Didway v. Social Security Administration
Filing
22
OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CAROLE F. DIDWAY,
Plaintiff,
v.
Case No. CIV-11-067-KEW
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Defendant.
OPINION AND ORDER
Plaintiff Carole F. Didway (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,
work
which
engage in any other kind of substantial gainful
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).
This Court's review is limited to
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 lim'it 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 (lOth Cir. 1988).
2
two
inquiries:
substantial
first,
evidence;
and,
standards were applied.
(lOth
Cir.
whether
the
second,
decision was
whether
Hawkins v. Chater,
1997) (citation
the
correct
legal
113 F.3d 1162, 1164
The
omitted).
supported by
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."
(quoting
Richardson v.
Consolidated
(1938)).
Perales,
Edison
Co.
v.
402 U.S.
NLRB,
305
401
U.S.
{1971)
197,
229
The court may not re-weigh the evidence nor substitute
its discretion for that of the agency.
Health
389,
&
Human
Servs.,
933
F.2d 799,
Casias v.
800
Secretary of
{lOth 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 October 16, 1952 and was 56 years old at
the time of the ALJ's decision.
Claimant completed her high school
education and took some college courses.
Claimant worked in the
past as a janitor, housekeeper, and assembly line worker.
3
Claimant
alleges
an
inability
to
work beginning March
6,
2006
due
to
limitations resulting from depression, bipolar disorder, and back
and thyroid problems.
Procedural History
On July 25, 2006, Claimant protectively filed for disability
insurance benefits under Title II
(42 U.S.C.
§
401, et seq.) and
for 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
September 8, 2008, an administrative hearing was held before ALJ
Lantz McClain in Tulsa,
Oklahoma.
issued an unfavorable decision.
On August 3,
2009,
the ALJ
On December 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 four 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 (uRFC") to perform her past relevant work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in
4
(1)
failing to
perform a proper step four analysis;
the medical
opinion evidence;
credibility
analysis;
and
(3)
(4)
(2) failing to properly weigh
failing
failing
to perform a
to
properly
proper
apply
the
regulations regarding drug and alcohol abuse.
Step Four Analysis
Claimant contends the ALJ failed to perform a proper step four
evaluation.
In his decision, the ALJ determined Claimant suffered
from the severe impairment of bipolar disorder.
(Tr.
13).
He
concluded Claimant could perform medium work except that she could
only occasionally lift and/or carry 50 pounds, lift and frequently
carry 2 5
pounds,
stand and/ or walk
6
hours
out
of
an
8
hour
workday, sit at least 6 hours in an 8 hour workday, perform simple
repetitive tasks and handle incidental contact with the public.
(Tr.
14-15).
Based upon this RFC,
the ALJ found Claimant could
perform her past relevant work of janitorial work,
and assembly line work.
On October 28,
2006,
housekeeping,
(Tr. 18) .
Dr. Theresa Horton performed a mental
status examination on Claimant.
Claimant demonstrated rapid speech
with a friendly attitude and appropriate level of cooperation.
thought
processes
were
quite
tangential
although
she
Her
became
organized and goal directed with prompted and had flight of ideas
at times.
Her mood was predominately anxious,
5
hypomanic,
and
depressed.
Claimant was oriented as to person, place, time, and
situation.
Her recall and memory were intact.
was poor and she was easily distracted.
Her concentration
Claimant appeared to have
an adequate fund of information and was of average intelligence.
She was able to complete serial sevens to the number 72 and was
able
to count to
30 by threes,
insight was poor.
Disorder,
Type
dependence.
Dr.
Her
Horton diagnosed Claimant with Bipolar
Mixed
II,
with prompting after 15.
(predominately hypomanic)
and alcohol
(Tr. 234-40).
On January 10,
2007,
Dr.
Karen Kendall completed a Mental
Residual Functional Capacity Assessment on Claimant.
Dr. Kendall
found Claimant was moderately limited in the areas of the ability
to understand and remember detailed instructions, the ability to
carry out detailed instructions, the ability to maintain attention
and concentration for extended periods,
the ability to interact
appropriately with the general public, and the ability to respond
appropriately
concluded
that
to
changes
Claimant
in
"is
the
work
able
to
setting.
perform
Dr.
simple
repetitive more complex tasks under ordinary supervision.
Kendall
and
Clmt is
able to interact appropriately for incidental work purposes.
is able to adapt to some work change."
some
Clmt
(Tr. 256-58).
Dr. Kendall also completed a Psychiatric Review Technique form
on Claimant of the same date.
She found Claimant suffered from an
6
affective disorder -
bipolar disorder.
She determined Claimant
suffered from sleep disturbance, decreased energy, and difficulty
concentrating
or
thinking.
Dr.
