, mild left anterior descending (LAD)

heart disease, depression, anxiety, spinal stenosis, scoliosis, two bulging and herniated

discs in her lower back, a pinched nerve in her back, anemia, difficulty standing or walking

for long periods of time, difficulty lifting, and chronic back pain. (R. 89-90). Plaintiff was

nineteen years old on the alleged onset date of January 1, 2018. However, because SSI

benefits are not payable prior to the month following the month in which the application

was filed, the Administrative Law Judge (ALJ) reviewed Plaintiff’s claim for disability

since October 22, 2018, the date of her application. (R. 11).

The Social Security Administration denied Plaintiff’s application on initial review

and on reconsideration. (See R. 10). Plaintiff subsequently requested a hearing before an

ALJ. The ALJ held a hearing on April 20, 2020.2 Id. Testimony was given by Plaintiff

and Vocational Expert (VE) Amanda Armstrong. Id. On May 5, 2020, the ALJ issued a

decision denying disability benefits. (R. 7-28). On September 25, 2020, the Appeals

Council denied Plaintiff’s request for review, which rendered the ALJ’s decision the

agency’s final decision. (R. 1). Accordingly, the Court has jurisdiction to review the ALJ’s

May 5, 2020 decision under 42 U.S.C. § 405(g).

III. The ALJ’s Decision

The Commissioner uses a five-step, sequential process to determine whether a

claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step

one, the ALJ determines whether the claimant is engaged in substantial gainful activity. At

step two, the ALJ determines whether the claimant has an impairment or a combination of

2 Plaintiff consented on the record to a hearing by telephone due to the extraordinary

circumstances presented by the COVID-19 pandemic and all participants attended via

telephone.

impairments that is severe. At step three, the ALJ determines whether the claimant’s severe

impairment or combination of impairments is equivalent to one that is listed in the

applicable regulation, which the Commissioner “acknowledges are so severe as to preclude

substantial gainful activity.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)

(internal quotation and citation omitted); see 20 C.F.R. § 404.1520(d); 20 C.F.R. Part 404,

subpt. P, App’x 1 (Listings). At step four, the claimant must show that her impairment or

combination of impairments prevents her from performing her previous work.

The claimant bears the burden on steps one through four. Lax v. Astrue, 489 F.3d

1080, 1084. If the claimant satisfies this burden, thus establishing a prima facie case of

disability, the burden of proof shifts to the Commissioner to show at step five that the

claimant retains the capacity to perform other work available in the national economy, in

light of the claimant’s age, education, and work experience. Id.

A. Step One

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity since October 22, 2018. (R. 12).

B. Step Two

At step two, the ALJ determined that Plaintiff has the following severe impairments:

obesity, major depressive disorder, generalized anxiety disorder, and PTSD. Id. The ALJ

also found non-severe mental impairments of hypertension and LAD heart disease, spine

disorder with scoliosis, and remote burn injury requiring skin graft. Id.

C. Step Three

The ALJ stated the record does not establish the medical signs, symptoms,

laboratory findings or degree of functional limitation required to meet or equal the criteria

of any listed impairments. (R. 15). The ALJ found that Plaintiff’s obesity, alone or in

combination with another impairment(s), does not medically equal a listed impairment. Id.

Regarding Plaintiff’s mental impairments, the ALJ specifically addressed Listings

12.04, 12.06, and 12.15. Id. The ALJ also addressed the “paragraph B” criteria—four

areas of mental functioning used to determine whether a claimant’s mental impairments

functionally equal a Listing. (R. 15-17; see 20 C.F.R. § 404 Subpt. P App’x 1). To satisfy

the paragraph B criteria, a claimant’s mental impairments must result in at least one extreme

or two marked limitations in four areas of functioning. 20 C.F.R. § 404 Subpt. P App’x 1.

