Nelson v. Commissioner of Social Security ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0654n.06
Filed: August 28, 2006
No. 05-5879
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Joe W. NELSON, )
)
Plaintiff-Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Eastern
COMMISSIONER OF SOCIAL SECURITY, ) District of Tennessee
)
Defendant-Appellee. )
Before: BOGGS, Chief Judge; COLE, Circuit Judge; and ROSEN, District Judge.*
PER CURIAM. Plaintiff Joe W. Nelson (“Nelson”) appeals from a district court
decision affirming the Commissioner of Social Security’s denial of Nelson’s application for Social
Security disability insurance and supplemental security income benefits. Nelson argues that the
Administrative Law Judge (“ALJ”) did not adequately explain the weight he gave to the opinions
of two treating sources. He also argues that the ALJ’s decision was not supported by substantial
evidence. We agree that the ALJ did not explicitly state what weight he gave to the opinions of Drs.
Lane Cook and Glenn Peterson. We decline to reverse and remand, however, because the ALJ’s
analysis of Nelson’s mental impairments adequately addressed the opinions of Drs. Cook and
Peterson by indirectly attacking both the supportability of those opinions and the consistency of
*
The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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Nelson v. Comm’r of Soc. Sec.
those opinions with the record as a whole. We also find that substantial evidence supported the
ALJ’s denial of Nelson’s application for benefits. We affirm the decision of the district court.
I
Nelson filed for supplemental security income (“SSI”) benefits on December 15, 2001, and
for disability income benefits (“DIB”) on January 8, 2002. He alleged that he was disabled because
of mental impairments, namely anxiety, lack of concentration, panic attacks, feelings of
hopelessness, and nervousness around others. He alleged a disability onset date of August 15, 2001.
Nelson, born in 1975, finished 12th grade. From 1992 until September 2001, he worked
variously as a dishwasher, mail handler, construction worker, garage door installer, sewer of
backpacks, and retail store clerk. For two years ending in early 2002, Nelson studied computer
science at Pellissippi State Tech Community College.
Nelson began treatment with Dr. Lane Cook, a psychiatrist, on March 1, 2001. Nelson
complained of depression. Dr. Cook noted that Nelson reported depression, social anxiety, and sleep
problems, with low energy and concentration. Nelson informed Dr. Cook of past drug use. Nelson
was taking computer science classes at Pellissippi State. He played drums and listened to music.
Dr. Cook noted that Nelson’s Liebowitz Social Anxiety score was “quite high at 121.” Dr.
Cook gave Nelson a GAF score of 52, with 57 as Nelson’s highest score in a year. GAF is the
Global Assessment of Functioning, and is on a scale of 0-100, with mental health highest at the high
end; 50-60 indicates moderate symptoms or moderate difficulty in social, occupational, or school
functioning. See Nelson Br. at A-25; see also Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496,
502 n.7 (6th Cir. 2006) (per curiam); Martin v. Comm’r of Soc. Sec. Admin., 61 F. App’x 191, 193
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and nn.2, 3 (6th Cir. 2003). Dr. Cook diagnosed Nelson with generalized social phobia, “major
depressive disorder recurrent moderate chronic without full interepisode recovery,” and attention
deficit hyperactivity disorder (“ADHD”). Dr. Cook put Nelson on a variety of medications.
Subsequent entries in Dr. Cook’s records during the spring and summer of 2001deal mainly
with adjustments to the medications, although he did note that Nelson’s social anxiety had not
decreased. Notes during mid-2001 indicate that Nelson felt less depressed and that he could focus
better. In the fall of 2001, Dr. Cook noted that Nelson felt more stressed at work. Nelson eventually
stopped work as a clerk at a record store.
In November 2001, Dr. Cook filled out a questionnaire for Nelson’s Social Security claim.
