Lee v. Social Security Administration
Filing
25
OPINION AND ORDER by Mag. Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
KELLY J. LEE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-11-004-KEW
OPINION AND ORDER
Plaintiff Kelly J. Lee (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.
Claimant
appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined
that
discussed
below,
Claimant
it
is
was
the
not
disabled.
finding
of
this
For
the
Court
reasons
that
the
Commissioner’s decision should be and is REVERSED and REMANDED 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).
Security
Act
“only
if
A claimant is disabled under the Social
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
§423(d)(2)(A).
in
the
national
economy.
.
.”
42
U.S.C.
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).
two inquiries:
This Court’s review is limited to
first, whether the decision was supported by
1
Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), 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. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).
2
substantial
evidence;
and,
standards were applied.
second,
whether
the
correct
legal
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 re-weigh the evidence nor substitute its discretion
for that of the agency.
Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “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
Claimant was born on January 16, 1962 and was 47 years old at
the time of the ALJ’s decision.
Claimant completed her GED.
Claimant has worked in the past as a licensed practical nurse and
waitress.
Claimant alleges an inability to work beginning December
15,
due
2006
to
limitations
resulting
from
bipolar
disorder,
depression, hyperthyroidism, and rheumatoid arthritis in her hands
3
and hips.
Procedural History
On June 2, 2006, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) and
supplemental security income pursuant to Title XVI (42 U.S.C. §
1381, et seq.) of the Social Security Act. Claimant’s applications
were denied initially and upon reconsideration. On August 26, 2009,
an administrative hearing was held before ALJ Charles Headrick in
Tulsa, Oklahoma. On November 4, 2009, the ALJ issued an unfavorable
decision on Claimant’s applications.
On October 29, 2010, the
Appeals Council denied review of the ALJ’s decision.
As a result,
the decision of the ALJ represents the Commissioner’s final decision
for purposes of further appeal.
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 determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional
capacity
(“RFC”)
to
perform
light
work
with
some
limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in failing to properly
weigh Claimant treating physician’s opinion.
4
Discussion
Claimant contends the ALJ failed to attribute the proper weight
to the opinion of his treating physician, Dr. Sarah Janes. Dr. Janes
began treating Claimant on August 21, 2007. Dr. Janes diagnosed her
with bipolar disorder and obsessive compulsive disorder. (Tr. 290).
Claimant reported she intended to resume therapy and begin working.
Id.
On October 15, 2007, Claimant reported to Dr. Janes that she
“had a nervous breakdown” since her last visit.
She was irritable
and moody, increased energy, increased distractibility, and racing
thoughts.
Claimant reported being depressed much of the time.
Claimant attributed her depression to her son going back to prison.
Claimant was diagnosed with bipolar disorder and alcohol dependence.
(Tr. 273).
On January 5, 2009, Dr. Janes (now Lands) attended Claimant.
Claimant reported that she had trouble sleeping but admitted she had
poor sleep hygiene and slept during the day.
Claimant
to
be
alert
and
oriented
x3,
Dr. Janes found
well-groomed,
adequate
hygiene, mood euthymic, affect congruent, no suicidal ideation, no
homicidal ideation, no psychosis, attention/concentration adequate,
motor activity within normal limits, and judgment/insight average.
Dr. Janes diagnosed Claimant with bipolar disorder and alcohol
5
dependence.
On
(Tr. 382).
June
23,
2008,
Dr.
Janes
completed
a
Medical
Source
Statement of Ability to Do Work-Related Activities (Mental) on
Claimant.
She determined Claimant was markedly restricted in the
areas of maintaining regular attendance and being punctual within
customary, usually strict tolerances, accepting instructions and
responding appropriately to criticism from supervisors, dealing with
normal
work
stress,
understanding
and
remembering
detailed
instructions, dealing with stress of semi-skilled and skilled work,
and using public transportation.
(Tr. 335-36).
Dr. Janes found
Claimant to be “extremely” limited in the area of completing a
normal
workday
and
workweek
psychologically based symptoms.