A marked limitation means that the claimant’s functioning in the area independently,

appropriately, effectively, and on a sustained basis is seriously limited. Id. An extreme

limitation means the inability to function independently, appropriately, or effectively, and

on a sustained basis. Id. Here, the ALJ found that Plaintiff has a mild limitation in

understanding, remembering, or applying information; a mild limitation in interacting with

others; a moderate limitation in concentrating, persisting, or maintaining pace; and a mild

limitation in adapting or managing oneself. (R. 15-17). Because Plaintiff does not have at

least one extreme or two or more marked limitations, the paragraph B criteria are not

satisfied. (R. 17). Finally, the ALJ also addressed the “paragraph C” criteria and determined

that they are not satisfied. Id. In accordance with these findings, the ALJ proceeded to step

four.

D. Step Four

The ALJ determined that Plaintiff has the RFC

to perform light work as defined in 20 CFR 416.967(b) with

the following limitations. The claimant is able to lift or carry,

push or pull 20 pounds occasionally and 10 pounds frequently.

[Plaintiff] is able to sit, stand or walk six hours out of an eight-

hour day, with normal breaks. Based on PTSD, the claimant

should avoid fumes and extreme heat. The claimant should

avoid hazards such as unprotected heights and moving

machinery. The claimant is able to perform simple, routine

tasks with reasoning level 1-2, and [Plaintiff] should have only

occasional public contact.

(R. 18). In determining the RFC, the ALJ discussed Plaintiff’s hearing testimony and

medical records and opinions in the record, as summarized in part below.

i. Hearing Testimony

Plaintiff is five feet one and a half inches tall and weighs 270 pounds. (R. 19).

Plaintiff is not married and has no children. Id. Plaintiff lives with her grandmother, who

takes care of her. (R. 18). Plaintiff has never had a driver’s license and her grandmother

drives her places. (R. 19). She does not have a problem with hygiene. Id. Plaintiff went

through the tenth grade in school, and she can read and write. Id. She attempted

unsuccessfully to obtain a GED certificate. Plaintiff stays home most of the day. (R. 18).

She watches movies, feeds her pets, and helps with the housework. Id. Plaintiff still talks

to people she went to school with on Facebook and said that she loves children and enjoys

being around them. Id.

Plaintiff alleges she has severe PTSD, sees and smells burning/smoke, and has high

anxiety. (R. 19). Plaintiff describes hallucinations when sleeping and states panic comes

on when going to bed every night. Id. She manages these feelings by having her

grandmother come into the room and check the room. Id. Plaintiff waits for her

grandmother to get up at 3 to 4 in the morning, and then she goes to sleep. Id.

Plaintiff sees her therapist every week, her case manager every week or two weeks,

and her doctor every month or two months. Id. In therapy, she has learned about advice of

life, finding ways to cope, and establishing life goals. (R. 18). Her case manager, Debra

Walker, comes to her house to see if she needs anything and they talk. (R. 19). Her case

manager helped her fill out applications for disability and food stamps. Id. Plaintiff sees a

psychiatric medicine provider who prescribes medications for her PTSD, depression, and

anxiety. Id. She has no side effects from her medications and states her doctor just changed

some of her medications. Id.

Plaintiff worked for about a year, one day a week, at a gift shop. (R. 18, 62). Plaintiff

would like to work, but she has not received any training, nor has she talked to her

counselor about vocational rehabilitation. (R. 17). Plaintiff has goals and would like to

have a social life outside of her home. Id. Plaintiff has applied for work. Id.

ii. Medical Records and Opinion Evidence3

Grand Lake Mental Health Center

Plaintiff has received consistent mental health treatment and medication

management from Grand Lake Mental Health Center (Grand Lake) from 2016 through the

3 Plaintiff’s challenges in this appeal relate only to the ALJ’s mental RFC

determination. (See Pl.’s Br., Doc. 12 at 6). Accordingly, this opinion focuses on the

relevant evidence relating to Plaintiff’s mental impairments.

date of the decision. The records consist mostly of counseling and medication management

notes, summarized as follows: On August 21, 2018, Plaintiff denied having close

friendships and was isolating, but she met people online. (R. 16). Plaintiff reported she

had conflict with coworkers at the gift shop where she worked. Id. Plaintiff reported

difficulty concentrating and following through with laundry or paperwork. Id. Plaintiff

reported her burn trauma still affected her. Id. Plaintiff had a Global Assessment of

Functioning (GAF) Scale score of 39. (R. 20).

