Mooney 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
MICHAEL W. MOONEY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
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Case No. CIV-10-185-SPS
OPINION AND ORDER
The claimant Michael W. Mooney requests judicial review of a denial of benefits
by the Commissioner of the Social Security Administration pursuant to 42 U.S.C. §
405(g). He appeals the Commissioner’s decision and that asserts the Administrative Law
Judge (“ALJ”) erred in determining that he 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 he is not engaged in substantial gainful
activity. Step two requires the claimant to establish that he has a medically severe impairment (or
combination of impairments) that significantly limits his ability to do basic work activities. If the
claimant is engaged in substantial gainful activity, or his impairment is not medically severe,
disability benefits are denied. If he 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, he is disabled and awarded benefits without
further inquiry. Otherwise, the evaluation proceeds to step four, where the claimant must show
that he lacks the residual functional capacity (RFC) to return to his 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 his age, education, work experience and RFC.
Disability benefits are denied if the claimant can return to any of his past relevant work or if his
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 August 14, 1960, and was forty-eight years old at the
time of the administrative hearing (Tr. 599). He has a high school education, served in
the National Guard from March 1985 through March 1993 (Tr. 110) and has past relevant
work as a road grader, sign installer, delivery driver, and building maintenance worker
(Tr. 28). The claimant alleges that he has been unable to work since February 15, 2002
because of severe depression, anxiety, neuropathy, asthma, and arthritis (Tr. 129-30).
Procedural History
The claimant first applied on October 25, 2005 for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental
security income payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 138185. His applications were denied. ALJ Gene M. Kelly determined that the claimant was
not disabled in a written opinion dated February 13, 2008. The Appeals Council granted
review and remanded the case to the ALJ with specific instructions: (i) to further consider
and properly analyze the opinion evidence of record; (ii) to further consider and explain
the claimant’s maximum residual functional capacity (“RFC”); (iii) to obtain evidence
from a vocational expert once the maximum RFC was established; and (iv) to address the
Adult Function Report submitted by the claimant’s mother. Upon remand, the ALJ again
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determined that the claimant was not disabled in a written decision dated July 21, 2009
(Tr. 18-30). This time the Appeals Council denied review, so the ALJ’s July 21, 2009
opinion is the final decision of the Commissioner for purposes of appeal. See 20 C.F.R.
§§ 404.981 416.1481.
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 (neuropathy, shortness of breath, hypertension,
stomach problems, headaches, legs, vision, shoulder, hearing, hip, back, knees, diabetes
mellitus, depression, anxiety, organic mental disorder, and substance abuse) but retained
the RFC to perform a limited range of light work, i. e., he could lift/carry up to twenty
pounds, and stand/walk up to six hours in an eight-hour day at one hour intervals; he was
slightly limited in his ability to bend, stoop, and squat, but could occasionally climb,
crouch, crawl, kneel and twist his torso; he should avoid dust, fumes, and gases, activities
which require fine vision, rough uneven surfaces, unprotected heights and fast, dangerous
machinery and needed easy accessibility to restrooms; and, he was slightly limited in his
ability have contact with the general public, co-workers, and supervisors (Tr. 22). The
ALJ found that although the claimant could not return to any past relevant work, he was
nevertheless not disabled because there were other jobs he could perform in the national
economy, i. e., laundry classifier, officer helper (unskilled, light exertion), and addresser
(unskilled, sedentary exertion) (Tr. 29).
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Review
The claimant contends that the ALJ erred: (i) by failing to properly evaluate the
opinion evidence regarding his mental health limitations; and (ii) by failing to properly
analyze the third party function report submitted by his mother. The undersigned finds
that the ALJ did fail to properly analyze the opinion evidence of record.
Dr. Donna Noland, Ph.D. performed a consultative examination of claimant on
November 17, 2005 at the request of the Social Security Administration. During the
course of the evaluation, Dr. Noland noted that the claimant’s problems began after the
failure of claimant’s fourth marriage, did not want to go out to see anyone socially, and
experienced “problems with losing his thoughts in the middle of a sentence and
depression” (Tr. 200). The claimant reported living at home with his parents and that his
family and two male friends were his source of social support (Tr. 201). Dr. Noland
administered a Mental Status Exam, the Wechsler Adult Intelligence Scale – Third
Edition (WAIS-III) and conducted a review of the medical records to render an opinion
regarding the severity of claimant’s mental health impairments (Tr. 200). Dr. Noland
ultimately concluded that claimant’s IQ was average, he showed “significant limitations
in work and health,” and he showed an adequate ability to understand, remember and
carry out instructions (Tr. 204). Further, Dr. Noland noted her diagnostic impression that
claimant suffered from major depression which was recurrent, severe, but without
psychotic features, social anxiety disorder, and she assigned to claimant a GAF score of
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43 (Tr. 205).
