Harrison v. Social Security Administration
Filing
23
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
JACKIE HARRISON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. CIV-11-142-SPS
OPINION AND ORDER
The claimant Jackie Harrison requests judicial review pursuant to 42 U.S.C. §
405(g) of the decision of the Commissioner of the Social Security Administration
denying her application for benefits under the Social Security Act. The claimant appeals
the decision of the Commissioner and asserts that the Administrative Law Judge (“ALJ”)
erred in determining she was not disabled. As discussed below, the Court finds that the
Commissioner’s decision is REVERSED and the case 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
1
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 he 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).
-2-
F.2d 799, 800 (10th Cir. 1991). Nevertheless, 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 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 23, 1978, and she was thirty years old at the
time of the administrative hearing. She has a tenth grade education but did obtain her
GED (Tr. 26). She has past relevant work as a nurse aide and order filler (Tr. 21). The
claimant alleges she has been unable to work since August 2, 2007 because of
degenerative disc disease, fibromyalgia, and panic attacks (Tr. 126).
Procedural History
On January 19, 2008, the claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and supplemental security
income payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her
applications were denied. ALJ Kim D. Parrish conducted a hearing and determined that
the claimant was not disabled in a decision dated September 8, 2009. The Appeals
Council denied review, so the ALJ’s decision is the final decision of the Commissioner
for purposes of this 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 (fibromyalgia, degenerative disc disease, and history
-3-
of panic attacks) but retained the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. §§ 404.1567(b); 416.967(b), with the additional limitations
that the claimant can only occasionally bend forward at the waist, bend at the knees to
come to rest on her knees, and bend downward by bending her legs and spine (Tr. 15-16).
In addition, the ALJ found that the claimant was limited to unskilled work and work in
relative isolation with limited public contact (Tr. 16). The ALJ concluded that while the
claimant could not return to her past relevant work, she was nevertheless not disabled
because there was work she could perform in the national economy, i.e., housekeeping
cleaner, merchandise marker, and sewing machine operator (Tr. 22).
Review
The claimant contends that the ALJ erred: (i) by failing to properly analyze the
“other source” opinion of claimant’s mental health counselor and (ii) by picking and
choosing among the relevant evidence. The Court finds the claimant’s first contention
persuasive.
The claimant began receiving mental health treatment at Mental Health and
Substance Abuse Centers in Southern Oklahoma (MHSSO) in July 2008, at which time
she went through an initial screening (Tr. 370-72).
The claimant reported seeking
treatment for depression, suicide attempts, and to learn coping skills (Tr. 370). She
reported feeling serious depression, serious anxiety and tension, thoughts of harming
herself, and hallucinations within the last three months (Tr. 370). She also reported that
-4-
she had been hit, slapped, kicked, emotionally or sexually hurt, or threatened in the past
twelve months (Tr. 371).
The claimant’s counselor, Janiece Covington, R.A., completed a Residual
Functional Capacity Assessment Form (Mental) on June 19, 2009 (Tr. 323-27). In that
form, Ms. Covington opined that claimant was markedly limited in the following
functional categories: i) ability to remember locations and work-like procedures; ii)
ability to understand and remember detailed instructions; iii) ability to carry out detailed
instructions; iv) ability to maintain attention and concentration for extended periods; v)
ability to perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances; vi) ability to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at
a consistent pace without an unreasonable number and length of rest periods; vii) ability
to interact appropriately with the general public; viii) ability to accept instructions and
respond appropriately to criticism from supervisors; ix) ability to travel in unfamiliar
places or use public transportation; and x) ability to set realistic goals or make plans
independently of others (Tr. 323-27).
Ms. Covington also found that claimant had
moderate limitations in a number of functional categories, including, inter alia, ability to
understand and remember very short and simple instructions, ability to work in
coordination with or proximity to others without being distracted by them, and ability to
respond appropriately to changes in the work setting (Tr. 323-26).
-5-
The ALJ mentioned Ms. Covington’s opinion and summarized her findings, but
stated only that her opinion deserved little weight for the following reasons: i) Ms.
