Givens v. Astrue

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES CO URT O F APPEALS October 18, 2007 Elisabeth A. Shumaker FO R TH E TENTH CIRCUIT Clerk of Court

CR YSTA L M . GIVEN S,

Plaintiff-Appellant,

v. No. 07-5021 (D.C. No. 05-CV-612-M ) M ICH AEL J. ASTRU E, (N.D. Okla.) Commissioner, Social Security Administration,

Defendant-Appellee.

OR D ER AND JUDGM ENT *

Before HO LM ES, HOL LOW A Y, and SEYM OUR, Circuit Judges.

Crystal M . Givens appeals from an order of the district court affirming the

Commissioner’s decision denying her application for Supplemental Security

Income benefits (SSI). M s. Givens filed for these benefits on September 29,

2003. She alleged disability based on knee surgeries, back pain, carpal tunnel

* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. syndrome, anxiety, and depression. The agency denied her applications initially

and on reconsideration. We reverse and remand for further consideration.

On April 26, 2005, M s. Givens received a de novo hearing before an

administrative law judge (ALJ). The ALJ determined that M s. Givens retained the

residual functional capacity (RFC) to perform sedentary work, restricted by: her

inability to use her lower extremities for repetitive movements such as operating

foot pedals; her inability to climb stairs or ladders; and her need to avoid

unprotected heights, moving machinery, driving, and vibrations. He found that

she could not return to her past relevant work but that there were a significant

number of other jobs which she could perform in the national or regional

economy. Applying the M edical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt.

P, App. 2, rule 201.24 (the grids) as a framework, the ALJ concluded that M s.

Givens was not disabled within the meaning of the Social Security Act. When the

Appeals Council denied review, the ALJ’s decision became the final decision of

the Commissioner.

We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied. Andrade v. Sec’y of Health & Human Servs.,

985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations omitted).

-2- The Commissioner follows a five-step sequential evaluation process

to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d

748, 750-52 (10th Cir. 1988). The claimant bears the burden of establishing

a prima facie case of disability at steps one through four. See id. at 751 n.2.

If the claimant successfully meets this burden, the burden shifts to the

Commissioner at step five to show that the claimant retains a sufficient RFC to

perform work in the national economy, given her age, education and work

experience. See id. at 751. This case was decided at step five of the sequential

analysis.

In this appeal, M s. Givens contends that the ALJ failed to perform a proper

step five evaluation. She advances several alleged deficiencies in his analysis,

mostly concerned w ith his evaluation of her alleged mental impairments.

Specifically, she contests his failure to consider (1) the effect of her Global

Assessment of Function Score (GAF) on her ability to work; (2) the effect of her

somatoform disorder; (3) the Psychiatric Review Technique form (PRT)

completed by the agency’s reviewing experts; and (4) the effect of her carpal

tunnel syndrome.

1. M ental Impairments

W e find it useful to consider M s. Given’s challenges to the evaluation of

her mental impairments as a unit. In the aggregate, the deficiency of the A LJ’s

analysis becomes starkly evident.

-3- A. M edical Evidence

At a young age, M s. Givens suffered from a number of severely traumatic

experiences that contributed to her history of anxiety and depression. She

testified at the ALJ hearing that, at the age of seven or eight, she was raped by

one of her mother’s friends. At thirteen she was raped again, by a friend of her

boyfriend. In her adult life, she has a longstanding history of abusive

relationships with men.

The first medical record concerning treatment for depression present in the

administrative record is dated M ay 12, 2004, from Dr. Collier. He assessed M s.

Givens with “moderately depressed mood,” Aplt. App., Vol. III, at 252, and

prescribed Elivil for depression. The Elivil w as later changed to W ellbutrin.

On June 14, 2004, an outpatient treatment plan was completed for

M s. Givens at FC& S M ental Health Care. It was noted that in 1994, she was

treated for depression for about one year, at which time she w as prescribed first

Prozac and then Zoloft. Her 2004 diagnoses were 1) M ajor Depression, Severe,

with Psychotic Features; 2) Post-Traumatic Stress Disorder (PTSD ); and 3)

Attention Deficit H yperactivity Disorder (ADHD), Inattentive Type. Id. at 203.