A counseling note on October 8, 2018 noted Plaintiff had a good attention span,

linear thought process, and she made good eye contact. (R. 16). On December 28, 2018,

Plaintiff reported her medications were working “fairly well,” and although Seroquel made

her drowsy, it benefitted the auditory-visual effects of her PTSD. (R. 20). A counseling

note on January 16, 2019 noted Plaintiff had a normal mental status. Id. In February 2019,

Plaintiff’s GAF Scale score was 40. Id. (citing Exhibit 11F, page 3).

On April 24, 2019, medication management notes show Plaintiff reported depression

at a level of 9/10, anxiety at a level of 8/10, with mood swings, hallucinations, nightmares,

and poor sleep. Id. (citing Exhibit 11F, page 16). However, her mental status was normal,

she was alert and oriented, with no acute distress, and a routine follow-up was scheduled

in six weeks. (R. 17, 21).

On May 3, 2019, Plaintiff reported inadequate sleep impacted her daily functioning,

but she was taking her medications as prescribed. (R. 21). A short time later on May 20,

2019, a counseling progress note indicated Plaintiff had a euthymic mood, appropriate

affect, good eye contact, good grooming, appropriate dress, good attention span, and linear

thought process. Id. In August 2019, during a medication management appointment,

Plaintiff reported mild depression and denied anxiety. Id.

On February 21, 2020, a Client Assessment Record (CAR) noted Plaintiff’s

continued complaints of depression with severe impact on functioning, PTSD which

significantly affected sleep and caused hallucinations, and anxiety with panic symptoms

that made it difficult to socialize or leave her home. Id. However, she had recently

volunteered as a camp counselor. (R. 16). Plaintiff reported problems with memory. Id.

Plaintiff reported her depression caused her to want to sleep and had a severe impact on

her ability to accomplish basic tasks such as hygiene and caused lack of motivation. (R.

17). Plaintiff reported she still lived with her grandmother and that her boyfriend is her

close friend. (R. 16). Plaintiff’s GAF Scale score was 45. (R. 20). (citing Exhibit 12F,

page 2). The ALJ found that, although the GAF Scale score of 45 still indicated the

presence of serious symptoms, counseling and medication management notes reflected

improvement. Id.

A March 16, 2020 mental status examination revealed Plaintiff had an average fund

of knowledge, good judgment, normal thought process and content, normal speech, and

good short-term, immediate, and long-term memory. (R. 16). Plaintiff was alert and

oriented and had a good attention span and concentration. (R. 17).

Psychological Consultative Examination

On February 25, 2019, Melinda Shaver, Psy.D. performed a consultative

examination. Plaintiff reported PTSD due to history of childhood burns with weekly

counseling and medication at Grand Lake for 3 years. (R. 20). Plaintiff had coherent and

relevant speech, appropriate behavior, and made good eye contact. (R. 16). Plaintiff did

not have a thought disorder. Id. Plaintiff had good recent and remote memory, but below-

average intelligence, and poor fund of knowledge. Id. Plaintiff had good judgment, her

insight was fair, and she was receiving mental health treatment. Id.

Dr. Shaver observed Plaintiff to be sad, with dysthymic mood; however, she was

cooperative and friendly. Id. Plaintiff reported she is anxious daily, but she socializes with

her family, and she enjoys painting, reading, and drawing. Id. Plaintiff attends a burn

camp for 5 days, once a year. Id. Plaintiff was able to complete some tasks in a timely and

appropriate manner, she was oriented, and her sensorium was clear. (R. 17). Plaintiff

could not perform serial 7 or 3 calculations but she could spell “WORLD” forward and

backward. Id. Plaintiff related that she has trouble sleeping if she does not take medication,

and she is able to manage her money. Id.

