Vansickle v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge Steven P. Shreder reversing and remanding the decision of the ALJ (Re: 2 Social Security Complaint) (dma, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
SHELLEY L. VANSICKLE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
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Case No. CIV-10-054-SPS
OPINION AND ORDER
The claimant Shelley L. Vansickle requests judicial review pursuant to 42 U.S.C.
§ 405(g) of the decision of the Commissioner of the Social Security Administration
denying his application for benefits under the Social Security Act. The claimant appeals
the decision of the Commissioner and asserts that the Administrative Law Judge (“ALJ”)
erred in determining that she was not disabled. As discussed below, the Commissioner’s
decision is REVERSED and the case is REMANDED to the ALJ for further proceedings.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social
Security Act “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy[.]” Id. § 423 (d)(2)(A). Social security regulations
implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R. §§
404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited in scope by 42
U.S.C. § 405(g). This Court’s review is limited to two inquiries: first, whether the
decision was supported by substantial evidence; and, second, whether the correct legal
standards were applied. Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997)
[citation omitted]. The term substantial evidence has been interpreted by the United
States Supreme Court to require “‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). The Court may not reweigh the evidence nor substitute
its discretion for that of the agency. Casias v. Secretary of Health & Human Services, 933
F.2d 799, 800 (10th Cir. 1991). Nevertheless, the Court must review the record as a
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Step one requires the claimant to establish that she is not engaged in substantial gainful
activity, as defined by 20 C.F.R. §§ 404.1510, 416.910. Step two requires the claimant to
establish that she has a medically severe impairment (or combination of impairments) that
significantly limits her ability to do basic work activities. Id. §§ 404.1521, 416.921. If the
claimant is engaged in substantial gainful activity, or if her impairment is not medically severe,
disability benefits are denied. At step three, the claimant’s impairment is compared with certain
impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant suffers from a listed
impairment (or impairments “medically equivalent” to one), she is found to be disabled without
further inquiry. Otherwise, the evaluation proceeds to step four, where the claimant must
establish that she lacks the residual functional capacity (RFC) to return to her past relevant work.
The burden then shifts to the Commissioner to establish at step five that there is work existing in
significant numbers in the national economy that the claimant can perform, taking into account
her age, education, work experience and RFC. Disability benefits are denied if the Commissioner
shows that the claimant’s impairment does not preclude alternative work. See generally Williams
v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).
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whole, and “[t]he substantiality of evidence must take into account whatever in the record
fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951); see also Casias, 933 F.2d at 800-01.
Claimant’s Background
The claimant was born on May 29, 1972, and was thirty-seven years old at the
time of the administrative hearing. She has degrees in psychology and sociology from
Southeastern Oklahoma State University and past relevant work as a mental retardation
aide, fast food worker, teacher’s aide, and caseworker (Tr. 18, 25-26). The claimant
alleges she has been unable to work since July 15, 2005, because of depression disorder,
anxiety, post-traumatic stress disorder, chronic malfunction of the kidney, pain in kidney
and pelvis area, and numbness in the left leg (Tr. 142).
Procedural History
On September 14, 2007, the claimant applied for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and supplemental
security income payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 138185. Her applications were denied. ALJ Michael Kirkpatrick conducted an administrative
hearing and determined the claimant was not disabled in a decision dated October 6,
2009.
The Appeals Council denied review, so the ALJ’s decision represents the
Commissioner’s final decision for purposes of this appeal. See 20 C.F.R. §§ 404.981,
416.1481.
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Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant had severe impairments (uretral reflux, obesity, depression, anxiety, and
post-traumatic stress disorder) but retained the retained the residual functional capacity
(“RFC”) to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b), i. e.,
she could lift/carry/push/pull ten pounds frequently and twenty pounds occasionally,
stand/walk/sit for six hours in an eight-hour workday, but perform only simple, unskilled
tasks with routine supervision which do not require interaction with the general public
(Tr. 14). The ALJ concluded that although the claimant could not return to her past
relevant work, she was nevertheless not disabled because there was other work she could
perform in the national economy, i. e., housekeeping cleaner, bakery racker (food
production industry), and hand bender or bagger. (Tr. 18-19).
Review
The claimant contends that the ALJ erred in his finding that she could interact with
supervisors and co-workers on a limited basis and have limited contact with the public.
As part of this argument, the claimant argues that the ALJ failed to properly analyze her
credibility. The Court agrees, and the decision of the Commissioner must be reversed.
In December 2002, the claimant underwent a hysterectomy during which the distal
left ureter was inadvertently clipped or caught with a suture. As a result, the claimant
was forced to endure a left ureteroneocystostomy on April 1, 2003, followed by several
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subsequent procedures, in order to repair the damage (Tr. 336).