Dr. Cook entered marks on a form indicating that, regarding Nelson’s mental ability to make work-
related performance adjustments, Nelson had a fair ability to understand, remember, and carry out
complex and detailed job instructions and a good ability to understand, remember, and carry out
simple job instructions. Dr. Cook elaborated that Nelson had “[p]roblems with disorganization and
poor attention to details. Anxiety worsens his attentional deficits.” Regarding Nelson’s mental
ability to make occupational adjustments, Dr. Cook opined that Nelson had a fair ability to follow
work rules and to function independently and maintain attention and concentration, but a poor or no
ability to relate to co-workers, deal with the public, use judgment with the public, interact with
supervisors, or deal with work stresses. Dr. Cook elaborated that Nelson “[r]ecently quit job over
difficulty with social interactions, also dropped out of college. He has regressed significantly since
entering treatment.” Regarding Nelson’s mental ability to make personal-social adjustments, Dr.
Cook opined that Nelson had a good ability to maintain personal appearance, a fair ability to
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demonstrate reliability, and a poor or no ability to behave in an emotionally stable manner or relate
predictably in social situations. Dr. Cook elaborated that Nelson had “[e]xtreme social anxiety,
problems interacting even on a limited superficial basis.” Dr. Cook ceased treating Nelson in
January 2002 when Nelson could no longer afford it.
Licensed social worker Melinda Triemstra reported in November 2001 that Nelson had
extreme social phobia, major depression, and attention deficit disorder. Triemstra gave Nelson a
GAF score of 21, indicating serious impairment or inability to function. She did not see him making
progress in the near future. Thereafter, Triemstra, who saw Nelson for therapy sessions at least
through mid-2002, continued to portray Nelson’s condition in by far the bleakest light of any of the
other professionals in the record. For example, in July 2002, Triemstra stated that Nelson “[p]retty
much is . . . unable to do anything that involves concentrating,” and in January 2004, apparently
without having seen Nelson for some time, she submitted a report that stated that Nelson faced
extreme or marked difficulties in a range of activities and capabilities.
On February 12, 2002, Pamela Branton, a licensed psychological examiner, examined Nelson
as part of his disability determination and wrote a report also signed by Dr. Bruce Seidner, a
psychologist. The report stated that Nelson loved listening to music, played drums occasionally, did
housecleaning, did his own laundry, and drove on a daily basis. The report diagnosed Nelson with
major depressive disorder, social phobia, and ADHD. It stated that Nelson’s ability to understand
directions was not significantly limited, that his recent memory was somewhat limited, and that
Nelson “appears to be an extremely avoidant individual who is very uncomfortable around others.
He would probably have significant difficulty maintaining appropriate interaction with the public,
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co-workers, and supervisors. He probably would have a lot of difficulty handling criticism from
supervisors and would most likely tend to withdraw.” The report concluded that Nelson “would
likely do better working alone or in a very supportive and reinforcing setting.”
On February 22, 2002, Nelson was admitted to Lakeshore Mental Health Institute, where he
stayed for a few days, following an episode in which his mother alleged that he had barricaded
himself in his room with a gun and the police became involved. Nelson denied any intention to
harm himself. The discharge report, written by Dr. Warren Rogers, diagnosed Nelson with ADHD
by history, social anxiety disorder, cannabis abuse, and depressive disorder. It assigned Nelson a
GAF score of 60. It noted that Nelson appeared slightly anxious at times but that he was oriented,
and had intact memory, concentration, and attention. The report stated that Nelson’s insight was fair
and his judgment impaired. Nelson was discharged with prescriptions and instructions to avoid
addictive substances.