Dr. Shaver diagnosed Plaintiff with “PTSD, major depressive disorder, recurrent,

moderate, and personal history of physical/sexual/psychological abuse in childhood, victim

of crime, with other problem related to employment, borderline intellectual functioning,

and obesity.” (R. 20). Dr. Shaver noted “that although [Plaintiff] is receiving mental health

treatment and taking psychotropic medication, it did not appear her symptoms had

improved very much, such that she has a guarded prognosis.” Id.

Physical Consultative Examination

On March 30, 2019, David Wiegman, M.D. performed a physical consultative

examination. Dr. Wiegman’s findings were relatively normal, including good grooming,

and normal memory and concentration. (R. 14, 17). 4 Plaintiff was alert, with fluent speech

and clear thought processes. Id.

Reviewing Source Medical Opinions

On April 19, 2019, reviewing state agency psychologist William Farrell, Ph.D.

opined that Plaintiff can perform simple and some complex tasks, relate to others on a

superficial work basis, and adapt to a work situation. (R. 22; see R. 100). Reviewing state

agency psychologist Carolyn Goodrich, Ph.D. concurred at reconsideration, in an opinion

dated July 9, 2019. (R. 22; see R. 118).

The ALJ found the opinions of Dr. Farrell and Dr. Goodrich persuasive, in part. (R.

22). The ALJ noted that additional evidence received at the hearing level showed

improvement in the GAF assessment and normal status in March and April 2020.

However, the ALJ found the record as a whole supported limitations greater than those

found by the State agency psychologists. (R. 23). Specifically, based on the nature of

Plaintiff’s PTSD, the ALJ found the evidence is more consistent with an RFC for simple,

routine tasks, occasional public contact, and environmental restrictions. Id.

iii. Past Relevant Work

The ALJ found Plaintiff has no past relevant work. Therefore, she proceeded to step

five. (R. 23).

4 This section only addresses the portion of Dr. Wiegman’s report cited by the ALJ

concerning Plaintiff’s mental impairments.

E. Step Five

Based on the VE’s testimony as to a hypothetical person with Plaintiff’s RFC, the

ALJ found that Plaintiff can perform the requirements of the following representative

occupations:

Marker, light exertion, unskilled, specific vocational preparation

(SVP) level 2, Dictionary of Occupational Titles (DOT) # 209.587-

034, with 300,000 jobs existing in the national economy;

Router, light exertion, unskilled, SVP 2, DOT # 222.587-038, with

50,000 jobs existing in the national economy;

and

Collator operator, light exertion, unskilled, SVP 2, DOT # 208.685-

010, with 13,000 jobs existing in the national economy.

(R. 24). Accordingly, the ALJ concluded at step five that Plaintiff is not disabled, as

defined in the Social Security Act. Id.

IV. Plaintiff’s Arguments

Plaintiff challenges the ALJ’s mental RFC determination, arguing: (1) the ALJ

improperly discounted medical evidence; and (2) the ALJ failed to perform a proper

determination of the consistency of Plaintiff’s subjective complaints with the evidence of

record. The Commissioner contends the ALJ’s evaluation of the medical evidence and her

consistency analysis of Plaintiff’s subjective complaints are supported by substantial

evidence in the record and free from error.

A. Medical Evidence

Plaintiff argues that the CAR scores assigned by her treating mental health source

Grand Lake show that her mental impairments cause diminished levels of functioning and

support a finding of disability. Plaintiff argues the ALJ rejected the limitations identified

in and supported by the CAR and she failed to explain why she rejected this objective

evidence. (See Pl. Br., Doc. 12 at 7). Plaintiff argues the ALJ’s failure to discuss this

objective evidence and explain why she rejected it is reversible error. Id.

The Commissioner argues that the ALJ was not required to articulate her

consideration of the persuasiveness of the CAR, as they are not a medical opinion under

the regulations.5 The CAR is a diagnostic assessment of a patient’s level of functioning

used to assess the level of care required for treatment. However, a medical opinion is a

“statement from a medical source about what [a claimant] can still do despite [their]

impairment(s) and whether [they] have one or more impairment-related limitations or

restrictions” in their abilities to perform the physical, mental, and other work demands. 20

C.F.R. § 404.1513(a)(2). While Grand Lake is an accepted medical source, Plaintiff’s CAR

score records do not specifically assess functional limitations related to employment. Thus,

the ALJ was not required to articulate her evaluation of the persuasiveness of the CAR

scores as a medical opinion.