The report assigned her a G A F score of 50, and indicated that her highest GA F

score in the past year was also 50. 1

1 “The GAF is a subjective determination based on a scale of 100 to 1 of ‘the (continued...)

-4- The treatment plan noted that M s. Givens “reports seeing shadowy figures

and shapes and hearing voices at night.” Id. at 204. She was “anxious and

nervous over how others treat her,” was “[e]asily distracted, unable to focus on

tasks, easily bored and irritated.” Id. She reported that she was “nervous and

emotional[ly] [labile] and easily angered by everybody and everything.” Id. at

205. It was noted that she w as chronically tired, unable to keep up w ith her house

work, failed to maintain personal hygiene on a daily basis, and “ends up in her

room and lets the kids fend for themselves.” Id.

A physician with FC& S noted on July 28, 2004, that M s. Givens had

suffered from suicidal ideation but had made no attempts to kill herself. She

sometimes sensed the presence of her deceased grandmother. Id. at 200. W hile

this doctor did not see evidence of psychosis, she noted “social isolation” as a

diagnosis and also assigned M s. Givens a GAF score of 50. Id. at 201.

On November 4, 2004, a documentation form from FC& S noted that

M s. Givens’ progress in psychotherapy was “slow.” Id. at 303. An outpatient

treatment plan completed at around the same time diagnosed her with (1) M ajor

1 (...continued) clinician’s judgment of the individual’s overall level of functioning.’ A MERICAN P SYCHIATRIC A SSOCIATION , D IAGNOSTIC AND S TATISTICAL M ANUAL OF M ENTAL D ISORDERS (Text Revision 4th ed. 2000) [DSM -IV-TR] at 32. . . . A GAF score of 41-50 indicates ‘[s]erious symptoms . . . [or] serious impairment in social, occupational, or school functioning,’ such as inability to keep a job. Id. [at 34].” Langley v. Barnhart, 373 F.3d 1116, 1123 n.3 (10th Cir. 2004).

-5- Depression Recurrent with Psychotic Features and (2) Cannabis Abuse. It noted

that she had “decompensated over the past 4 weeks in feelings and self-care and

thinking ability.” Id. at 308. M s. Givens appeared disheveled at times and was

“sad and worried most of each day,” id. at 310.

B. H earing Testimony

M s. Givens’ mood fluctuated over the next few months, mostly in

connection with difficulties with her boyfriend. At the hearing before the A LJ,

she reported difficulty sleeping, with nightmares and dreams about her

grandmother. She had difficulties leaving her house because she sought to avoid

interaction with others and had difficulties controlling her anger. She also stated

that she heard voices. W hen asked what the voices told her, she said they told her

to kill her boyfriend. She also heard the voices when she went grocery shopping.

She tried to ignore them so that she would not “get in trouble.” Id. at 397.

At the hearing, M s. Givens’ attorney asked the vocational expert (VE)

whether a person with a GAF score of 50 would be able to maintain employment.

She replied:

Generally, they would not. They would be able to work for short periods of time, but that [GAF score] puts them in a serious range of sustaining work-like activities over long periods, even some problems with the activities of daily living on a sustained basis.

Id. at 404.

-6- C. Agency PRT Form

In addition to the medical records, M s. Givens’ testimony, and the V E’s

opinion, the record contains a Psychiatric Review Technique (PRT) form

completed January 2, 2004 (prior to the aforementioned medical records) by Dr.

Pearce, a non-examining agency psychologist. Dr. Pearce concluded that M s.

Givens suffered from an “Adjustment disorder [with] depressed mood,” id. at 179,

and an “Adjustment disorder [with] anxious mood,” id. at 181, but that these

disorders did not represent severe impairments. He assigned her only “mild”

limitations in the categories of “Restriction of Activities of Daily Living”;

“Difficulties in M aintaining Social Functioning”; and “Difficulties in M aintaining

Concentration, Persistence, or Pace.” Id. at 186. He concluded that there was

insufficient evidence of “Episodes of Decompensation, Each of Extended

Duration.” Id.

