Batcheller v. Social Security Administration

Filing 20

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
THERESA BATCHELLER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

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Case No. CIV-10-162-SPS

OPINION AND ORDER
The claimant Theresa Batcheller requests judicial review of a denial of benefits by
the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g).
She appeals the Commissioner’s decision 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
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “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). See also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he

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Step one requires the claimant to establish that she is not engaged in substantial gainful
activity. 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. If
the claimant is engaged in substantial gainful activity, or her impairment is not medically severe,
disability benefits are denied. If she does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, she is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that she lacks the residual functional capacity (RFC) to return to her past
relevant work. At step five, the burden shifts to the Commissioner to show there is significant
work in the national economy that the claimant can perform, given her age, education, work
experience and RFC. Disability benefits are denied if the claimant can return to any of her past
relevant work or if her RFC does not preclude alternative work. See generally Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

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substantiality of the 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 November 28, 1966, and was forty-two years old at the
time of the supplemental administrative hearing (Tr. 20). She has past relevant work as
movie theater assistant manager, general office worker, and office manager (Tr. 14). The
claimant alleges she has been unable to work since October 4, 2005 due to panic attacks,
depression, bipolar disorder, anxiety, phlebitis in her right leg, and insomnia (Tr. 149).
Procedural History
The claimant applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, and also for supplemental security income payments
under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her applications were
denied. ALJ Osly F. Deramus conducted an administrative hearing and determined that
the claimant was not disabled in a written opinion dated October 27, 2009. The Appeals
Council denied review, so the ALJ’s opinion is the final decision of the Commissioner
for purposes of this appeal. See 20 C.F.R. §§ 404.981, 416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step four of the sequential evaluation. He found that
although the claimant’s depression and anxiety were severe impairments, she retained the
residual functional capacity (RFC) to perform medium work, limited to understanding,
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remembering and carrying out simple and some complex tasks, interacting appropriately
with supervisors, coworkers and the general public, and responding appropriately to
changes in a work setting (Tr. 11). The ALJ concluded that the claimant was not disabled
because she could return to her past relevant work as a movie theater assistant manager,
general office clerk, and office manager (Tr. 14).
Review
The claimant contends that the ALJ erred: (i) by failing to properly consider the
opinions of her treating physician Dr. Saleh Parvez, M.D. and consultative psychologist
Dr. Denise LaGrand, Ph.D.; and, (ii) by failing to properly assess her RFC. Because the
ALJ did fail to properly analyze those opinions, the decision of the Commissioner must
be reversed and the case remanded for proper analysis.
The claimant began receiving treatment at Carl Albert Community Health Center
in April 2006. Her initial psychosocial evaluation reveals that she had “been feeling very
depressed, tearful, anxious” and had been molested by an uncle when she was five (Tr.
266). The claimant was assigned a score of 45 for her global assessment of functioning
(GAF), and the diagnostic impression was attention deficit hyperactivity disorder and
dysthymia disorder (Tr. 268).
Dr. Parvez of CACHC completed two medical source statements styled “Mental
Source Opinion of Ability to do Work-Related Activities.” The first was completed on
July 11, 2007. Dr. Parvez noted that the claimant suffered from moderate limitations in
her ability to accept instructions and criticism from supervisors and ability to work with
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others without causing distractions, and marked limitations in her ability to interact
appropriately with the public (Tr. 276-77). Dr. Parvez also opined that she suffered from
extreme limitations in the other areas: (i) ability to understand and remember detailed
instructions; (ii) ability to maintain attention and concentration for extended periods in
order to perform simple tasks; (iii) ability to maintain attention and concentration for
extended periods in order to perform detailed tasks; (iv) ability to adhere to a schedule
and maintain regular attendance; (v) ability to work close to others without distraction;
(vi) ability to perform at a consistent pace without an unreasonable number or length of
rest periods; (vii) ability to handle normal work stress; and, (viii) ability to maintain
socially appropriate behavior and basic standards of neatness and cleanliness (Tr. 27677). Dr. Parvez found that the claimant’s signs and symptoms consisted of memory
difficulties, sleep disturbance, social withdrawal or isolation, blunt, flat, or inappropriate
affect, manic episodes, feelings of guilt or worthlessness, generalized persistent anxiety,
personality change, mood disturbance, emotional lability, decreased energy, anhedonia or
pervasive loss of interests, difficulty concentrating or thinking, and hostility or irritability
(Tr. 278).
The second medical source statement prepared by Dr. Parvez was dated March 14,
2008. He noted that the claimant suffered from moderate limitations in her ability to
adhere to a schedule and maintain regular attendance and her ability to work with others
without causing distractions (Tr. 300-01). Dr. Parvez found marked limitations related to
the claimant’s ability to understand and remember simple instructions, ability to maintain
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attention and concentration for extended periods in order to perform simple tasks, ability
to work close to others without being distracted, ability to perform at a consistent pace
without an unreasonable number or length of rest periods, ability to interact appropriately
with the public, and ability to accept instructions and criticism from supervisors (Tr. 30001). Dr. Parvez also opined that the claimant had extreme limitations in the following
areas: (i) ability to understand and remember detailed instructions; (ii) ability to maintain
attention and concentration for extended periods in order to perform detailed tasks; and
(iii) ability handle normal work stress (Tr. 300-01). Dr. Parvez found at that time that the
claimant’s signs and symptoms consisted of memory difficulties, sleep disturbance, social
withdrawal or isolation, blunt, flat, or inappropriate affect, manic episodes, obsessions or
compulsions, feelings of guilt or worthlessness, persistent irrational fears, generalized
persistent anxiety, mood disturbance, emotional lability, panic attacks, difficulty
concentrating or thinking, hostility or irritability, and intrusive thoughts of traumatic
events (Tr. 302).
The ALJ assigned little weight to Dr. Parvez’s opinions because his later medical
source statement “had significantly different (less) limitations” than his earlier one. The
ALJ also observed that the second medical source statement recorded persistent irrational
fears and intrusive thoughts, which he speculated “would very likely adversely impact an
individual’s abilities” (Tr. 13). It is not entirely clear what the ALJ meant in this regard,
but it appears that he thought that the second medical source statement was inconsistent