Moreover, the ALJ’s decision reflects that she reasonably weighed this evidence. In

determining a Plaintiff’s RFC, “[t]he record must demonstrate that the ALJ considered all

5 For claims filed on or after March 27, 2017, such as Plaintiff’s claim here, the

Commissioner does not “defer or give any specific evidentiary weight, including

controlling weight, to any medical opinions.” 20 C.F.R. § 404.1520c(a). The ALJ’s

decision must articulate how he considered the medical opinions or prior administrative

medical findings from each medical source. Id. § 404.1520c(b)(1). The most important

factors for the ALJ to consider are supportability and consistency, and the ALJ’s decision

must explain how he considered those factors in determining persuasiveness of a medical

source’s medical opinions or prior administrative medical findings. Id. § 404.1520c(b)(2).

of the evidence, but an ALJ is not required to discuss every piece of evidence. Rather, in

addition to discussing the evidence supporting [the] decision, the ALJ also must discuss

the uncontroverted evidence he chooses not to rely upon, as well as significantly probative

evidence he rejects.” Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (quoting Clifton

v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)); see also Bigpond v. Astrue, 280 F.

App’x 716, 718, 2008 WL 2222016 (10th Cir. 2008). The focus of disability determination

is on the functional consequences of a condition, not the mere diagnosis. See Qualls v.

Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (noting that an ALJ’s failure to include an

alleged limitation in the RFC is not error if the limitation is not supported by the medical

record).

Here, the ALJ addressed the CAR in her opinion, but noted that “medication

management treatment at Grand Lake on March 16, 2020 showed a mental status

examination, which was normal in almost all areas.” (R. 21). (citing Exhibit 12F, pages

23-24). As such, the ALJ’s decision indicates that she weighed the CAR evidence and

concluded that it does not require additional limitations in Plaintiff’s RFC. The ALJ

supported this conclusion with reference to specific evidence in the record. Nothing further

is required. Further, even if the evidence could support a different finding, the Court cannot

displace the agency’s choice between two fairly conflicting views. See Oldham v. Astrue,

509 F.3d 1254, 1257-58 (10th Cir. 2007). Plaintiff’s argument simply invites the Court to

improperly re-weigh the evidence. See Noreja, 952 F.3d at 1177; see also Lax, 489 F.3d at

1084.

B. Plaintiff’s Subjective Statements

Plaintiff argues the ALJ failed to perform a proper determination of the consistency

of Plaintiff’s subjective complaints of functional limitations with the evidence of record.

Specifically, Plaintiff alleges her severe PTSD, depression, and anxiety cause functional

limitations that preclude employment and are supported by the evidence in the record.

A claimant’s subjective complaints of pain or other symptoms, alone, cannot

establish disability. See 20 C.F.R. § 404.1529(a). In assessing the intensity and persistence

of a claimant’s pain, the Commissioner will consider objective medical evidence and will

“carefully consider any other information [a claimant] may submit about [their]

symptoms.” 20 C.F.R. § 404.1529(c). In evaluating such statements, an ALJ must consider:

“(1) whether the claimant established a pain-producing impairment by objective medical

evidence; (2) if so, whether the impairment is reasonably expected to produce some pain

of the sort alleged (what we term a ‘loose nexus’); and (3) if so, whether considering all

the evidence, both objective and subjective, the claimant’s pain was in fact disabling.”

Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012) (citing Luna v. Bowen,

834 F.2d 161, 163-64 (10th Cir. 1987)).6 Consistency determinations “are peculiarly the

6 While the Commissioner now describes the analysis as involving a two-step

process, the current regulatory policy generally comports with the approach as outlined in

previous cases, including Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987) and Keyes-

Zachary v. Astrue, 695 F.3d 1156 (10th Cir. 2012). See Paulek v. Colvin, 662 F. App’x

588, 593-94 (10th Cir. 2016) (unpublished). (Under 10th Cir. R. 32.1(A), “[u]npublished

decisions are not precedential, but may be cited for their persuasive value.”).