Kendall
suffered from alcohol dependence, active.
also
found
Claimant
She found under the
~B"
Criteria of the listings that Claimant was moderately limited in
the
areas
of
restriction
of
activities
of
difficulties in maintaining social functioning,
daily
living,
difficulties in
maintaining concentration, persistence, or pace, and suffered on or
two
episodes
of
decompensation
of
extended duration.
In
her
consultant's notes, Dr. Kendall stated Claimant's bipolar disorder
caused depression, poor concentration, and motivation.
was noted to drink heavily on a daily basis.
Kendall to be depressed,
intact.
at
alert,
oriented,
Claimant
She appeared to Dr.
logical,
with memory
She was logical and appropriate but her speech was rapid
Dr.
times.
Kendall
noted
Claimant
was
tangential
and
occasionally experience flight of ideas but became organized when
directed.
Claimant was
easily distracted but able to perform
serial sevens, had intact memory, and was able to abstract.
Dr.
Kendall stated Claimant had medications and care available that
improved her condition in the past but that she chooses not to be
compliant with care.
Claimant
first
{Tr. 242-51).
contends
the ALJ failed
in
his
step
four
analysis by not including all of Claimant's impairments in his
7
hypothetical questioning of the vocational expert.
Specifically,
Claimant asserts the ALJ failed to include a moderate limitation in
her
ability
setting.
to
respond
appropriately
to
changes
in
the
work
Dr. Kendall's report is somewhat internally inconsistent.
On the form, she included a moderate restriction in the ability to
adapt but then stated in her narrative that Claimant could adapt to
some work changes.
Given this conflict, this Court cannot conclude
it was error for the ALJ to not include this limitation in the
hypothetical questioning.
Claimant next contends that the ALJ "failed to note that his
reviewing expert did not fully capture the essence of the mental
CE' s
report."
ability
to
Claimant's
The
complete
essence
serial
interpretation
of
the
sevens
of
report
and
further
included
counting
Claimant's
by
limitation
threes.
from
her
performance before the examiner is mere speculation and did not
need to be included in the ALJ's assessment.
Claimant also states the ALJ should have included a limitation
for her inability to get along with her supervisors, contending her
mental health therapist recorded such a limitation.
In fact, the
therapist merely regurgitated Claimant's statements and did not
make a medical finding of such a limitation.
(Tr. 197).
Claimant contends the ALJ improperly found no evidence was
presented in the medical record to indicate Claimant experienced
8
episodes of decompensation.
(Tr. 14).
This Court must agree with
Claimant that Dr. Kendall did indicate Claimant had experienced two
or more such episodes.
more applicable to a
(Tr. 252).
Although this is an argument
finding of whether Claimant met a listing
rather than a step four argument, an ALJ "is not entitled to pick
and choose through an uncontradicted medical opinion, taking only
the parts that are favorable to a finding of nondisability."
v. Astrue, 482 F. 3d 1205, 1208 {lOth Cir. 2007}.
Haga
Certainly, it is
well-recognized in this Circuit that an ALJ is not required to
discuss every piece of evidence.
1009-10
(lOth Cir.
1996).
Clifton v. Chater, 79 F.3d 1007,
However,
he
is
required to discuss
uncontroverted evidence not relied upon and significantly probative
evidence that is rejected.
Id. at 1010.
On remand, the ALJ shall
consider Dr. Kendall's finding on episodes of decompensation.
Claimant contends the ALJ failed to engage in the three phase
analysis required at step four.
In analyzing Claimant's ability to
engage in his past work, the ALJ must assess three phases.
first phase,
In the
the ALJ must first determine the claimant's RFC.
Winfrey v. Chater, 92 F.3d 1017, 1023 (lOth Cir. 1996).
The ALJ's
RFC
involving
did
not
include
all
of
Claimant's
limitations
episodes of decompensation.
In the second phase, the ALJ must determine the demands of the
claimant's past relevant work.
Id.
9
In making this determination,
the ALJ may rely upon the testimony of the vocational expert.
Doyal v. Barnhart, 331 F. 3d 758, 761 {lOth Cir. 2003).
The ALJ in
this case inquired of the vocational expert as to the exertional
level of Claimant's past relevant work.
The ALJ did not inquire as
to the mental demands of the past work.
failed
to
adequately
ascertain
and
As a result,
consider
the
the ALJ
demands
of
Claimant's past relevant work at the second phase.
The third and final phase requires an analysis as to whether
the claimant has the ability to meet the job demands found in phase
two despite the limitations found in phase one.
at 1023.
Winfrey, 92 F.3d
Since the ALJ did not accurately ascertain or consider
the demands of Claimant's past relevant work, he did not properly
consider
whether
limitations.
Claimant
could meet
those
demands
given
his
On remand, the ALJ shall reconsider and reevaluate
his step four analysis.
