Sloan v. Social Security Administration
Filing
21
OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MIKEL D. SLOAN 1
)
)
)
)
)
)
)
)
)
)
)
Plaintiff 1
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-11-446-KEW
OPINION AND ORDER
Plaintiff Mikel D. Sloan (the "Claimant'
1
)
requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the "Commissioner 11 ) denying Claimant 1 s application
for disability benefits under the Social Security Act.
appeals the decision of the Administrative Law Judge
Claimant
("ALJ
11
)
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.
II
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 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 1 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 11 to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four 1 where claimant must establish that he
does not retain the residual functional capacity {"RFC 11 ) 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;
whether the
and
Cir.
second,
whether
Hawkins v. Chater,
standards were applied.
(lOth
1
decision was
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."
Richardson v.
Perales 1 402 U.S.
Co.
v.
NLRB,
389, 401
(quoting
Consolidated Edison
(1938)).
The court may not re-weigh the evidence nor substitute
its discretion for that of the agency.
Health
& Human
Servs.
1
933
F.2d
799,
305
U.S.
(1971)
197,
229
Casias v. Secretary of
800
(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
1
'
Corp. v. NLRB, 340 U.S. 474 1 488 (1951); see also
1
Casias, 933 F.2d
at 800-01.
Claimant's Background
Claimant was born on November 26, 1957 and was 52 years old at
the time of the ALJ 1 s decision.
Claimant completed his education
through the eighth grade and was enrolled in special education
classes throughout his schooling.
3
Claimant worked in the past as
a construction worker and a salvage worker.
inability to work beginning January 1
resulting
from a
Claimant alleges an
2008 due to limitations·
1
polyp/tumor in his nose which causes
breathing problems
1
shortness of breath 1
severe
frequent nose bleeds,
problems feeling like he is going to pass out, and problems dealing
with humidity, heat, dust, and fumes.
Claimant also contends he
suffers from depression, headaches 1 inability to read or write more
than his
name
problems,
hernia,
1
memory problems
1
back problems,
concentration problems
1
problems using his hands
sleep
1
and
problems with swelling, pain, and weakness in his legs.
Procedura1 History
On May 8,
2009, 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
1381, et seq.) of the Social Security Act.
(42 U.S.C.
§
Claimant's applications
were denied initially and upon reconsideration.
On June 30, 2010,
an administrative hearing was held before ALJ Charles Headrick in
Tulsa, Oklahoma.
decision.
1
2010, the ALJ issued an unfavorable
On November 1, 2011, the Appeals Council denied review
of the ALJ 1 s
represents
On July 30
decision.
the
further appeal.
As a
Commissioner's
20 C.F.R.
§§
result,
final
the decision of the ALJ
decision
404.981 1 416.1481.
4
for
purposes
of
Decision of the Administrative Law Judqe
The ALJ made his decision at step five of the sequential
evaluation.
He determined that while Claimant suffered from severe
impairments, he did not meet a listing and retained the residual
functional capacity ("RFC
11
)
to perform a full range of medium work
with limitations.
Errors
~leqed
for Review
Claimant asserts the ALJ committed error in (1)
adequately
develop
the
record
regarding
failing to
Claimant's
mental
impairmentsi and (2) failing to properly consider the opinion of a
consultative
examiner
regarding
the
work-related
impact
of
Claimant's mental impairments.
Development of the Medical Record
In his decision,
severe
("COPD 11 )
impairments
and obesity.
of
the ALJ found Claimant suffered from the
Chronic
Obstructive
(Tr. 12).
Pulmonary
Disorder
He determined Claimant retained
the RFC to perform a full range of medium work except that he could
climb stairs and ramps, ladders, scaffolds, and ropes frequently
and balance, kneel,
crouch, and crawl frequently but stoop only
occasionally.
13) .
(Tr.
After consultation with a vocational
expert, the ALJ determined Claimant retained the RFC to perform the
representative jobs of bench assembler and electronics assembler.
5
(Tr.
19) .
As
disabled.
a
result,
the
ALJ
concluded
Claimant
was
not
(Tr. 2 0) .
Claimant first contends the ALJ should have ordered additional
testing
of
examination.
her
including
IQ,
an
additional
consultative
Claimant bases this contention upon the opinion of
Dr. Beth Jeffries contained within her Mental Status Examination of
Claimant dated June 13, 2009.
Claimant reported to Dr. Jeffries
that he had no problems doing his activities of daily living but
His thought
stayed mostly with family rather than any friends.
processes were logical and goal directed.
oriented to person, place, and time.
simple calculations.
name
at
the
end of
He appeared to be fully
Claimant was not able to do
He was not able to remember the interviewer's
the
interview.
similarities between common objects.
He was
able
identify
He had difficulty reading.