In March 2002, Dr. James Walker reviewed the evidence for the state agency. Dr. Walker
found Nelson was not significantly limited in most areas, with moderate limitations in the ability to:
understand, remember, and carry out detailed instructions; maintain attention and concentration for
extended periods; perform activities within a schedule, maintain regular attendance, and be punctual;
complete a normal work day/week without interruptions from psychological symptoms; interact
appropriately with the public; accept instructions and respond to criticisms; and respond
appropriately to changes in the work setting. Dr. Walker noted that Nelson could “perform detailed
[tasks, presumably],” maintain a schedule with some lapses, work with the public at a low level,
accept criticism with some difficulties, and adapt to low-level change. Dr. Walker diagnosed Nelson
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with depressive syndrome, anxiety, and ADHD. Dr. Walker concluded that Nelson was moderately
limited in activities of daily living, maintaining social functioning, and maintaining concentration,
persistence, and pace, and had no episodes of decompensation. He noted that Nelson had been
misleading regarding his marijuana use, and that Nelson was avoidant but could be around the
public, adding that he took college classes.
Nelson received treatment at Ridgeview Psychiatric Hospital on various occasions from
December 2001 to 2003. Psychiatrist Dr. Ira Lew (so far as we can tell it was Dr. Lew) noted in
December 2001 that Nelson had a GAF of 55 and appeared oriented with intact thought processes,
memory, judgment, and insight, but with a suspicious attitude and depressed, anxious mood.
Reports from April and May 2002 indicate that Nelson was depressed and anxious, and that he
dropped out of school after the brief hospitalization, but also that his memory and concentration
were good, and that he “reports doing well.”
Dr. Frank Kupstas, who reviewed the evidence for the state in September 2002, found Nelson
not significantly limited in most areas, with moderate limitations in the ability to: maintain attention
and concentration for extended periods; interact appropriately with the general public; and respond
appropriately to changes in the work setting. Dr. Kupstas found that Nelson could maintain
concentration over extended periods of time for simple tasks and for detailed tasks with some
difficulty at times, and with some limitations had the ability to interact with people.
Nelson began treatment at Peninsula Behavioral Health in February 2003. A doctor
(apparently Dr. Glenn Peterson) found him to have a GAF score of 50 that April. In October 2003,
Nelson reported that he was not depressed or anxious. Nelson was exercising at home. He was still
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isolating himself, but medicine was helping his anxiety. In November, he reported decreased
concentration in the afternoon and anxiety. Both his sleep and appetite were “good.”
On December 30, 2003, Dr. Peterson filled out a form on which he indicated that Nelson was
moderately impaired in understanding and remembering simple instructions, making judgments on
simple work-related decisions, and interacting appropriately with co-workers; that he was markedly
impaired in carrying out short, simple instructions and responding to changes in a routine work
setting; and that he was extremely impaired in understanding, remembering, and carrying out
detailed instructions, in interacting appropriately with the public and with supervisors, and in
responding to pressures in a usual work setting. In support of that assessment, Dr. Peterson stated
that Nelson had “severe social anxiety” and “cannot relate to people.”
Nelson’s claim for benefits was denied initially and on reconsideration. He requested a
hearing. After a hearing that included testimony from Nelson and a vocational expert (VE), Jo Ann
Bullard, the ALJ issued an opinion denying Nelson’s claims on April 15, 2004.
The ALJ discussed the evidence in the case over five and a half pages. After reviewing
Triemstra’s reports, the ALJ set out the governing standards as to the weight to be accorded treating-
source medical opinions. He concluded that he would not give Triemstra’s medical opinions
considerable weight because Triemstra, as a social worker, did not meet the definition of an
acceptable medical source.
The ALJ then discussed Dr. Cook’s reports. While that discussion focused on Nelson’s
statements to Dr. Cook and the doctor’s adjustments of Nelson’s medications, it did not specifically
address Dr. Cook’s opinions regarding Nelson, as detailed above. After a review of the other
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medical evidence, during which the ALJ emphasized, e.g., the entries in the records from Dr.
Seidner and from Lakeshore (Dr. Rogers) and Ridgeview (Dr. Lew) that medication improved
Nelson’s condition and assigning Nelson GAF scores indicating only moderate symptoms, the ALJ
briefly addressed the evidence from Dr. Peterson, noting that “Dr. Peterson opined that due to the
claimant’s severe social anxiety, he could not relate to people.”
