Welter 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
SHARMA WELTER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
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Case No. CIV-11-219-SPS
OPINION AND ORDER
The claimant Sharma Welter requests judicial review of a denial of benefits by the
Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). She
appeals the Commissioner’s decision and asserts the Administrative Law Judge (“ALJ”)
erred in determining she 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 h[er] physical or mental impairment or impairments are of
such severity that [s]he is not only unable to do h[er] previous work but cannot,
considering h[er] 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. Sec’y of Health & Human Svcs., 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 from its weight.”
1
Step one requires the claimant to establish that she is not engaged in substantial gainful
activity. 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.
If the claimant is engaged in substantial gainful activity, or her impairment is not medically
severe, disability benefits are denied. If she 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, she is regarded as disabled and
awarded benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where
the claimant must show that she lacks the residual functional capacity (RFC) to return to her 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 her age, education, work
experience, and RFC. Disability benefits are denied if the claimant can return to any of her past
relevant work or if her RFC does not preclude alternative work. See generally Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).
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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 March 13, 1969, and was forty years old at the time of the
administrative hearing. (Tr. 23). She completed high school and a year of college, and
has worked as a certified nurse’s aid, certified medications aide, and cashier II. (Tr. 44,
168). She alleges that she has been disabled since July 1, 2006, due to a shattered
vertebrae in her back, pinched nerve, and herniated discs. (Tr. 163).
Procedural History
On July 21, 2008, the claimant filed for disability insurance benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security income
benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85.
applications were denied.
Her
ALJ Trace Baldwin held an administrative hearing and
determined the claimant was not disabled in a written opinion dated May 12, 2010. (Tr.
11-19). The Appeals Council denied review, so the ALJ’s written opinion represents the
Commissioner’s final decision 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 could perform less than the full range of sedentary work as defined in
20 C.F.R. §§ 404.1521 and 416.921, i. e., she could lift/carry ten pounds
frequently/occasionally, stand/walk two hours in an eight-hour workday, and sit six hours
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in an eight-hour workday, but that she also needed a sit/stand at will option, could only
walk fifty yards, and could not be around moving or dangerous machinery or equipment,
unprotected heights, or uneven flooring. (Tr. 15). The ALJ concluded that, although the
claimant could not return to her past relevant work, she was nevertheless not disabled
because there was work she could perform in the regional and national economies, e. g.,
cashier/order clerk/food or assembler. (Tr. 19).
Review
The claimant contends that the ALJ erred: (i) by failing to consider all of the
medical evidence, particularly the evidence related to her obesity, (ii) by improperly
finding that she has the RFC to perform substantial gainful activity, and (iii) by failing to
properly evaluate her credibility.
The Court finds the claimant’s third contention
persuasive for the following reasons.
The relevant medical evidence reveals that the claimant injured her back while she
was at work, when she fell out of a chair and twisted her back. (Tr. 206). The claimant
did not improve with aggressive conservative treatment, and underwent a L4-5 posterior
spinal fusion using iliac crest bone graft in September 2007. (Tr. 207, 219). Following
her surgery, the claimant continued to report pain and to request medications for her pain.
(Tr. 237). Although the report is not in the record, other records show the claimant went
to the emergency room with complaints of back pain eleven days prior to her on-the-job
injury. (Tr. 212). One of the claimant’s physicians opined that the July 1, 2006 injury
was likely an aggravation of the injury that occurred shortly beforehand. (Tr. 212).
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The claimant’s treating physician, Dr. Beth Leader, completed a history and
physical statement of the claimant, finding that the claimant had been temporarily totally
disabled as the result of her injury, that she had sustained a permanent anatomical
abnormality, and that she would endure additional permanent anatomical abnormality as
the result of the surgical intervention. (Tr. 230). A state consultative examiner, Dr.
Gordon B. Strom, found that the claimant still suffered from back pain despite an
apparently successful surgery, and that she demonstrated an inability to stand for any
length of time due to the pain. (Tr. 262). Dr. Strom further stated that the claimant’s
obesity contributed to her limited range of motion and inability to work. (Tr. 263).
At the administrative hearing, the ALJ asked the claimant about her work
following the alleged onset, and she indicated that she had worked part-time (four hours a
day, five days a week), until August 2007 which did not qualify as substantial gainful
activity.
(Tr. 24-25).
The claimant testified that she was receiving Workmen’s
Compensation benefits, that she still has pain in her back daily, that she could not recall
being pain-free any time since her surgery in 2007, that she lays down for two to three
hours a day, and that the pain also goes down into her right leg. (Tr. 26-27, 30-32).