Following this
procedure, the claimant was admitted to the Medical Center of Southeastern Oklahoma
on August 20, 2003 because of complaints of low back pain that progressively worsened
and was exacerbated with urination to the point that claimant felt like she was going to
pass out (Tr. 213). The claimant was noted to be experiencing left uretral reflux before
and after voiding by the University of Oklahoma Medical Center in August 2004 (Tr.
343). On May 18, 2005, Dr. Victoria Pardue of Choctaw Memorial Hospital noted that
claimant “had been admitted to the hospital on numerous occasions with urinary tract
infections” (Tr. 234). The claimant was hospitalized again for two days on November
14, 2005 because of hematuria, intractable nausea, and a urinary tract infection (Tr. 248).
She was hospitalized yet again from March 27, 2006 through March 31, 2006 for urinary
tract infection, hematuria, cardiac dysrhythmia, nausea, and anxiety and she was noted to
be in “excruciating pain” (Tr. 264).
There are numerous notations in the medical
evidence regarding complaints of flank pain (370, 371, 377, 382, 398, 452, 454, 464, 465,
470, 530) and recurring urinary tract infections (Tr. 452, 465, 485, 486, 580, 581).
In November 2006, the claimant began receiving mental health treatment at Carl
Albert Community Mental Health Center (Tr. 655).
The diagnostic impression at that
time was post-traumatic stress disorder, which resulted from her botched hysterectomy
(Tr. 654). She reported frequent nightmares, symptoms of depression for at least three
years, racing thoughts, and difficulty dealing with stress and anxiety (Tr. 647). During a
visit to her therapist in February 2007, the claimant reported daily pain ranging from 7 to
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10 on a ten-point scale, daily crying spells, and difficulty remembering things and
concentrating (Tr. 636). The claimant reported in December 2006 that her “daily pain
makes it hard to go around others . . . [and] she has some days she just stays in bed and
cries due to pain and other days just stays in bed because she is so depressed” (Tr. 624).
In October 2007, the claimant reported that her anxiety level was high due to health
problems and her impending visit with a kidney specialist (Tr. 599). On June 6, 2008, the
claimant presented at a counseling session exhibiting a flat affect and sad mood and was
in tears for most of the session (Tr. 705), but two weeks later reported having more good
days than bad days (Tr. 704). The claimant was prescribed Paxil, Trazadone, and Xanax
to deal with her mental health-related symptoms (Tr. 707).
On November 6, 2007, state reviewing physician Dr. Sally Varghese, M.D.
completed a Psychiatric Review Technique (PRT). Dr. Varghese found that claimant
suffered from: (i) depressive syndrome characterized by anhedonia or pervasive loss of
interest in almost all activities, sleep disturbance, decreased energy, and difficulty
concentrating or thinking; and (ii) post-traumatic stress disorder (Tr. 665-67).
Dr.
Varghese further found that claimant had moderate limitations in activities of daily
living, maintaining social functioning, and maintaining concentration, persistence, or
pace (Tr. 672). Finally, Dr. Varghese determined that claimant was markedly limited in
her ability to understand and remember detailed instructions, ability to carry out detailed
instructions, and ability to interact with the general public (Tr. 676-77).
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Dr. Shafeek Sanbar, M.D. also reviewed claimant’s medical records and
completed a Physical Residual Functional Capacity Assessment form on November 8,
2007 (Tr. 680-87).
Dr. Sanbar found that claimant had the physical capacity to
occasionally lift/carry 20 pounds, frequently lift/carry 10 pounds, stand and/or walk and
sit for 6 hours in an 8-hour work day (Tr. 681).
The claimant testified at the administrative hearing that she experiences ureter
reflux on a daily basis that causes her to occasionally pass out due to pain (Tr. 29-30).
She stated that when she has an episode, it will usually last for around two hours during
which time she will “try to find a comfortable position to stay and not move around too
much” in case she passes out (Tr. 30). The claimant takes Lortab for pain, which helps
only when the pain is not excessive (Tr. 30-31). The claimant testified that she has
chronic urinary tract infections which make her nauseous and for which she is constantly
on antibiotics (Tr. 32). The claimant stated that she only sees her physician “about every
six months” because she does not have insurance (Tr. 32). The claimant testified that
following her hysterectomy, she worked for Kiamichi Council but was let go due to
excessive medical absences (Tr. 34). The claimant testified that she takes Minipress to
deal with frequent nightmares, Vistaril to help her sleep, Effexor for depression, Buspar
for anxiety, and Xanax for stress (Tr. 35). Even with the medications that she is taking,
the claimant testified that she only sleeps about two hours at a time and that there are
days that she goes without sleeping at all (Tr. 36-37). The claimant testified that she is
only able to stand up for about 15-30 minutes because of pressure that builds up in her
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kidney, sit up for about 15-30 minutes because of numbness that develops in her left side
(resulting from the nephrostomy tubes that were placed in her left kidney), and that she
was limited to lifting no more than five pounds by Dr. Williams of OU Medical (Tr. 39).