Dr. Pearce gave several reasons for his conclusion that M s. Givens’ mental

impairments were not severe. 2 None of these reasons finds support in the

evidence. First, he noted that although M s. Givens stated in her application for

benefits that she was taking Zoloft, an anti-depressant, she also indicated that she

had not seen anyone for medical health treatment. Id. at 188. M s. Givens’

2 The statement of reasons, contained in the portion of the form reserved for “consultant’s notes,” may have been completed by the physician who reviewed Dr. Pearce’s work, Dr. V arghese. Aplt. A pp., Vol. III, at 188.

-7- application for SSI benefits is a mechanically-produced form that contains no

reference to medical treatment. Id., Vol. II, at 83-85. W e presume Dr. Pearce

was referring to her “Disability Report – Adult.” The “Disability Report – Adult”

is undated but must have been completed sometime between September 24 and

October 3, 2003, id. at 98, i.e., prior to Dr. Pearce’s determination. This form

does refer to her Zoloft prescription, see id. at 99, but it also notes that

M s. Givens was seeing a Dr. Stairs “for Depression and Anxi[et]y” and that she

had an upcoming appointment with him, id. at 98. Given this reference to

treatment, the record does not support Dr. Pearce’s conclusion that M s. Givens

denied receiving current mental health treatment.

Dr. Pearce further stated that M s. Givens’ current treating physician did not

indicate that she was taking any medications for depression. Id., Vol. III, at 188.

It is unclear what record he relied on to make this conclusion. W hile it is true the

medical records from Family M edicine Associates, M s. Givens’ treating

physicians just prior to Dr. Pearce’s completion of the PRT form, do not mention

her Zoloft prescription, they also do not contain any comprehensive summary of

her current medications. Id. at 288-91. The absence of a reference to Zoloft thus

appears inconclusive at best.

Dr. Pearce also relied on a reference in a medical record dated October 24,

2003, that M s. Givens appeared “alert and oriented.” Id. at 188. The referenced

record was generated for discharge purposes after M s. Givens’ surgery under

-8- general anesthesia. A nurse checking these two boxes after the surgery on a form

that also advised M s. Givens not to drive, operate machinery of any kind, or sign

legal documents for 24 hours, and warned her of intermittent dizziness, id. at 151,

can hardly be viewed as a professional medical opinion regarding her mental

status generally.

Finally, Dr. Pearce noted “[n]o mental allegations indicated by

[M s. Givens’ treating physicians].” Id. at 188. This conclusion appears to have

been reached without any reference to treatment records from Dr. Stairs, which

are not contained in the record although they are referred to by M s. Givens in her

disability report.

D. ALJ’s Decision

In his decision, the ALJ described the FC& S evaluations of June 14, 2004,

and November 2, 2004, but did not identify the weight he gave to them or provide

any reasons for rejecting their conclusions. He then listed depression as one of

M s. Givens’ severe impairments. Id., Vol. II, at 51. Apparently relying on the

PRT form completed by Dr. Pearce, but without explicit reference to it, he

concluded that she did not meet the full requirements of a Step Three listing for a

mental impairment. Id. at 51-52. 3 Interestingly, in spite of the November 4, 2004

3 The A LJ’s evaluation of the mental functional limitation categories differs from that of Dr. Pearce in one respect: the ALJ found “no” limitation with respect to social functioning, while D r. Pearce found a “mild” restriction in this (continued...)

-9- record reference to M s. Givens’ decompensation over a period of four weeks, the

ALJ’s decision tracked Dr. Pearce’s earlier PRT form in finding “[t]here is no

evidence in the record of deterioration or decompensation because of her mental

impairments.” Id. at 52. Dr. Pearce’s form was, of course, also prepared before

the FC& S records concerning her mental health were generated.

This was the last reference to a mental impairment in the ALJ’s decision.

His RFC determination contained no reference to mental limitations of any kind.

Id. at 53.