Fund of information was in the very low range.
estimated to be in the borderline range.
the 70 range.
to
Intelligence is
His IQ was likely below
Claimant was not able to interpret common proverbs
and demonstrated concrete thought.
(Tr. 254) •
Claimant's judgment
appeared to be impaired and his insight into his problems appeared
to
be
mildly
impaired.
Dr.
Jeffries
diagnosed Claimant
Borderline Intellectual Functioning, provisional.
with
(Tr. 255) •
Additionally, Claimant's attorney indicated to the ALJ at the
hearing that Claimant's IQ problems noted by Dr. Jeffries together
6
with
his
other
problems
may
allow
him
to
meet
a
listing.
Claimant's attorney stated he need to prove Claimant's IQ.
closed
the
record
concerns.
without
acknowledging
Claimant's
The ALJ-
attorney's
(Tr. 50-51) .
Generally, the burden to prove disability in a social security
case is on the claimant, and to meet this burden, the claimant must
furnish
medical
disability.
and
other
evidence
Branam v. Barnhart,
of
the
existence
of
the
385 F.3d 1268, 1271 (lOth Cir.
2004) citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
A social
security disability hearing is nonadversarial, however, and the ALJ
bears
responsibility for ensuring that
"an adequate
record is
developed during the disability hearing consistent with the issues
raised.
11
Id. quoting Henrie v. United States Dep't of Health &
Human Services, 13 F.3d 359, 360-61 (lOth Cir. 1993).
" [a] n
ALJ
has
the
duty
to
develop
the
record
As a result,
by
obtaining
pertinent, available medical records which come to his attention
during the course of the hearing."
Id. quoting Carter v. Chater,
73 F.3d 1019, 1022 (lOth Cir. 1996).
This duty exists even when a
claimant is represented by counsel.
Human Services,
5 F.3d 476,
480
Baca v. Dept. of Health &
(lOth Cir.
1993).
The court,
however, is not required to act as a claimant's advocate.
Henrie,
13 F.3d at 361.
The
duty
to
develop
the
7
record
extends
to
ordering
consultative examinations and testing where required.
Consultative
examinations are used to usecure needed medical evidence the file
does not contain such as clinical findings,
diagnosis
or prognosis
416.919a(2).
necessary for
laboratory tests,
a
20
§
decision.
11
C.F.R.
Normally, a consultative examination is required if
(1) The additional evidence needed is not contained in
the records of your medical sources;
(2) The evidence that may have been available from your
treating or other medical sources cannot be obtained for
reasons beyond your control,
( 3) Highly technical or specialized medical evidence that
we need is not available from your treating or other
medical sources;
(4) A conflict, inconsistency, ambiguity or insufficiency
in the evidence must be resolved, and we are unable to do
so by recontacting your medical source; or
(5) There is an indication of a change in your condition
that is likely to affect your ability to work.
20 C.F.R.
§
416.909a(2) (b).
In this instance, the ALJ acknowledged Dr. Jeffries' report.
(Tr. 17).
However, he did not include any limitations in his RFC
evaluation for mental impairments.
Since no other medical evidence
existed in the record to assist the ALJ in determining the full
extent
of
Claimant's
intellectual
limitations,
a
consultative
examination with complete intelligence testing should have been
obtained.
Claimant met his burden of demonstrating a reasonable
8
possibility that a severe impairment to his intellectual capacity
existed.
1997).
Hawkins v.
Chater,
113 F.3d 1162,
1167-68
(lOth Cir.
Moreover, Claimant's counsel alerted the ALJ to the fact
that the medical record was lacking in intellectual functioning
testing and that the possibility existed that Claimant would meet
a listing if the testing showed a low IQ.
On remand, the ALJ shall
obtain such testing and consultative examinations as are necessary
to ascertain the extent of Claimant 1 s intellectual limitations and
their effect upon his ability to engage in work-related activities.
Consideration of Dr. Jeffries' Opinion
Claimant also contends the ALJ should have made some provision
for the limitations Dr.
Jeffries found in regard to Claimant 1 s
intellectual functioning.
As this Court has stated 1 the ALJ noted
Dr. Jeffries' opinion but did not state the weight given to the
opinion or reference any of the limitations found by Dr. Jeffries
in Claimant's RFC.
opinion/
its
On remand, the ALJ shall consider Dr. Jeffries'
impact upon Claimant's ability to engage
in work
activities, and the weight given to the opinion.
Conclusion
The
decision
substantial
applied.
of
the
Commissioner
evidence and the
Therefore,
correct
legal
this Court finds,
9
is
not
supported
standards were
by
not
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
REVERSED and the matter REMANDED for further proceedings consistent
with this Opinion and
IT IS SO ORDERED
Order.~~
j
this-~--- ay of March, 2013.
ST
MAGISTRATE JUDGE
10
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?