Additionally, she stated that she also experiences numbness in her right leg, which causes
her to fall approximately once every two weeks, and that she gets muscle spasms almost
daily. (Tr. 32-34). She estimated that she could sit or stand an average of thirty minutes,
that standing any longer would cause muscle spasms in her lower back, and that she
could walk approximately fifty yards. (Tr. 35-36). The record also contained a “Work
Activity Questionnaire,” completed by Jessica Allen, from the nursing home where the
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claimant had worked part-time after her injury. Ms. Allen indicated that the claimant
regularly appeared for work and completed duties assigned to her, but that the claimant
had easier duties, fewer hours, more breaks, extra help, and frequent absences. She thus
rated the claimant’s productivity as 50% or less of other employees. (Tr. 160-161).
The ALJ noted the claimant’s allegation that she was unable to work due to her
back pain, but made no mention of her hearing testimony, then stated, “After careful
consideration of the evidence, I find that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.”
(Tr. 15).
The ALJ then summarized the medical
evidence, including Ms. Allen’s report, but gave that report little weight because it was
not completed by the claimant’s direct supervisor and the production level reported was
“not supported by the overall medical evidence of record.”
(Tr. 17).
He further
concluded that the claimant’s statements as to her daily activities were not entirely
credible and that she was not a credible witness because (i) the medical evidence did not
support her claims, and (ii) she stated that her injury occurred on the job, but another
doctor opined that it resulted from the injury that occurred days earlier at home. (Tr. 17).
Deference is generally given to an ALJ’s credibility determination, unless there is
an indication that the ALJ misread the medical evidence taken as a whole. See Casias,
933 F.2d at 801. In assessing a claimant’s complaints of pain, an ALJ may disregard a
claimant’s subjective complaints if unsupported by any clinical findings. See Frey v.
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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.
First, the ALJ mentioned but did not discuss the credibility factors set forth in
Social Security Ruling 96-7p and 20 C.F.R. §§ 404.1529, 416.929, and further failed to
apply them to the evidence.2 He was not required to perform a “formalistic factor-byfactor recitation of the evidence[,]” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000), but “simply ‘recit[ing] the factors’” is insufficient, Hardman, 362 F.3d at 678,
quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *4, and the ALJ did not even do that.
Second, the comment that “[t]he claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity assessment” showed an improper
approach to credibility. The ALJ should have first evaluated the claimant’s credibility
according to the above guidelines and only then formulated an appropriate RFC, not the
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 (July 2, 1996).
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other way around; instead, the ALJ apparently judged the claimant’s credibility according
to an already-determined RFC. See 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.”).
Last, the specific reasons given by the ALJ for finding that the claimant’s
subjective complaints were not credible are not entirely supported by the record. For
example, the ALJ stated in his written opinion that the claimant had “testified at the
hearing that she suffered an on-the-job injury which had caused the need for surgical
intervention,” but found that statement not credible because her doctor had found an athome injury to be the original cause of her injury. (Tr. 17). The ALJ thus ignored the
doctor’s own report that the claimant’s at-work injury had aggravated her earlier injury.
Further examination of such a “perceived” inconsistency indicates that the ALJ only cited
evidence favorable to his foregone conclusions and ignored evidence that did not support
his conclusions. See Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (“[I]n
addition to discussing the evidence supporting his decision, the ALJ also must discuss the
uncontroverted evidence he chooses not to rely upon, as well as significantly probative
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evidence he rejects.”), citing Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95
(9th Cir. 1984). See also Taylor v. Schweiker, 739 F.2d 1240, 1243 (7th Cir. 1984)
(“‘[A]n ALJ must weigh all the evidence and may not ignore evidence that suggests an
opposite conclusion.’”), quoting Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982).
Because the ALJ failed to analyze the claimant’s credibility in accordance with
Kepler and Hardman, the decision of the Commissioner should be reversed and the case
remanded to the ALJ for further analysis. On remand, the ALJ should properly analyze
the claimant’s credibility, and if such analysis requires any adjustment to the claimant’s
RFC on remand, the ALJ should re-determine what work she can perform, if any, and
whether she is disabled.
Conclusion
In summary, the Court FINDS that correct legal standards were not applied by the
ALJ, and the Commissioner’s decision is therefore not supported by substantial evidence.
The Commissioner’s decision is accordingly REVERSED and the case REMANDED for
further proceedings consistent herewith.
DATED this 18th day of September, 2012.
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