In
the
persuasive
ALJ’s
that
decision,
Dr.
Janes
without
interruptions
from
(Tr. 335).
he
found
merely
that
signed
“the
the
Statement] and did not actually complete it.”
evidence
[Medical
is
Source
He also found some
of the findings were administrative in nature and not medical, such
as the RFC.
The ALJ did not give Dr. Janes’ opinion controlling
weight because (1) it addressed issues reserved to the Commissioner;
(2) it is in conflict with the treatment records from Family &
Children’s Services; and (3) it is inconsistent with the other
substantial evidence in the medical record.
(Tr. 15).
In deciding how much weight to give the opinion of a treating
6
physician, an ALJ must first determine whether the opinion is
entitled to “controlling weight.”
1297, 1300 (10th Cir. 2003).
Watkins v. Barnhart, 350 F.3d
An ALJ is required to give the
opinion of a treating physician controlling weight if it is both:
(1) “well-supported by medically acceptable clinical and laboratory
diagnostic techniques”; and (2) “consistent with other substantial
evidence in the record.”
Id. (quotation omitted).
“[I]f the
opinion is deficient in either of these respects, then it is not
entitled to controlling weight.”
Id.
Even 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 20 C.F.R. § 404.1527.”
Id. (quotation omitted).
factors reference in that section are:
The
(1) the length of the
treatment relationship and the frequency of examination; (2) the
nature and extent of the treatment relationship, including the
treatment
provided
and
the
kind
of
examination
or
testing
performed; (3) the degree to which the physician's opinion is
supported by relevant evidence; (4) consistency between the opinion
and the record as a whole; (5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and (6)
other factors brought to the ALJ's attention which tend to support
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or contradict the opinion.
Id. at 1300-01 (quotation omitted).
After considering these factors, the ALJ must “give good reasons”
for the weight he ultimately assigns the opinion.
20 C.F.R. §
404.1527(d)(2); Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th
Cir.
2004)(citations
omitted).
Any
such
findings
must
be
“sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinions and the reason for that weight.”
Id.
“Finally, if the
ALJ rejects the opinion completely, he must then give specific,
legitimate reasons for doing so.”
Watkins, 350 F.3d at 1301
(quotations omitted).
With regard to the ALJ’s assumption that Dr. Janes did not
complete the Medical Source Statement, he refers to a note from
April 17, 2008 in which it is stated, “CM informed clt that Dr.
Janes request (sic) to see the clt one more time before she signs
the SSI assessment.
CM explained to clt that she will need to get
worked in with Dr. Janes.”
extrapolates
that
this
(Tr. 396).
statement
The ALJ impermissibly
demonstrates
the
opinion
on
Claimant’s functional limitations are not those of Dr. Janes. This
assumption is an insufficient basis to reduce the controlling
weight to which Dr. Janes’ opinion is entitled.
The statement is
ambiguous at best - Dr. Janes may have prepared the statement and
8
wanted to confirm the results.
If the ALJ suspected that the
statement was not authored by the physician, he was obligated to
recontact the physician and determine the facts, not assume them.
Moreover,
the
ALJ
states
that
the
records
at
Family
&
Children’s Services conflict with Dr. Janes’ opinions but does not
specify the inconsistencies thereby making it impossible for this
Court to evaluate his reasoning on this point.
Similarly, he
states the opinion is inconsistent with “the other substantial
evidence as noted above” but this Court finds not other evidence in
his recitation of the facts from other sources which directly
conflict with Dr. Janes’ findings.
Consequently, the matter will
be remanded to the ALJ for further evaluation of the opinions of
Claimant’s treating physician under the Watkins rubric. Should the
ALJ find an irreconcilable conflict in the evidence, he shall
employ a consultative examiner to assist in his evaluation and
decision.
Conclusion
The
decision
of
the
Commissioner
is
not
supported
by
substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is
9
REVERSED and the
matter REMANDED for further proceedings consistent with this Opinion
and Order.
DATED this 29th day of March, 2012.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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