E. Analysis

W e discern multiple significant errors in the ALJ’s evaluation of

M s. Givens’ mental impairments and, hence, in his conclusions regarding her

RFC and her ability to perform the jobs he identified at step five of the analysis.

Of primary concern, the ALJ concluded at step two of the analysis that

M s. Givens’ depression constituted a severe impairment. That impairment had

disappeared from his analysis, however, by the time he reached step five. This

adjudicative sleight-of-hand was not achieved in conformity with either the

applicable regulations or the evidence. A discussion of the A LJ’s errors

throughout his analysis is helpful in understanding his missteps at step five.

3 (...continued) area. Com pare Aplt. App., Vol. II, at 52 with id., Vol. III, at 186.

-10- “[A]n ALJ is required to consider all of the claimant’s medically

determinable impairments, singly and in combination; the statute and regulations

require nothing less” and a failure to do so “is reversible error.” Salazar v.

Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). In the case of mental impairments,

the ALJ must determine the severity of an applicant’s mental impairments using

the procedures described (for SSI purposes) in 20 C.F.R. § 416.920a. These

procedures require him to rate the degree of functional limitation attributable to

the alleged impairment. § 416.920a(c). Here, the ALJ found that M s. Givens had

only

mild limitation with respect to “activities of daily living,” [had] no limitation with respect to social functioning, and [had] mild limitation with respect to concentration[,] persistence, and pace. There is no evidence in the record of deterioration or decompensation because of her mental impairments.

Aplt. App., Vol. II, at 52.

Notwithstanding these conclusions about the “mild” nature of the functional

limitations caused by M s. Givens’ depression, the ALJ nevertheless concluded at

step tw o that depression was a “severe” impairment. Aplt. A pp., Vol. II, at 51.

This creates an odd inconsistency in his decision. But in fact, the A LJ’s

conclusion that M s. Givens had only mild or no significant limitations due to

mental impairments finds little support in the record. His decision gives no

specific reasons, with reference to the evidence, for his conclusions. The only

medical opinion that provides specific support for his conclusions appears to be

-11- Dr. Pearce’s PRT form. For the reasons we have discussed, the medical evidence

does not support the statement of reasons contained on the PRT form. See

Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994) (“There must be

competent evidence in the record to support the conclusions recorded on the PRT

form and the ALJ must discuss in his opinion the evidence he considered” in

reaching his conclusions regarding claimant’s mental limitations) (citation

omitted). M oreover, the evidence flatly contradicts the ALJ’s statement that there

is no evidence in the record of decompensation due to mental impairments. See

Aplt. A pp., Vol. III, at 308.

As we have detailed above, the record contains much evidence indicating

that M s. Givens’ mental impairments are anything but mild. Psychotic

depression, for example, w ould seem to have at least some impact on one’s ability

to work. The ALJ gave only cursory consideration to this evidence in his

decision, and supplied no reasons for rejecting it. An ALJ “may not ignore

evidence that does not support his decision, especially when that evidence is

significantly probative.” Briggs ex rel. Briggs v. M assanari, 248 F.3d 1235, 1239

(10th Cir. 2001) (quotation omitted); see also Clifton v. Chater, 79 F.3d 1007,

1010 (10th Cir. 1996) (“[I]n addition to discussing the evidence supporting his

decision, the ALJ also must discuss . . . significantly probative evidence he

rejects.”).

-12- In particular, M s. Givens’ treating physician assigned her a GAF score of

50. The ALJ gave no reason for rejecting this assessment. 4 The VE stated at the

hearing that a person with a GAF score of 50 would have difficulty maintaining

employment. Nowhere in his decision did the ALJ consider the effect of this

difficulty on M s. Given’s ability to work. Nor did he analyze the GAF score as

the opinion of a treating physician as required by the regulations and our case

law. See, e.g., Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).