The applicable regulations further explain that in evaluating pain, the Commissioner

considers factors including

(i) [the claimant’s] daily activities;

province of the finder of fact.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); see

also White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001) (ALJ’s evaluation of symptom

allegations “warrant particular deference”).7 However, the ALJ must explain “the link

between the evidence and” consistency determination. Kepler, 68 F.3d at 391; see also 20

C.F.R. § 404.1529 (ALJ must provide “specific reasons . . . supported by the evidence in

the case record”). Courts “will not upset such determinations when supported by substantial

(ii) The location, duration, frequency, and intensity of . . . pain or other

symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any

medication [the claimant] take[s] or ha[s] taken to alleviate . . . pain

or other symptoms;

(v) Treatment, other than medication, [the claimant] receive[s] or

ha[s] received for relief of . . . pain or other symptoms;

(vi) Any measures [the claimant] use[s] or ha[s] used to relieve . . .

pain or other symptoms (e.g., lying flat on your back, standing for 15

to 20 minutes every hour, sleeping on a board, etc.); and

(vii) Other factors concerning [the claimant’s] functional limitations

and restrictions due to pain or other symptoms.

20 C.F.R. § 404.1529(c); see also Keyes-Zachary, 695 F.3d at 1167; Branum, 385 F.3d at

1273-74 (quoting Hargis v. Sullivan, 945 F2d. 1482, 1489 (10th Cir. 1991)) (describing

several similar factors which should be analyzed).

7 The Commissioner no longer uses the term “credibility.” See Social Security Ruling

(SSR) 16-3p, 2017 WL 5180304 (explaining purpose to “eliminat[e] the use of the term

‘credibility’ from [the Commissioner’s] sub-regulatory policy, as our regulations do not

use this term,” and “clarify[ing] that subjective symptom evaluation is not an examination

of an individual’s character”). However, the agency continues to follow the same

“fundamental rule . . . that ‘if an individual’s statements about the intensity, persistence,

and limiting effects of symptoms are inconsistent with the objective medical evidence and

the other evidence, [an ALJ] will determine that the individual’s symptoms are less likely

to reduce his or her capacities to perform work-related activities.’” Zhu v. Comm’r, SSA,

No. 20-3180, 2021 WL 2794533, at *5 n.7 (10th Cir. July 6, 2021) (unpublished) (quoting

SSR 16-3p).

evidence.” Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (citing Diaz v. Sec’y of

Health & Hum. Servs., 898 F.2d 774, 777 (10th Cir. 1990)).

Plaintiff asserts that the CAR scores assigned to her by Grand Lake support her

testimony that the functional limitations from her mental impairments preclude

employment. (See R. 462-464, 610-612, 720-722). However, as discussed supra, the CAR

score records do not specifically assess functional limitations related to employment. Here,

the ALJ acknowledged that the February 2020 CAR noted that Plaintiff “continued to show

complaints of depression with severe impact on functioning, PTSD which significantly

affected sleep and caused hallucinations, and anxiety with panic symptoms that made it

difficult to socialize or leave her home.” (R. 21). The ALJ found the limitations assessed

by the CAR were inconsistent with other evidence. Specifically, the ALJ cited evidence

indicating that “medication management treatment at Grand Lake on March 16, 2020

showed a mental status examination, which was normal in almost all areas.” Id. (citing

Exhibit 12F, pages 23-24). Moreover, the focus of a disability determination is on the

functional consequences of a condition, not the mere diagnosis. See Coleman v. Chater, 58

F.3d 577, 579 (10th Cir. 1995); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The

mere diagnosis of arthritis, of course, says nothing about the severity of the condition.”).

In this context, Plaintiff has failed to show that a more-detailed discussion of the CAR

evidence was needed. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“[t]he burden of

showing that an error is harmful normally falls upon the party attacking the agency’s

determination.”).