The ALJ found that Nelson passed steps 1 and 2 of the familiar five-step process for
determining disability outlined at 20 C.F.R. §§ 404.1520 and 416.920, stating that Nelson had not
worked since his alleged onset date and that he had anxiety, depression, poor concentration, panic
attacks, and suicidal thoughts that were “severe” within the meaning of the regulations. At step 3,
the ALJ evaluated Nelson’s affective disorder, anxiety-related disorder, and personality disorder
under listings 12.04, 12.06, and 12.08, respectively, in 20 C.F.R. Pt. 404, Subpt P, App. 1. The ALJ
determined that Nelson’s impairments did not meet or medically equal those listings. The ALJ
found that Nelson had no limitations in the activities of daily living, mild-to-moderate limitation in
social functioning, mild-to-moderate limitation in concentration, persistence, and pace, and that he
experienced one or two episodes of decompensation. Those limitations did not meet the Part B
criteria for the three relevant listings.
The ALJ moved on to determine Nelson’s residual functional capacity (RFC) for steps 4 and
5. The ALJ noted, in summarizing Nelson’s testimony from the hearing, that Nelson said he left his
residence (he lived with a cousin) to see doctors and therapists and to go grocery shopping, tried to
avoid his cousin, and had trouble concentrating even on television for more than a few minutes. The
ALJ concluded that the record “does not support the claimant’s testimony regarding the intensity
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and persistence of his symptoms.” The ALJ found Nelson “not totally credible” in his description
of his limitations.
The ALJ noted that the record showed that treatment had been “generally successful in
controlling [Nelson’s] symptoms” (a conclusion supported by, e.g., his discussion of the records
from Dr. Seidner and from Lakeshore and Ridgeview), and cited Nelson’s going to the store, doing
cleaning and making microwave dinners for himself, his having gone to college (ending in early
2002) and maintained a good grade point average when on a particular medication, records showing
his sleep and appetite as good and his energy level as okay, his playing drums and enjoying music
and the computer, his exercising, and recent medical office notes indicating no depression or
anxiety.
Referencing Medical-Vocational Guideline 204.001, the ALJ concluded that Nelson retains
the RFC to perform a wide range of work, “provided that he avoid complex or highly detailed work
and avoid frequent contact with the public.” The ALJ based that determination on “the overall lack
of objective findings, the types of daily activities he performs and the fact that claimant did not
allege a physical impairment.” The ALJ further supported that finding by stating that the
conclusions of the nonexamining state agency medical consultants (Drs. Walker and Kupstas) that
Nelson was only moderately limited in his ability to work were consistent with the findings of Dr.
1
When claimants fall within the Medical-Vocational Guideline at 20 C.F.R. § 404, Subpt.
P, App. 2, 204.00, they “retain the functional capacity to perform heavy work” and “ordinarily will
not have a severe impairment or will be able to do their past work–either of which would have
already provided a basis for a decision of ‘not disabled.’” The ALJ, as discussed in the text below,
ultimately concluded that Nelson was able to perform his past work as a kitchen helper, garage door
assembler, material handler, forklift driver, and log truck driver.
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Seidner. The ALJ did not give much weight to Triemstra because she was not a medical source.
The ALJ did not discuss specifically what weight he gave Dr. Cook’s or Dr. Peterson’s opinions.
Concluding that Nelson’s “impairments preclude only complex or highly detailed work and frequent
contact with the public,” the ALJ determined that Nelson could return to his previous
work–specifically as a kitchen helper, garage door assembler, material handler, forklift driver, and
log truck driver, based on the testimony of the VE. Nelson thus failed step 4.
The Appeals Council denied Nelson’s request for review, making the ALJ’s decision the
final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. The district court affirmed
the Commissioner’s denial of benefits. The district court found that while the ALJ’s opinion was
not written as clearly as it could have been, the ALJ’s rationale for rejecting the opinions of Drs.