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with the first one and that as a result, neither was worthy of credence. But in any event,
the ALJ failed to properly analyze Dr. Parvez’s opinion about the claimant’s limitations.
The ALJ acknowledged that Dr. Parvez qualified as a treating physician because
he had been treating the claimant since 2006. An opinion from a treating physician is
entitled to controlling weight if “‘the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques . . . [and] consistent with other substantial
evidence in the record.’” Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004),
quoting Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). However, “[e]ven if
a treating physician’s opinion is not entitled to controlling weight, ‘[t]reating source
medical opinions are still entitled to deference and must be weighed using all of the
factors provided in [§] 404.1527.’” Id., quoting Watkins, 350 F.3d at 1300, quoting Soc.
Sec. Rul. 96-2p, 1996 WL 374188, at *4. The pertinent factors include the following: (i)
the length of the treatment relationship and the frequency of examination; (ii) the nature
and extent of the treatment relationship, including the treatment provided and the kind of
examination or testing performed; (iii) the degree to which the physician’s opinion is
supported by relevant evidence; (iv) consistency between the opinion and the record as a
whole; (v) whether or not the physician is a specialist in the area upon which an opinion
is rendered; and (vi) other factors brought to the ALJ’s attention which tend to support or
contradict the opinion. See Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir.
2003), citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001). The ALJ did
not provide any such analysis of Dr. Parvez’s opinion.
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The ALJ also failed to properly analyze the opinion of Dr. LaGrand regarding the
claimant’s limitations. To begin with, the ALJ again failed to evaluate the proper weight
to give Dr. LaGrand’s opinion under Watkins. See, e. g., 20 C.F.R. § 404.1527(d)
(“Regardless of its source, we will evaluate every medical opinion we receive. Unless we
give a treating source’s opinion controlling weight under paragraph (d)(2) of this section,
we consider all of the following factors in deciding the weight we give to any medical
opinion.”). See also 20 C.F.R. § 416.927(d). But unlike the opinion from Dr. Parvez, the
ALJ did not criticize Dr. LaGrand’s opinion for inconsistency or otherwise; he noted only
that she “found that the claimant had no more than moderate limitations in any area” (Tr.
14), and concluded “there is no evidence that despite [the claimant’s] impairments and
resultant limitations that she is unable to engage in any and all forms of substantial
gainful activity.” (Tr. 14).

But the ALJ neglected to mention that according to the

testimony of the vocational expert, those moderate mental limitations imposed upon the
claimant by Dr. LaGrand would preclude all work of any kind (Tr. 26-7). This evidence
contradicted not only the ALJ’s above-quoted conclusion, but also his ultimate
determination that she was not disabled. Thus, the ALJ should at least have identified the
evidence he rejected, i. e., Dr. LaGrand’s opinion about the claimant’s mental limitations
or the testimony of the vocational expert that a person with such limitations could not
perform any work. See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1239 (10th
Cir. 2001) (“Although the ALJ need not discuss all of the evidence in the record, he may
not ignore evidence that does not support his decision, especially when that evidence is
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‘significantly probative.’”). See also Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir.
1996) (“[I]n addition to discussing evidence supporting his decision, the ALJ also must
discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.”).
Because the ALJ failed to properly analyze the opinion evidence from physicians,
the decision of the Commissioner must be reversed and the case remanded to the ALJ for
proper analysis. If such analysis results in any adjustments to the claimant’s RFC, the
ALJ should re-determine what work she can perform, if any, and ultimately whether she
is disabled.
Conclusion
In summary, The Court finds that incorrect legal standards were not applied by the
ALJ, and the Commissioner’s decision is therefore not supported by substantial evidence.
The decision of the Commissioner is accordingly hereby REVERSED and the case is
REMANDED for further proceedings consistent herewith.
DATED this 29th day of September, 2011.

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