She stated that if she does too much cleaning, then she “down for about seven to ten days
where [she’s] just in pain” (Tr. 41). The claimant obtained a $150,000 settlement for a
medical malpractice lawsuit against her doctor related to the botched hysterectomy,
which she used to buy a house and pay off her car (Tr. 43).
The claimant contends that the ALJ erred, inter alia, by failing to properly analyze
her credibility. Deference must be given to an ALJ’s credibility determination unless he
misreads the medical evidence taken as a whole. Casias v. Secretary of Health & Human
Services, 933 F.2d 799, 801 (10th Cir. 1991). And he ALJ may disregard subjective
complaints of pain if unsupported by any clinical findings. Frey v. Bowen, 816 F.2d 508,
515 (10th Cir. 1987). But credibility findings “should be closely and affirmatively linked
to substantial evidence and not just a conclusion in the guise of findings.” Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995) [quotation omitted]. A credibility analysis
“must contain ‘specific reasons’ for a credibility finding; the ALJ may not simply ‘recite
the factors that are described in the regulations.’” Hardman v. Barnhart, 362 F.3d 676,
678 (10th Cir. 2004), quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *4.
The first problem with the credibility analysis here is that it contains language
suggesting that the ALJ judged the credibility of the claimant’s testimony by comparing
it to an already-determined RFC: “[T]he claimant’s statements at her hearing concerning
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the intensity, persistence and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above residual functional capacity assessment” (Tr.
15). If the ALJ did in fact judge the claimant’s credibility by its consistency with the
RFC, this would clearly be error; the ALJ must first evaluate the claimant’s testimony
(along with all the other evidence) and then formulate an appropriate RFC, not the other
way around. The Commissioner has lately employed such language in a number of
opinions, and the Court finds it troublesome even where the ALJ discusses evidence
appropriately bearing on the claimant’s credibility.
Compounding the error here is that the ALJ apparently discredited the claimant’s
testimony based on a series of speculative statements that are not supported by the record.
For instance, the ALJ faulted the claimant for how she spent some settlement money and
inferred she was not as limited as she claimed because she did not “use some of the
windfall for appointments with her treating physician” (Tr. 16). The ALJ also supported
his credibility findings by speculating that the claimant’s pain was not as debilitating as
she claimed because she was not referred to a free clinic as she was for hypertension (Tr.
16). Finally, the ALJ found the claimant was not credible because “[i]t seems unlikely
that claimant’s treating physicians or her family would allow her to live by herself while
faced with a daily occurrence of passing out from pain” (Tr. 16).
None of these
inferences are in any way supported by the record; in fact, the assertion that the claimant
lives alone is actually contradicted by the record, as she actually lives with her teenage
son (Tr. 41). Furthermore, the ALJ stated that the “[c]laimant was fired for excessive
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absences . . . not for her inability to function while at work” (Tr. 17). But letters from
Kiamichi Council on Alcoholism and Drug Abuse, the claimant’s last employer, make it
clear the claimant was unable to work because of medical problems that caused excessive
absences; in the January 28, 2003 letter, Executive Director Dorthea Whitten wrote: “It is
with great regret that Kiamichi Council must end your employment due to you not being
able to be at work because of complications of your illness.” (Tr. 771).
Claimant
apparently returned to work for Kiamichi Council, because Ms. Whitten wrote a second
letter dated March 27, 2003 to claimant, again terminating her employment for excessive
absences (Tr. 770). Ms. Whitten went on to write: “We at Kiamichi Council view you as
a personal and professional friend and wish you the very best for the future as we are all
praying for your fast and healthful recovery from your illnesses” again making it clear
that it was claimant’s medical problems that prevented her from being able to attend work
on a regular basis (Tr. 770) [emphasis added]. Thus, a great deal of the ALJ’s statements
regarding claimant’s credibility (or lack thereof) is either unsupported or contradicted by
the record, which necessitates reversal. Bakalarski v. Apfel, 1997 WL 748653, at *3
(10th Cir. Dec. 3, 1997) (“Because a credibility assessment requires consideration of all
the factors ‘in combination,’ when several of the factors relied upon by the ALJ are found
to be unsupported or contradicted by the record, we are precluded from weighing the
remaining factors to determine whether they, in themselves, are sufficient to support the
credibility determination.”) [citation omitted].
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Because the ALJ failed to properly analyze the claimant’s credibility, the decision
of the Commissioner must be reversed and the case remanded to the ALJ for a proper
credibility analysis. If such analysis results in any adjustments to the claimant’s RFC, the
ALJ should re-determine what work the claimant can perform, if any, and ultimately
whether she is disabled.
Conclusion
In summary, the Court finds that correct legal standards were not applied by the
ALJ, and the decision of the Commissioner is therefore not supported by substantial
evidence. Accordingly, the decision of the Commissioner is hereby REVERSED and the
case is REMANDED for further proceedings consistent herewith.
DATED this 30th day of September, 2011.
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