Cook and Peterson was nonetheless discernable; those opinions were not based on clinical and
laboratory diagnostic techniques and were inconsistent with the record as a whole. Nelson v.
Barnhart, No. 3:04-CV-346, slip op. at 8-10 (E.D. Tenn. Mar. 23, 2005), included as appendix in
Nelson Br. at A-13-A-15 and in Comm’r Br. at A-19-A-21. In addressing the ALJ’s finding that
Nelson was not fully credible, the district court pointed out various inconsistencies in the record
regarding Nelson’s self-reporting of his drug use, and noted with dismay Nelson’s statement in a
request for reconsideration of the initial denial of benefits in 2002 that if he received the benefits,
“I would be able to concentrate on school, graduate, and better my situation; therefore, help would
no longer be needed.” The district court commented that if Nelson is able to graduate and “better
himself,” he is able to work. The district court also pointed to testimony from Nelson at the hearing
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that his trouble with supervisors at his most recent job was diminished if he did what he went to
work to do.
II
Nelson’s appeal focuses on the ALJ’s lack of explicit explanation regarding the weight given
to the opinions of Drs. Cook and Peterson and social worker Trietsma. The Commissioner argues
that the ALJ’s opinion shows that those opinions were not supported by clinical or diagnostic
findings and were inconsistent with the record, that the ALJ therefore by clear inference did not
afford them much weight, and that the ALJ’s opinion was supported by substantial evidence.
A
“This court must affirm the Commissioner’s conclusions absent a determination that the
Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387,
390 (6th Cir. 2004) (internal quotation marks and citation omitted). See also 42 U.S.C. § 405(g).
“Substantial evidence” is “more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip
v. Sec’y of Health & Human Servs., 25 F.3d 285, 286 (6th Cir. 1994). This court “must defer to an
agency’s decision even if there is substantial evidence in the record that would have supported an
opposite conclusion, so long as substantial evidence supports the conclusion reached by the ALJ.”
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (internal quotation marks and
citation omitted). This court may not review the case de novo, resolve conflicts in the evidence, or
decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
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We review de novo the district court’s grant of summary judgment. See Sharp v. Barnhart,
152 F. App’x 503, 506 (6th Cir. 2005). Where, as here, the Commissioner adopts the ALJ’s decision
as the Commissioner’s own, we review the ALJ’s decision directly. Ibid.
B
Under 42 U.S.C. § 423(d)(2), a person is disabled under the Social Security Act if “his
physical or mental impairments are of such severity that he is not only unable to do his previous
work but cannot . . . engage in any other kind of substantial gainful work . . . .” The Commissioner
follows the familiar five-step evaluation process for determining whether the claimant is disabled.
20 C.F.R. §§ 404.1520, 416.9202; Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001).
The regulations specify a particular technique for evaluating the severity of mental
impairments and, if the impairments are severe, for determining if they meet or equal in severity a
listed mental disorder. 20 C.F.R. §§ 404.1520a, 416.920a. That technique centers on the ALJ’s
rating the claimant’s degree of limitation in three functional areas (activities of daily living; social
functioning; and concentration, persistence, and pace) and then enumerating episodes of
decompensation. The degree of limitation in the functional areas is determined based on a five-point
scale of none, mild, moderate, marked, and extreme. Ibid.; see also 20 C.F.R. § 404, Subpt. P, App.
1, 12.00.
The mental health listings that the ALJ used in this case are 12.04, affective mood disorders;
12.06, anxiety related disorders; and 12.08, personality disorders. The first two require parts A and
2
The Commissioner’s regulations governing the evaluation of disability for DIB are at 20
C.F.R. Part 404, and for SSI are at 20 C.F.R. 416. They are identical for purposes of this case. See
Commissioner’s Br. at 3 n.2.
