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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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).
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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.
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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...)
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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).
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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.
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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.
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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
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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...)
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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.
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“[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
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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.”).
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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.
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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.
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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,
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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
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