Covington was not a doctor; ii) her opinion was inconsistent with other substantial
evidence; and iii) an RFC assessment is an administrative issue reserved to the
Commissioner (Tr. 20). His consideration of Ms. Covington’s “other source” opinion
was clearly inadequate. See, e.g., Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007)
(noting that other source opinions should be evaluated with the relevant evidence “on key
issues such as impairment severity and functional effects” and by considering the 20
C.F.R. 404.1527, 416.927 factors in determining the weight of these opinions). See
generally Soc. Sec. Rul. 06-03p, 2006 WL 2329939, at *6 (discussing considerations of
evidence from sources who are not acceptable medical sources and stating that
“[a]lthough there is a distinction between what an adjudicator must consider and what the
adjudicator must explain in the disability determination or decision, the adjudicator
generally should explain the weight given to opinions from these ‘other sources,’ or
otherwise ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning”)
[emphasis added].
Social Security Ruling 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
-6-
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.” Frantz, 509 F.3d at 1302
[internal quotations omitted]. Those factors are the familiar ones: (i) the length of the
treatment relationship and the frequency of examination; (ii) the nature and extent of the
treatment relationship, including the treatment provided and the kind of examination or
testing performed; (iii) the degree to which the physician’s opinion is supported by
relevant evidence; (iv) consistency between the opinion and the record as a whole; (v)
whether or not the physician 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.
See Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003)
[quotation marks omitted], citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir.
2001).
The ALJ’s first reason for rejecting Ms. Covington’s opinion was that she was not
a doctor. But the fact that Ms. Covington is not a physician does not justify the ALJ’s
disregard for her opinions regarding the severity of claimant’s mental impairments. See,
e.g., Carpenter v. Astrue, 537 F.3d 1264, 1267-68 (10th Cir. 2008) (“Although a
chiropractor is not an ‘acceptable medical source’ for diagnosing an impairment under
the regulations, the agency has made clear that the opinion of such an ‘other source’ is
relevant to the questions of severity and functionality. The ALJ was not entitled to
disregard the ‘serious problems’ set out in Dr. Ungerland’s opinion simply because he is
-7-
a chiropractor.”) [citations omitted]. Next, the ALJ stated that Ms. Covington’s opinion
was “inconsistent with other substantial evidence in the case” but failed to point out any
of the inconsistencies to which he was referring. Wise v. Barnhart, 129 Fed. Appx. 443,
447 (10th Cir. 2005) (“The ALJ also concluded that Dr. Houston’s opinion was
inconsistent with the credible evidence of record, but he fails to explain what those
inconsistencies are.”) [quotation marks and citations omitted] [unpublished opinion].
Finally, the ALJ noted that an RFC assessment is an opinion reserved to the
Commissioner and that opinions in this regard are never entitled to controlling weight or
special significance (Tr. 20). However, Soc. Sec. Ruling 96-5p distinguishes between a
Medical Source Statement and an RFC assessment, and states the following:
A medical source’s statement about what an individual can still do is
medical opinion evidence that an adjudicator must consider together with
all of the other relevant evidence (including other medical source
statements that may be in the case record) when assessing an individual’s
RFC. Although an adjudicator may decide to adopt all of the opinions
expressed in a medical source statement, a medical source statement must
not be equated with the administrative finding known as the RFC
assessment.
Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *5. Ms. Covington’s opinions were part of a
Medical Source Statement that should have been considered during the ALJ’s assessment
of claimant’s RFC.
Because the ALJ failed to properly analyze the “other source” opinion of Ms.
Covington, the decision of the Commissioner is reversed and the case remanded to the
ALJ for further analysis. If such analysis results in any adjustments to the claimant’s
-8-
RFC, the ALJ should re-determine what work the claimant can perform, if any, and
ultimately whether she is disabled.
Conclusion
The Court finds that incorrect legal standards were applied by the ALJ and the
decision of the Commissioner is therefore not supported by substantial evidence.
Accordingly, the Magistrate Judge finds that the decision of the ALJ is REVERSED and
REMANDED.
DATED this 26th day of September, 2012.
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?