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B or A and C of the listings to be satisfied; the last only has A and B parts, both of which must be
satisfied. In each case, part B of the listing requires that the condition (determined in Part A) result
in “at least two of the following”:
1. Marked restriction in activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining, concentration, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
The ALJ did not explicitly discuss the A part of each of the listings but stated that Nelson,
based on the ratings the ALJ gave him in the three functional areas and the number of
decompensations, did not meet the B part, nor did Nelson meet the C part of listing 12.04 and 12.06.
The ALJ then went on to determine Nelson’s RFC and, combining that with the VE evidence,
determined that Nelson failed step 4.
The Commissioner’s regulations discussing the evaluation of opinion evidence state that the
Commissioner will evaluate every medical opinion and will consider the following factors in
deciding what weight to give each opinion: examining relationship; treatment relationship;
supportability; consistency; specialization; and other factors. 20 C.F.R. §§ 404.1527(d), 416.927(d).
See generally 20 C.F.R. §§ 404.1527, 416.927. A treating source opinion is given controlling
weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in the case record. If the treating source
opinion is not given controlling weight, its weight is determined by the same factors that are
considered in evaluating every medical opinion. The regulations specify that the Commissioner
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“will always give good reasons in our notice of determination or decision for the weight we give
your treating source’s opinion.”3 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
Recent opinions from this court reflect that the ALJ must provide good reasons for the
weight given a treating source’s opinion. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir.
2004); Hall v. Comm’r of Soc. Sec., 148 F. App’x 456 (6th Cir. 2005). Wilson reversed and
remanded a denial of benefits, even though “substantial evidence otherwise supports the decision
of the Commissioner,” because the ALJ failed to give good reasons for discounting the opinion of
the claimant’s treating physician. Wilson, 378 F.3d at 543-46. The Wilson court refused to decide
whether a de minimis violation of the § 1527(d)(2) procedural requirement may qualify as harmless
error, but noted instances it which it might: 1) if “a treating source’s opinion is so patently deficient
that the Commissioner could not possibly credit it”; 2) “if the Commissioner adopts the opinion of
the treating source or makes findings consistent with the opinion”; or 3) “where the Commissioner
has met the goal of § 1527(d)(2)–the provision of the procedural safeguard of reasons–even though
she has not complied with the terms of the regulation.” Id. at 547.
In Hall, the court also reversed and remanded where the Commissioner had failed to provide
good reasons for the weight given a treating source’s opinion. 148 F. App’x at 457. Hall went some
way to interpreting the third example provided by the Wilson court for when a violation of the
3
That point is echoed in Social Security Ruling (“SSR”) 96-2p, a policy interpretation
entitled “Giving Controlling Weight to Treating Source Medical Opinions,” which states that “the
notice of the determination or decision,” if unfavorable, “must contain specific reasons for the
weight given to the treating source’s medical opinion, supported by evidence in the case record, and
must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.” Soc. Sec. Rul. 96-2p,
1996 WL 374188, at *5.
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requirement that the Commissioner give good reasons for the weight given a treating source opinion
may amount to harmless error–i.e., that the Commissioner met the goal of that procedural protection,
if not its letter. Id. at 462-67. In Hall, the ALJ had failed to explain the weight given to the opinions
of a Dr. Caudill, a treating source who provided opinions on mental and physical impairments of the
claimant. Id. at 458-59, 463. The Hall court interpreted the final example provided by the Wilson
court of a harmless error–if the ALJ meets the goal of § 1527(d)(2)–as follows:
As applied to this case, the ALJ could have met the goal of providing good reasons
[for dismissing the medical opinion of Dr. Caudill regarding the claimant’s back
ailment] by either his analysis of Dr. Caudill’s other opinions or his analysis of
Hall’s back problems in general. Such analyses would perhaps adequately address
Dr. Caudill’s opinion about Hall’s back pain by indirectly attacking the
“supportability” of the doctor’s opinion, § 404.1527(d)(3), or the “consistency” of
his opinion with the record as a whole, § 404.1527(d)(4), both of which are grounds
for rejecting a treating source opinion, see § 404.1527(d)(2). However, it is critical
that, when reviewing the ALJ’s reasoning for this purpose, we remember the goals
of the procedural safeguard. We are reviewing the . . . decision to see if it implicitly
provides sufficient reasons for the rejection of Dr. Caudill’s opinion regarding Hall’s
back, . . . not merely whether it indicates that the ALJ did reject Dr. Caudill’s
opinion.