A further error occurred when, having found M s. Givens’ depression

“severe” at step two – a determination virtually compelled by the evidence – the

ALJ failed to consider or include any mental limitation in his RFC analysis. See

Hargis v. Sullivan, 945 F.2d 1482, 1488 (10th Cir. 1991) (“[O]nce a mental

impairment is considered to be severe, it must be included in the residual

functional capacity assessment. . . .”); 20 C.F.R. § 416.920a(d)(3). W hile paying

lip service to this principle in his decision, see Aplt. App., Vol. I at 50, the ALJ

halted his evaluation of M s. Givens’ mental impairments at step three, id. at 52-

54.

4 In his brief, the Commissioner argues that a low GAF score “may indicate problems that do not necessarily relate to the ability to hold a job.” Aplee. Br. at 21. Even assuming this is true, the ALJ’s decision does not indicate he reached the conclusion that M s. Givens’ low GAF score was due to non-occupationally- related factors.

-13- The ALJ’s hypothetical question to the VE, while indicating that

M s. Givens would be “afflicted with symptoms from various sources” did not

identify any specific symptoms other than those resulting from pain. Id., Vol. III,

at 399. It is therefore unknow n w hether the V E would have concluded that M s.

Givens’ mental symptoms, as described by her physicians, left her incapable of

doing the jobs he identified. W e do know the VE was convinced that if her

hearing testimony, which among other things discussed sleep deprivation and

hearing voices, were true, she would not be able to perform any occupation. Id.

at 401-02.

In sum, this case must be remanded to the agency for a proper evaluation of

M s. Givens’ ability to work that includes her mental impairments, in accordance

with the statutory and regulatory criteria. The mental impairments should be

evaluated at each level in the administrative review process by following the

“special technique” set forth in the regulations. 20 C.F.R. § 416.920a(a). Any

conclusions reached on a PRT form should be supported by competent evidence in

the record. If the ALJ rejects any significantly probative medical evidence

concerning M s. Givens’ RFC, he must provide adequate reasons for his decision

to reject that evidence. His hypothetical questions to the VE should adequately

reflect the effect of any mental impairments he finds, and his conclusions on the

effect of such impairments on her ability to work should be supported by

substantial evidence.

-14- 2. Som atoform Disorder

M s. Givens argues that the A LJ ignored the existence of her “somatoform

disorder.” She points to a single reference in the agency PRT form, on which

Dr. Pearce noted a “chronic pain syndrome.” Aplt. App., Vol. III, at 188. She

contends that “chronic pain syndrome” is a form of somatoform disorder and

should not have been ignored by the ALJ. Aplt. Br. at 26. This passing

reference, however, unsupported by any objective medical evidence, did not

require further investigation or development of the record by the ALJ. See

Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997) (stating that ALJ’s duty

to develop the record concerning condition requires “the presence of some

objective evidence in the record suggesting the existence of [that] condition.”).

3. Carpal T unnel Syndrom e

Finally, M s. Givens contends the ALJ improperly rejected her claim that

she suffers from carpal tunnel syndrome. In his decision, he stated that her

complaint of carpal tunnel syndrome was “unsupported by the objective medical

evidence.” Aplt. App., Vol. II, at 52. She asserts that there is objective medical

evidence to support the diagnosis and that the ALJ should therefore have listed it

as a “severe” impairment at step two and considered its effect on her ability to

work at step five.

The medical record contains several references to carpal tunnel syndrome,

including specific diagnoses of that condition. Aplt. App., Vol. III, at 259, 265,

-15- 277, 279, 283. On January 14, 2004 and M arch 16, 2004, it was noted that testing

revealed a positive Tinel’s sign, id. at 263, 264, 283, which is indicative of the

syndrome, see Green-Younger v. Barnhart, 335 F.3d 99, 103 (2d Cir. 2003). The

ALJ’s conclusion that there was no objective medical evidence of carpal tunnel

syndrome is unsupported by the record. On remand, he should properly evaluate

the effect, if any, of M s. Givens’ alleged impairment of carpal tunnel syndrome

on her ability to perform work-related activities.

The judgment of the district court is REVERSED and the case is

REM ANDED to the district court, with instructions to remand to the

Commissioner for further proceedings in accordance with this order and

judgment.

Entered for the Court

Stephanie K. Seymour Circuit Judge

-16-