F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 8 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LOU E. SEYMORE,
Plaintiff-Appellant,
v.
No. 97-5068
KENNETH S. APFEL, Commissioner, (D.C. No. 96-CV-178-M)
Social Security Administration, * (N.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT **
Before KELLY, McKAY, and BRISCOE, Circuit Judges.
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. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
Shirley S. Chater, former Commissioner of Social Security, as the defendant in
this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Claimant Lou E. Seymore appeals from the district court’s judgment
affirming the Commissioner’s decision denying her claim for disability
insurance benefits at step five of the five-part process for determining disability,
see 20 C.F.R. § 404.1520. In what now stands as the final decision of the
Commissioner, the administrative law judge determined that claimant had an
adjustment disorder and depression, but no exertional limitations, and that while
she could not return to her past relevant work, she retained the functional capacity
to perform the nonexertional requirements of work except for work requiring
more than minimal contact with the public or co-workers and work in a stressful
environment. Relying on a vocational expert’s testimony, the ALJ found that
there were janitorial and clerical jobs available that claimant could perform with
these limitations and thus found her not to be disabled. We review the
Commissioner’s decision to determine whether factual findings are supported
by substantial evidence and whether correct legal standards were applied.
See Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
Claimant first contends that the ALJ erred by ignoring an opinion by a
nonexamining state agency psychologist, Dr. Boon. Claimant contends the ALJ
must have ignored the opinion because he did not specifically refer to it in his
decision, which claimant contends is required by Social Security Ruling 96-6p,
1996 WL 374180 (July 2, 1996). Although claimant concedes that the ALJ’s
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findings are consistent with most of Dr. Boon’s opinion, she contends that the
ALJ’s findings are inconsistent with the psychologist’s opinion regarding her
problems with maintaining attention and decompensating. On the Psychiatric
Review Technique form Dr. Boon prepared, she indicated, without giving any
basis for her opinion, that claimant had deficiencies in concentration, persistence
or pace “often” and had episodes of decompensation or deterioration in work-like
settings “once or twice.” On the PRT form the ALJ prepared, he rated the degree
of limitation in these areas as “seldom” and “never” respectively. Claimant does
not contend that the ALJ’s findings are not supported by substantial evidence, but
contends that had the ALJ considered Dr. Boon’s opinion, his findings might have
been different.
While it would have been preferable for the ALJ to have specifically
addressed Dr. Boon’s opinion in his decision, we conclude that given the
complete lack of any reference to objective findings, the failure to do so in this
case is not reversible error. The ALJ’s decision states that he considered all
evidence in the record even if not specifically cited in the decision, and the fact
that his decision is consistent with most of Dr. Boon’s opinion is some indication
that he did consider her opinion. See Hamilton v. Secretary of Health & Human
Servs., 961 F.2d 1495, 1498-99 (10th Cir. 1992) (rejecting contention that ALJ
did not adequately consider nonmedical evidence of disabling pain; “[t]he ALJ
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stated that he considered all of the evidence; his reliance on medical findings does
not allow us to assume otherwise”); Clifton v. Chater, 79 F.3d 1007, 1009-1010
(10th Cir. 1996) (“The record must demonstrate that the ALJ considered all of the
evidence, but an ALJ is not required to discuss every piece of evidence.”).
Claimant next contends that the ALJ ignored the opinion of her treating
therapists who rated her Global Assessment of Functioning (GAF) at 45, which
she contends indicates “a mental impairment which, by definition, causes serious
symptoms or a serious impairment in functioning of a type which seriously
interfered with a person’s ability to keep a job.” Appellant’s Br. at 18. The
GAF scale defines the range from 41 to 50 as follows: “Serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable
to keep a job).” Appellant’s App. Vol. II at 11 (bolding deleted). Contrary to
claimant’s contention, a GAF rating of 45 may indicate problems that do not
necessarily relate to the ability to hold a job; thus, standing alone without further
narrative explanation, the rating of 45 does not evidence an impairment seriously
interfering with claimant’s ability to work. As the ALJ noted, none of the
therapists who rated claimant’s GAF indicated that she could not work or that her
problems interfered with her ability to keep a job. Thus, the ALJ did not
improperly ignore relevant evidence from claimant’s treating therapists.
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Finally, claimant contends that the ALJ erred by failing to establish that
claimant was able to perform work on a sustained basis consistent with
competitive employment. This argument is based primarily on claimant’s
contentions we have rejected above regarding the ALJ’s failure to properly
consider Dr. Boon’s opinion and the GAF rating. The ALJ noted that claimant
had been working sporadically, had been seeking work through her union, and
was successfully attending school full time. This evidence supports the ALJ’s
finding that claimant can work on a sustained basis.
The judgment of the district court is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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