Id. at 464.
Applying that analysis to this case, we find that the ALJ’s evaluation of Nelson’s mental
impairments indirectly attacks both the supportability of Dr. Cook’s and Dr. Peterson’s opinions and
the consistency of those opinions with the rest of the record evidence.
The parties agree that Drs. Cook and Peterson are treating sources. The Commissioner also
concedes that Nelson’s impairments are severe; the issues here focus on the ALJ’s findings at steps
3-5, and the weight it gave to the opinions of Drs. Cook and Peterson in making those findings. The
ALJ’s references to the opinions of Drs. Cook and Peterson are brief, and provide no explicit
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indication of the weight it gave either doctor’s opinion regarding Nelson’s limitations, as the ALJ
was required to do.
However, the ALJ’s discussion of the other record evidence about Nelson’s mental
impairments makes clear that the opinions of Drs. Cook and Peterson as to Nelson’s limitations do
not meet one of the two criteria for controlling weight: that the opinion be consistent with the other
record evidence as a whole. Drs. Cook and Peterson found considerable limitations on Nelson’s
work abilities, as detailed above. The VE noted in her testimony that if Nelson were limited in the
ways Drs. Cook and Peterson found, Nelson could not perform on a sustained basis any jobs that
existed in significant number. Dr. Cook’s and Dr. Peterson’s opinions obviously conflict with the
medical opinions of: 1) Drs. Walker and Kupstas, the nonexamining state agency doctors, who
found few and only moderate limitations resulting from Nelson’s mental impairments; 2) Dr.
Rogers, who wrote the discharge report from Nelson’s stay at Lakeshore, who found that Nelson had
a GAF of 60 and intact memory, concentration, and attention, and fair insight; 3) Dr. Seidner, who
determined that Nelson could work alone or in a very reinforcing setting; and 4) Dr. Lew, who
assigned Nelson a GAF of 55 and noted that Nelson had intact thought processes, memory,
judgment, and insight. In his opinion, the ALJ specifically discussed the findings of Drs. Walker,
Kupstas, and Seidner, and the Lakeshore discharge report, which was written by Dr. Rogers.
Furthermore, the ALJ explicitly stated that the opinions of Drs. Walker, Kupstas, and Seidner were
consistent, thereby further attacking, albeit indirectly, the opinions of Drs. Cook and Peterson. We
think it clear that the ALJ’s discussion of the record evidence shows that the ALJ found the opinions
of Drs. Cook and Peterson to be inconsistent with the other record evidence. This case thus stands
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in stark contrast to Hall, where the court’s review of the ALJ’s discussion of Hall’s back problems
turned up no reason for the ALJ’s rejection of Dr. Caudill’s opinion on that subject. 148 F. App’x
at 465-66. In Hall, none of the opinions of the various doctors as to the claimant’s back pain
recommended the RFC ultimately adopted by the ALJ; in determining the claimant’s RFC, the ALJ
did not “compare any of the medical evidence about Hall’s back problem”; and the ALJ’s conclusion
did not reveal the reasons for dismissing Dr. Caudill’s opinion. Id. at 466.
Furthermore, in addition to indirectly attacking the consistency of Dr. Cook’s and Dr.
Peterson’s opinions with the rest of the record evidence, in this case the ALJ stated that “there are
no clinical and diagnostic findings to establish [that Nelson] has conditions that would significantly
compromise” his RFC. That passage, although it does not directly address the medical opinions of
Drs. Cook and Peterson, is an indirect attack on the supportability of those opinions. And indeed,
Dr. Cook’s and Dr. Peterson’s opinions are not well-supported nor explained by medical signs and
laboratory findings. See 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3).