The ALJ found that Plaintiff’s statements about the intensity, persistence, and

limiting effects of symptoms are not fully consistent with the objective medical evidence

and the other evidence of record. (R. 21). In support of this determination, the ALJ found

“[Plaintiff] receives regular treatment, she cooperates with her grandmother to maintain

her activities of daily living,” “[Plaintiff] has a close relationship with her grandmother. . .

[Plaintiff] works closely with her mental health treatment providers at Grand Lake,” and

“[Plaintiff] does not have medication side effects.” Id. The ALJ’s decision, as shown

below, cited various medical records to support her finding that Plaintiff’s symptoms

improved with mental health treatment and medication management.

The ALJ noted that Plaintiff’s medications were working “fairly well” as of

December 28, 2018 “[a]lthough Seroquel made [Plaintiff] drowsy, it benefitted the

auditory-visual effects of PTSD.” (R. 20) (citing Exhibit 11F, page 21). The ALJ cited

records of mental health examinations dated January 16, 2019, April 24, 2019, May 9,

2109, May 20, 2019, and March 16, 2020 with normal or near-normal findings, such as

normal mood, affect, appearance, dress, thought process and content, and speech; and was

alert and oriented with good memory, attention span, and concentration. (R. 16, 17, 20, 21)

(citations omitted). The ALJ noted that on August 14, 2017, Plaintiff had a diagnosis of

mild, recurrent major depression, and overanxious disorder. (R. 21). However,

“[Plaintiff’s] anxiety responded well to Hydroxyzine.” Id. (citing Exhibit 5F, pages 1-2).

Further, the PHQ depression screening showed that depression was not making it difficult

at all to do work, take care of things at home, or get along with other people. Id. (Id. at 3).

The ALJ noted that in August 2019, Plaintiff “reported mild depression and she denied

anxiety during medication management.” Id. (citing Exhibit 12F, page 36).

The ALJ noted that Plaintiff’s GAF scores of 39, 40, and 45 increased over time.

(R. 20). The ALJ stated that “[a]lthough the GAF Scale score of 45 still indicates the

presence of serious symptoms, the counseling and medication management notes at Grand

Lake reflect improvement.” Id. Plaintiff argues that although Plaintiff’s GAF scores may

have slightly improved, they never rose above 50, which still show serious symptoms that

could affect the ability to work.8 (See Pl. Br., Doc 12 at 14). Plaintiff states “[a] GAF

score of fifty or less…does suggest an inability to keep a job.” Lee v. Barnhart, 117 F.

App’x 674, 678 (10th Cir. 2004) (emphasis added) (unpublished opinion), citing Oslin v.

Barnhart, 69 F. App'x 942 (10th Cir. 2003) (See Pl. Br., Doc. 18 at 3).

While Plaintiff’s GAF scores indicate serious symptoms that could potentially affect

a Plaintiff’s ability to work, the GAF scores alone, without an explanation as to how the

scores were assessed, do not indicate Plaintiff’s inability to work. In an unpublished

opinion, the Tenth Circuit has noted that, “[w]hile a GAF score may be of considerable

help to the ALJ in formulating the RFC, it is not essential to the RFC’s accuracy and taken

8 According to the Diagnostic and Statistical Manual of Mental Disorders, (4th ed.

1994) at page 32, an Axis V of 41 to 50 means “[s]erious symptoms (e.g., suicidal ideation,

severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,

occupational, or school functioning (e.g., no friends, inability to keep a job).” An Axis V

of 31 to 40 means “[s]ome impairment in reality testing or communication (e.g. speech is

at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as

work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids

friends, neglects family, and is unable to work; child frequently beats up younger children,

is defiant at home, and is failing at school).”

alone does not establish an impairment serious enough to preclude an ability to work.”

Holcomb v. Astrue, 389 F. App’x 757, 759, at **2 (10th Cir. 2010) (quoting Howard v.

Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) (noting the ALJ’s failure to

reference the GAF score in the RFC, standing alone, does not make the RFC inaccurate)).