Finally, Dr. Noland wrote that claimant’s “[p]hysical problems and
emotional issues will interfere with his ability to keep employment.” (Tr. 206).
State reviewing physician Dr. Burnard Pearce, Ph.D. completed a Psychiatric
Review Technique on January 4, 2006, in which he found that claimant suffered from
affective disorders, i. e., depression, and anxiety (Tr. 214, 217, 219). Dr. Pearce further
found that claimant was mildly limited in his activities of daily living but moderately
limited in his ability to maintain social functioning and maintain concentration,
persistence, and pace (Tr. 224). He also completed a Mental RFC Assessment in which
he found that claimant would be markedly limited in his ability to understand and
remember detailed instructions, his ability to carry out detailed instructions, and his
ability to interact appropriately with the general public (Tr. 227-28).
Claimant’s treating source, Keith Keplinger, M.S., L.P.C., Behavioral Health
Clinician, submitted a letter related to his treatment of claimant at the Muscogee (Creek)
Nation Behavioral Health Services (Tr. 483-84). Mr. Keplinger wrote that claimant
began receiving treatment with his clinic in May 2006 and receives individual counseling
and medication management to treat his depressive disorder, mood disorder, and anxiety
disorder (Tr. 483). In addition, Mr. Keplinger stated that claimant has “displayed a range
of impairment from moderate to severe[,]” good days are atypical, and claimant’s
symptoms “have appeared to have led him to extended periods of isolation, a very low
energy level, transient interval insomnia, disturbances in appetite, crying spells, poor
concentration, family discord, inability to interact socially with others outside of the
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home, and a certain degree of apathy as to whether he lives or dies” (Tr. 483). Finally,
Mr. Keplinger opined that claimant’s symptoms “appear to make it very difficult, if not
impossible, for him to manage more than the basic activities of daily living” (Tr. 484).
Mr. Keplinger also completed a Mental Impairment Questionnaire on April 22,
2009, in which he identified claimant’s signs and symptoms to consist of poor memory,
sleep disturbance, mood disturbance, emotional liability, anhedonia or pervasive loss of
interests, psychomotor agitation or retardation, paranoia or inappropriate suspiciousness,
feelings of guilt/worthlessness, difficulty thinking or concentrating, suicidal ideation or
attempts, oddities of thought, perception, speech or behavior, social withdrawal or
isolation, blunt, flat or inappropriate affect, decreased energy, manic syndrome,
generalized persistent anxiety, and hostility and irritability (Tr. 576). He wrote that
claimant was compliant with counseling, and that although claimant was “relatively
stable,” Mr. Keplinger anticipated that claimant would miss work more than three times
per month (Tr. 577). With regard to claimant’s functional limitations related to his
mental health impairments, Mr. Keplinger opined that claimant suffered from marked
restrictions in his activities of daily living, extreme restrictions in his ability to maintain
social functioning, frequent limitations in concentration, persistence, or pace resulting in
a failure to complete tasks in a timely manner, and would experience continual episodes
of deterioration or decompensation in work or work-like settings which cause the
individual to withdraw from that situation or to experience exacerbation of signs and
symptoms (Tr. 578).
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On December 18, 2007, Dr. John W. Hickman, Ph.D. performed another
consultative examination of claimant. At that time, claimant reported difficulty with
depression which had been unresponsive to medication, and that he has had problems
with his memory ever since an assault that rendered him unconscious for three hours and
required reconstructive surgery of the right side of his face (Tr. 485). The claimant was
given a Mental Status Exam, where it was noted that he had a blunt affect with a
depressed and anxious mood, and the claimant reported that he feels helpless and
hopeless, becomes irritable sometimes, has trouble sleeping, experiences racing thoughts,
and obsessive ideation about his life (Tr. 487). Dr. Hickman also administered, inter
alia, the WAIS-III, the Wide Range Achievement Test – Third Edition, Wechsler
Memory Scale-Third Edition, Beck Depression Inventory, and the Minnesota Multiphasic
Personality Intentory-2 (Tr. 486). Ultimately, Dr. Hickman’s conclusions were that
claimant suffered from mood, anxiety, and math disorder, exhibited features of a
histrionic personality disorder, and marked psychosocial stress from financial concerns
and social isolation, and assigned to claimant a GAF score of 60 (Tr. 490). Dr. Hickman
then completed a Mental RFC Assessment and found claimant to be moderately limited
in his ability to understand and remember detailed instructions, ability to carry out
detailed instructions, and ability to sustain an ordinary routine without special supervision
(Tr. 491-92)
The ALJ gave little weight to Mr. Keplinger’s opinion about the severity of the
claimant’s limitations because it was “not supported by any psychological testing and is
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based solely on the claimant’s subjective complaints” (Tr. 24). This is an insufficient
basis for discounting such “other source” evidence. First, in rejecting Mr. Keplinger’s
opinion on that basis, the ALJ ignores that psychological opinions need not be based on
objective findings. Wise v. Barnhart, 129 Fed. Appx. 443, 447 (10th Cir. 2005) (“[A]
psychological opinion does not need to be based on ‘tests;’ those findings can be based
on ‘observed signs and symptoms.’