For example, Dr. Cook, who treated Nelson from March 1, 2001, to approximately January
2002, assigned Nelson a GAF of 52, indicating moderate symptoms or moderate difficulty in social,
occupational, or school functioning. Over the course of his treatment with Dr. Cook, Nelson
reported doing better at various times as a result of the medications. Yet on the form that Dr. Cook
filled out for Nelson’s Social Security claim, Dr. Cook opined that Nelson had a poor or no ability
to, e.g., interact with supervisors or function independently. That opinion seems incompatible with
the GAF score Dr. Cook assigned Nelson and the improvement generated by prescription
medications.
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No. 05-5879
Nelson v. Comm’r of Soc. Sec.
Dr. Peterson, who treated Nelson in 2003, gave Nelson a GAF of 50, again indicating
moderate symptoms or moderate limitations. Nelson at one point told Dr. Peterson that he was not
depressed or anxious, although he later reported some decreased concentration in the afternoon and
some anxiety. On December 30, 2003, however, Dr. Peterson indicated on a form that Nelson was
markedly impaired in, e.g., carrying out short, simple instructions, and extremely impaired in, e.g.,
responding to pressures in a usual work setting. Dr. Peterson provided little or no elaboration on
those opinions, and the treatment records do not show that those opinions are supported by
medically acceptable clinical and laboratory diagnostic techniques. Numerous other doctors who
had assigned Nelson similar GAF scores had not found Nelson to be so impaired.
We find that the ALJ’s analysis of Nelson’s mental problems adequately addressed Dr.
Cook’s and Dr. Peterson’s opinions by indirectly attacking both the consistency of those opinions
with the other record evidence and their supportability. The ALJ implicitly provided sufficient
reasons for not giving those opinions controlling weight, and indeed for giving them little or no
weight overall. The ALJ thus “met the goal of § 1527(d)(2)–the provision of the procedural
safeguard of reasons–even though she has not complied with the terms of the regulation.” Hall, 148
F. App’x at 462 (internal quotation marks omitted) (quoting Wilson, 378 F.3d at 547). We take the
opportunity to note, however, that this is a rare case of the ALJ’s analysis meeting the goal of the
rule even if not meeting its letter. The Commissioner’s own regulations and our case law state that
the Commissioner must provide good reasons for rejecting the medical opinion of a treating source.
That rule is a “procedural protection,” see Wilson, 378 F.3d at 546, and a way of ensuring
“meaningful review” of the ALJ’s decision, see id. at 544.
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No. 05-5879
Nelson v. Comm’r of Soc. Sec.
We note briefly that Nelson complains of the weight given to the opinions of Triemstra, the
social worker. In the ALJ’s view, Triemstra’s opinions did not merit considerable weight in
determining Nelson’s RFC. As discussed above, the ALJ explicitly stated that Triemstra was not
an acceptable medical source under the regulations, a statement that Nelson does not contest.
Moreover, the ALJ’s analysis of Triemstra’s statements and the rest of the record evidence make
clear that Triemstra’s statements were incompatible with the other evidence, including even the
opinions of Drs. Cook and Peterson.
Nelson complains about the hypothetical question posed by the ALJ to the VE, which posited
limitations on Nelson that were less severe than those found by Drs. Cook and Peterson, but that is
essentially no more than a different way of challenging the weight given to the opinions of Drs.
Cook and Peterson, which we have already analyzed in detail.
Finally, the ALJ’s opinion is supported by substantial evidence, e.g., the assessments by Drs.
Walker, Kupstas, Rogers, and Seidner. The ALJ reasonably found Nelson’s credibility as to his
limitations to be less than complete.
III
For the foregoing reasons, we AFFIRM the decision of the district court.
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