Bailey 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
MARY C. BAILEY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
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Case No. CIV-10-227-SPS
OPINION AND ORDER
The claimant Mary C. Bailey requests review of the decision of the Commissioner
of the Social Security Administration denying her application for benefits under the
Social Security Act pursuant to 42 U.S.C. § 405(g) . The claimant appeals the decision of
the Commissioner and contends that the Administrative Law Judge (“ALJ”) committed
error 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 determined 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 September 16, 1959, and was fifty years old at the time
of the administrative hearing. She has a GED, certification as a medication aide (Tr. 28)
and past relevant work as a care giver and medication aide (Tr. 14). The claimant initially
claimed inability to work since August 1, 2007, but her onset date was amended to March
16, 2009 at the administrative hearing (Tr. 22). The claimant alleges that she is unable to
work because of heart problems and severe depression (Tr. 93).
Procedural History
On February 27, 2008, the claimant applied for supplemental security income
payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her
application was denied. ALJ Norman R. Buls conducted a hearing and determined that
the claimant was not disabled in a decision dated January 22, 2010. 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. § 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 (depressive disorder, osteoarthritis, and obesity) but
retained the residual functional capacity (“RFC”) to perform a range of light work, i. e.,
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she could lift/carry up to ten pounds frequently (twenty pounds occasionally), and stand/
walk/sit for six hours in an eight-hour work day, but should avoid bending, stooping and
squatting, unprotected heights, and exposure to moving machinery (Tr. 10, 12). The ALJ
concluded that although the claimant could not return to any past relevant work, she was
nevertheless not disabled according to the Medical Vocation Guidelines, 20 C.F.R. Pt.
404, Subpt. P, App. 2 (the “grids”), specifically Medical Vocational Rule 202.21 (Tr. 15).
Review
The claimant contends the ALJ erred: (i) by failing to properly assess her RFC; (ii)
by determining that she was disabled by conclusive application of the grids; and, (iii) by
failing to properly analyze medical evidence, e. g., treatment notes from psychologist Dr.
Cornelius Cuza, Ph.D. The undersigned finds the claimant’s contentions persuasive.
The medical evidence reveals that claimant has suffered from depression since at
least July 6, 2007 (Tr. 181). At that time, the claimant was noted to be crying with a
dissonant affect and “anger just below [the] surface” (Tr. 181). Less than a month later,
claimant’s depression was not resolving despite the claimant’s medication (Tr. 180), and
her depression was noted in January and February 2008 to be “agitated” (Tr. 173-74).
The claimant underwent a consultative examination by state psychologist Dr. C. Valette,
Ph.D. on May 17, 2008 (Tr. 192-93). At that time, Dr. Valette noted that claimant
reported suffering from depression for “a long time,” and presented as irritable (Tr. 192).
Because of Dr. Valette’s observations of claimant’s appearance, i. e., highlighted hair,
painted fingernails, and suntanned skin, Dr. Valette wrote that she “seemed to exaggerate
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her symptoms” (Tr. 193). Dr. Valette also found that claimant’s thought processes were
logical and her focus was adequate (Tr. 193). The claimant’s GAF was assessed to be 70,
and Dr. Valette remarked that it was “highly likely that there are no mental restrictions
regarding this claimant” (Tr. 193).
On October 22, 2008, the claimant presented to Imperial County Behavioral
Health as a result of a suicide attempt “by excessive ingestion of medications” (Tr. 248).
During this initial consultation, she was evaluated by Florentino Olivas, ACSW-PSW II
and Cornelius Cuza, Ph.D., who noted that claimant displayed a dysphoric/irritable mood,
sad affect, crying spells, slouched posture and self-defeating thoughts (Tr. 248). Dr.
Cuza also noted that claimant was extremely impaired in activities of daily living (low
motivation, crying spells, and depressed mood), social function (isolative an disconnected
from friends and family), and concentration, persistence and pace (blank spells,
indecisiveness, and memory problems), and it was similarly noted that claimant lack
motivation to leave her home (Tr. 249-50). Her GAF was assessed at 50 and her
prognosis listed as fair (Tr. 254).
The ALJ specifically found at step two that the claimant’s depression was a severe
impairment. He did not, however, include any mental limitations in the claimant’s RFC,
despite also finding that she had mild difficulties with concentration, persistence or pace
and moderate difficulties with social functioning (Tr. 10-11).
A severe impairment at step two is one that “significantly limits [the claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Thus,
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when an ALJ finds an impairment to be severe at step two, he must thereafter account for
it by including corresponding limitations in the claimant’s RFC at step four or explaining
how the impairment became so insignificant that no limitations were required. See, e. g.,
Timmons v. Barnhart, 118 Fed. Appx. 349, 353 (10th Cir. 2004) (“At the very least, the
ALJ should have explained how a ‘severe’ impairment at step two became insignificant
at step five.”). In this case, the ALJ recited findings by state agency consultant Dr.
Valette and concluded by saying that “[i]n terms of the claimant’s depression, it does not
appear to significantly affect her daily activities or mental functioning.” (Tr. 13).
The apparent inconsistency between this latter conclusion by the ALJ and his step
two determination that the claimant’s depression was severe is well worth noting here.
See Timmons, 118 Fed. Appx. at 353 (“The second problem with [the ALJ’s] decision
arises because this finding of severity appears inconsistent with his conclusion that the
eye impairment would pose only an ‘insignificant’ effect on his ability to do the full
range of sedentary work.”). See also Baker v. Barnhart, 84 Fed. Appx. 10, 13 (10th Cir.
2003) (“The ALJ's step-two finding makes it impossible to conclude at step four that her
pain was insignificant[.]”). But in any event, the ALJ clearly provided no analysis of the
impact of the claimant’s depression on her ability to perform the activities necessary to
do the work that he found she could do (as opposed to her “daily activities”).
Because the ALJ failed to properly account for the claimant’s severe depression in
formulating her RFC at step four, the decision of the Commissioner must be reversed and
the case remanded to the ALJ for further analysis. If such analysis on remand results in
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any adjustment to the claimant’s RFC, the ALJ should then 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. The decision of the Commissioner is therefore REVERSED, and the case is
REMANDED for further proceedings consistent herewith.
DATED this 29th day of September, 2011.
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STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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