Sullivan 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 (dma, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
TRAVIS L. SULLIVAN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
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Case No. CIV-10-434-SPS
OPINION AND ORDER
The claimant Travis L. Sullivan 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 asserts the Administrative Law Judge
(“ALJ”) erred in determining he was not disabled. For the reasons set forth below, the
Commissioner’s decision is hereby REVERSED and 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
substantiality of evidence must take into account whatever in the record fairly detracts
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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 regarded as 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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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 September 24, 1961, and was forty-seven years old at the
time of the administrative hearing. (Tr. 20, 85). He completed the eleventh grade (Tr.
109), and has worked as a concrete finisher and warehouse worker (Tr. 37). The claimant
alleged that he has been unable to work since April 6, 2007, due to arthritis. (Tr. 85,
104).
Procedural History
On April 30, 2007, the claimant protectively applied for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434 (Tr. 106-110).
His applications were denied. ALJ Kim Parrish conducted an administrative hearing and
determined that the claimant was not disabled in a written opinion dated September 7,
2009. (Tr. 10-16). The Appeals Council denied review, so the ALJ’s written opinion is
the Commissioner’s final decision for purposes of this appeal. See 20 C.F.R. § 404.981.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant had the residual functional capacity (RFC) to perform a full range of light
work, see 20 C.F.R. § 404.1567(b), with the additional limitations of only occasionally
stooping, kneeling, or crouching.
(Tr. 13).
The ALJ concluded that, although the
claimant could not return to his past relevant work, he was nevertheless not disabled
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because there was work he could perform, e. g., counter clerk for photo finishing,
furniture rental clerk, and cashier at a self-service gas station. (Tr. 15).
Review
The claimant contends that the ALJ erred by: (i) failing to perform a proper
credibility analysis; and (ii) by failing to properly determine his RFC. The Court finds
the ALJ did improperly assess the claimant’s credibility, and the decision of the
Commissioner must therefore be reversed.
The ALJ found that the claimant had the severe impairment of
rheumatoid
arthritis in the hands and knees. (Tr. 12). The medical evidence reveals that the claimant
was repeatedly treated for this impairment. (Tr. 182-185, 203-204). The records further
indicate that medications offered some temporary relief, but not complete relief, which
resulted in flare-ups as well as increased pain and inflammation. (Tr. 224-231, 319-320).
In August 2007, Dr. Ronald Schatzman performed a consultative examination and
concluded that the claimant’s arthritis was severe, and noted that his steroid therapy and
Methotrexate therapy had been discontinued due to finances; that the claimant did not use
walking aids, but it would have been difficult to do so because of the claimant’s sinovitis
in his hands and feet; and that the claimant’s rheumatoid arthritis was “quite active” and
“significantly interfering with activities of daily living.” (Tr. 232-235). A February 2008
consultative examiner noted swelling in the claimant’s joints at his hands and feet, and
noted he had a “stable, solid gait.” (Tr. 290).
At the administrative hearing, the claimant testified that his hands swell up every
two months or so, and that the swelling lasts for days even with the use of medication.
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(Tr. 25-26). He further testified that he cannot walk or sit too long—approximately
twenty minutes—without experiencing severe pain. (Tr. 31). He stated that he had been
given an appointment for a pulmonary lung function test, but no one was present when he
showed up for the appointment; that he was told they would reschedule, but they never
did; and that one of the bases for denying him listed his failure to attend that examination.
(Tr. 29-30, 379).
He stated that, in addition to the near-constant pain, his joints
frequently swelled in his hands, arms, shoulders, and knees. (Tr. 34-35).
A credibility determination is entitled to deference unless there is an indication the
ALJ misread the medical evidence taken as a whole. Casias v. Secretary of Health &
Human Services, 933 F.2d 799, 801 (10th Cir. 1991). Further, an ALJ may disregard a
claimant’s 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 (July 2, 1996). The ALJ’s credibility determination fell below these
standards.
The ALJ mentioned that he had considered the requirements of Social
Security Ruling 96-7p, but he made no mention of the requisite credibility factors set
forth in 20 C.F.R. § 404.1529 or Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987) and
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further failed to apply them to the evidence.2 Although an ALJ is not required to perform
a “formalistic factor-by-factor recitation of the evidence[,]” Qualls v. Apfel, 206 F.3d
1368, 1372 (10th Cir. 2000), “simply ‘recit[ing] the factors’” is insufficient. Hardman,
362 F.3d at 678, quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *4. Here, the ALJ
mentioned Soc. Sec. R. 96-7p and briefly summarized the medical evidence (including
the testimony of the claimant), but did not affirmatively link any of the factors to specific
evidence. See Kepler, 68 F.3d at 391 (The ALJ must “explain why the specific evidence
relevant to each factor led him to conclude claimant’s subjective complaints were not
credible.”); see also Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir. 2008) (“The
ALJ’s purported pain analysis is improper boilerplate because he merely recited the
factors he was supposed to address and did not link his conclusions to the evidence[.]”).
Indeed, the ALJ’s entire credibility analysis here was the following: “After careful
consideration of the evidence, the Administrative Law Judge finds that the claimant’s
medically determinable impairment could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms have not been credible to the extent they are
inconsistent with the above residual functional capacity assessment.” (Tr. 16).
The problem with the ALJ’s analysis of the claimant’s credibility (apart from
vagueness) is that he should have first evaluated the claimant’s testimony (along with all
2
The factors to consider in assessing a claimant’s credibility are: (1) daily activities; (2)
the location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken; (5) treatment for pain relief aside from medication; (6) any other
measures the claimant uses or has used to relieve pain or other symptoms; (7) any other factors
concerning functional limitations. Soc. Sec. Rul. 96-7p at 3, 1996 WL 374186 (1996).
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the other evidence) according to the guidelines and only then formulated an appropriate
RFC, not the other way around, i. e., the ALJ apparently judged the credibility of the
claimant’s testimony by comparing it to a pre-determined RFC. See, e. g., Bjornson v.
Astrue, 2012 WL 280736 at *4-5 (7th Cir. Jan. 31, 2012) (slip op.) (in addressing nearly
identical language, “[T]he passage implies that ability to work is determined first and is
then used to determine the claimant's credibility. That gets things backwards The
administrative law judge based his conclusion that Bjornson can do sedentary work on
his determination that she was exaggerating the severity of her headaches. Doubts about
credibility were thus critical to his assessment of ability to work, yet the boilerplate
implies that the determination of credibility is deferred until ability to work is assessed
without regard to credibility, even though it often can't be.”). And although he discussed
much of the medical evidence, including the claimant’s testimony, the ALJ wholly failed
to specify any evidence that caused him to disbelieve the claimant.
Because the ALJ failed to properly analyze the claimant’s credibility, the decision
of the Commissioner should be reversed and the case remanded to the ALJ for further
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
he is disabled.
Conclusion
The Court hereby FINDS that correct legal standards were not applied by the ALJ,
and the Commissioner’s decision is therefore not supported by substantial evidence. The
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Commissioner’s decision is accordingly REVERSED and the case REMANDED for
further proceedings consistent herewith.
DATED this 21st day of March, 2012.
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