Here, Plaintiff’s GAF scores assessed by Grand Lake were not accompanied by

further explanation about how the scores were calculated or how they are linked to

Plaintiff’s symptoms, nor do they explain how the assessed functional limitations are

impairment-related restrictions to employment. Thus, the GAF scores alone do not indicate

Plaintiff’s inability to work. However, the GAF scores are objective evidence and should

be considered when performing a consistency analysis of Plaintiff’s subjective complaints.

Here, the ALJ found:

I have considered the GAF Scale scores in the record, which have shown the

presence of serious or more severe symptoms. GAF ratings are assessments

of functioning at a specific time; however, over the longitudinal record the

scores in this case show improvement in symptoms. I find this true given the

process of recovery. However, I find limited persuasiveness from the GAF

evidence. The GAF rating is one piece of evidence considered along with all

the other evidence of record, and it is not here determinative of the residual

functional capacity.

(R. 23). As such, the ALJ considered the GAF scores and reasonably determined they had

limited persuasiveness in Plaintiff’s RFC determination.

The ALJ also cited examples where Plaintiff’s hearing testimony was not consistent

with the severity of her alleged complaints. Plaintiff testified that she “does not have side

effects from her medications.” (R. 19). Plaintiff testified that she worked for one year, one

day a week, at a gift shop. (R. 18). Plaintiff testified she would like to work, but she has

not received any training, nor has she talked to her counselor about vocational

rehabilitation. (R. 17). Plaintiff has goals and would like to have a social life outside of

her home. Id. Plaintiff has applied for work. Id.

Plaintiff argues her subjective complaints are supported by the report of Dr. Shaver.

Dr. Shaver found that “although [Plaintiff] is receiving mental health treatment and taking

psychotropic medication, it did not appear her symptoms had improved very much” and

she “had a guarded prognosis.” (R. 20). Dr. Shaver also opined that the Plaintiff is not

capable of managing benefit payments in her own interest. (R. 583). The ALJ considered

the opinion of Dr. Shaver and found that it was not consistent with the other record

evidence cited in her decision that showed “[Plaintiff’s] symptoms improved with ongoing

counseling and medication management.” (R. 20).

The ALJ also found Plaintiff’s subjective statements were not consistent with her

activities of daily living. As noted above, Plaintiff testified that she stays home most of

the day and watches movies, feeds her pets, and helps with the housework. (R. 18).

Plaintiff testified she still talks to people she went to school with on Facebook. Id.

Plaintiff testified she does not have a problem with hygiene. (R. 19). Plaintiff testified

that she shares the responsibilities for the home with her grandmother. Id. Plaintiff

reported to Dr. Shaver that she does a little cooking, some cleaning, and grocery shopping.

(R. 17). Plaintiff reported to Dr. Shaver that she is able to manage money. Id. (citing

Exhibit 8F). The ALJ noted that Plaintiff’s is committed to volunteering at Oklahoma

Firefighter’s Burn Camp. (R. 21).

The ALJ did not discount all of Plaintiff's complaints. To the contrary, the ALJ

acknowledged Plaintiff's statements regarding her functional limitations and determined

they warranted further restrictions in the RFC determination. (See R. 18, 21-23). The ALJ

limited Plaintiff to simple, routine tasks with reasoning level 1-2 with only occasional

contact with the public, due to her functional limitations as a result of her anxiety,

depression, and PTSD. (See R. 22-23). The ALJ further limited Plaintiff from exposure

to fumes and extreme heat to avoid possible PTSD triggers. (See R. 22). The ALJ

supported her findings by citing specific evidence in the record she relied upon in finding

Plaintiff's mental impairments are not as limiting as alleged. Nothing more was required.

Furthermore, as the Commissioner correctly argues, no treating source offered a medical

opinion indicating that Plaintiff was more limited that the ALJ found in her decision.

V. Conclusion

The undersigned finds the ALJ’s decision is supported by substantial evidence and

reflects that the ALJ applied the proper legal standards. Therefore, the undersigned affirms

the decision of the Commissioner finding Plaintiff not disabled.

ORDERED this 23rd day of March, 2022.

Unietre 2 tiklee

Christine D. Little

United States Magistrate Judge

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