Seymore v. Chater ( 1997 )


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  •                                                                           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    This order and judgment is not binding precedent, except under the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
    3
    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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