Evaluation of Medical Opinion Evidence
Claimant
contends
the
ALJ
improperly
failed
to
give
controlling weight to his treating physician, Dr. Donald M. Elgin.
In a letter dated September 5, 2008, Dr. Elgin found Claimant had
been diagnosed with alcoholism, hallucinations,
failure,
history of paroxysmal atrial
congestive heart
fibrillation with atrial
tachycardia, folic acid deficiency, abnormal liver enzymes, urinary
10
tract
infection,
thrombocytopenia
and
cholelithiasis,
low
magnesium, chronic microvascular changes in the white matter of her
brain,
and hypertension.
Dr.
Elgin requested that the agency
nconsider this lady for disability due to her record of medical
disabilities."
In
his
(Tr. 261).
decision,
the
ALJ
gave
Dr.
Elgin's
opinion
nsignificantly reduced weight" because the medical record did not
support his findings.
The ALJ specifically found Claimant was not
under treatment for any heart conditions.
contends
Dr.
metaprolol,
Elgin's
records
spironolactone,
indicate
and
characterizes as heart medications.
( Tr.
17) .
Claimant
furosemide,
(Tr. 192).
Claimant
was
which
taking
Claimant
While these drugs
are indicated in the medical record to be prescribed to treat
Claimant's high blood pressure, these drugs may also be utilized to
treat
heart
failure.
conditions,
See,
United
www.ncbi.nlm.nih.gov.
opinions of Dr.
including
States
angina
Nat'l
and
to
treat
heart
Library
of
Medicine
at
On remand, the ALJ should re-evaluate the
Elgin regarding Claimant's heart condition and
engage in analysis of the factors stated in Watkins v. Barnhart,
350 F.3d 1297, 1300 (lOth Cir. 2003) in affording the appropriate
weight to the opinion.
Credibility Analysis
11
The
suspect.
ALJ' s
evaluation
of
Claimant's
testimony
is
somewhat
He questions Claimant's credibility wherein she testified
that she still suffers from peripheral neuropathy when she had only
be diagnosed with the condition on one occasion.
The number of
diagnoses
a
of
credibility.
for
her
a
does
not
bear
upon
claimant's
He also finds Claimant would have sought treatment
mental
indicates.
condition
condition
if
it
were
as
severe
as
Claimant
Given the nature of mental conditions and a claimant's
ability to determine whether they need treatment because of the
existence of the condition,
the ALJ was obligated to determine
further Claimant's reason for not seeking treatment before the
wholesale rejection of her testimony.
On remand,
the ALJ shall
reconsider his findings on credibility after further inquiry.
Application of the Drug and Alcohol Abuse Regulations
The ALJ determined that Claimant would be unable to work due
to her alcoholism but that she may not be found "disabled" due to
the effects of alcoholism and "factored out" those effects from his
analysis.
(Tr.
17).
The Social Security Act provides that an
individual would not be considered disabled if alcoholism or drug
addiction
were
a
"contributing
factor
material
to
the
Commissioner's determination that the individual is disabled."
Salazar v.
Barnhart,
468 F.3d 615,
12
622-23
(lOth Cir. 2006).
To
that end, the Commissioner must determine whether the individual
would
still
alcohol.
2001) .
disabled
Drapeau v.
Careful
abstinence.
if he
or
Massanari,
consideration
supra
Salazar,
impairments
abuse,
be
cannot
be
she
stopped using drugs
255 F.3d 1211,
is
at
to
be
623.
given
If
separated from the
1214
a
to
or
(lOth Cir.
periods
of
claimant's mental
effects
of
substance
then the claimant's drug and alcohol addiction is not a
contributing factor material to the disability determination.
at 624.
Id.
Additionally, in accordance with an explanatory teletype
~where
issued by Defendant,
the record is devoid of any medical or
psychological report, opinion, or projection as to the claimant's
remaining limitations if she stopped using drugs or alcohol, an ALJ
should 'find that DAA is not a contributing factor material to the
determination of disability.u
eliminating
Claimant's
Id. at 623.
alcoholism
from
The ALJ did not err in
his
analysis.
Indeed,
Claimant's argument that he should have included the condition in
his hypotheticals is contrary to the current state of the law.
Conclusion
The
decision
substantial
applied.
fourth
of
the
Commissioner
evidence and the
Therefore,
sentence
of
correct
this Court
42
U.S.C.
13
legal
finds,
§
is
not
supported
standards
by
were not
in accordance with the
405(g),
the
ruling
of
the
Commissioner of Social Security Administration should be and is
REVERSED and the matter REMANDED for further proceedings consistent
with this Opinion and Order.
IT IS SO ORDERED this
~L}~ay
of July, 2012.
~(~
UNITED STATES MAGISTRATE JUDGE
14
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