Dr. Houston’s observations of Ms. Wise do
constitute specific medical findings.”), citing Robinson v. Barnhart, 366 F.3d 1078, 1083
(10th Cir. 2004), citing 20 C.F.R. subpt. P, app. 1 § 12.00(B).
Second, there is no indication that the ALJ properly weighed Mr. Keplinger’s
opinion in accordance with the factors set out in 20 C.F.R. § 416.927(d). See Soc. Sec.
Ruling 06-03p, 2006 WL 2329939. See also Frantz v. Astrue, 509 F.3d 1299, 1302 (10th
Cir. 2007) (noting that Soc. Sec. Rul. 06-03p “specifies that the factors for weighing the
opinions of acceptable medical sources set out in 20 C.F.R. § 404.1527(d) and §
416.927(d) apply equally to all opinions from medical sources who are not ‘acceptable
medical sources’ as well as from ‘other sources’ [and] instructs the adjudicator to explain
the weight given to opinions from these ‘other sources,’ or otherwise ensure that the
discussion . . . allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case.”) [internal
quotations omitted]. Those factors are: (i) length of the treatment relationship and the
frequency of examination; (ii) nature and extent of the treatment relationship, including
the treatment provided and the kind of examination or testing performed; (iii) degree to
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which the opinion is supported by relevant evidence; (iv) consistency between the
opinion and the record as a whole; (v) whether or not the source 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. 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 mentioned the length of the relationship and the frequency of
examination, but applied none of the other factors in determining the weight he assigned
to Mr. Keplinger’s opinion.
It is worth noting here that the ALJ failed to adhere in any meaningful way to the
instructions of the Appeals Council in the initial remand. The Appeals Council directed
the ALJ, inter alia, to “[g]ive further consideration to the treating and nontreating source
opinion pursuant to the provisions of 20 CFR 404.1527 and 416.927 and Social Security
Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence.” But
the ALJ’s discussion of these opinions was essentially the same as his discussion in the
initial opinion, i. e., the ALJ failed in large part to discuss the weight he was assigning to
these opinions. The ALJ also failed to even mention the opinion specifically noted by the
Appeals Council, i. e., the opinion of Dr. J. Salmon, O.D., Ph.D. that claimant was not to
look left and should turn his head instead, or to clarify his fine vision limitation in the
claimant’s RFC as instructed by the Appeals Council (Tr. 44). Furthermore, the Appeals
Council instructed the ALJ to address the third party testimony of the claimant’s mother
Evelyn Mooney, who submitted an adult third party function report on his behalf (Tr. 44,
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160-68). The ALJ failed to follow this instruction as well. See Soc. Sec. Rul. 06-03p,
2006 WL 2329939, at *6. (identifying the following factors to apply when evaluating
other source opinion evidence from spouses, parents, friends, and neighbors: i) nature and
extent of the relationship; ii) whether the evidence is consistent with other evidence; and
iii) any other factors that tend to support or refute the evidence).
Because the ALJ failed to properly analyze “other source” evidence in the case,
the decision of the Commissioner must be reversed and the case remanded for proper
analysis by the ALJ. On remand, the ALJ should properly re-evaluate the opinion of Mr.
Keplinger and any other evidence the Appeals Council instructed him to consider further
in the first remand. If such analysis results in any changes to the claimant’s RFC, the
ALJ should re-determine the work he can perform and ultimately whether he is disabled.
Conclusion
In summary, the Court finds that correct 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 hereby REVERSED, and the case is REMANDED
for further proceedings consistent herewith.
DATED this 30th day of September, 2011.
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