Jones v. Social Security Administration

Filing 21

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
RAYMOND JONES,
on behalf of R.A.J.,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,1
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-12-13-SPS

OPINION AND ORDER
The claimant Raymond Jones requests judicial review pursuant to 42 U.S.C. §
405(g) of the decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying benefits for his son R.A.J. under the Social Security Act. The
claimant appeals the decision of the Commissioner and asserts that the Administrative
Law Judge (“ALJ”) erred in determining that R.A.J. was not disabled. For the reasons
discussed below, the Commissioner’s decision should be REVERSED AND
REMANDED.
Social Security Law and Standard of Review
Disability for persons under the age of 18 according to the Social Security Act is
defined as a medically determinable physical or mental impairment that causes marked
and severe functional limitations that can be expected to cause death or that have lasted

1

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. In accordance with Fed. R. Civ. P. 25(d), Ms. Colvin is substituted for Michael J.
Astrue as the Defendant in this action.

or can be expected to last for a continuous period of not less than twelve months. 20
C.F.R. § 416.906. Social Security Regulations implement a three-step sequential process
to evaluate a claim for Child’s Supplemental Security Income Benefits under Title XVI
of the Social Security Act.1
Judicial review of the Commissioner’s determination is limited in scope by 42
U.S.C. § 405(g) to two inquiries: first, whether the decision is supported by substantial
evidence; and second, whether the correct legal standards were applied. Hawkins v.
Chater, 114 F.3d 1162, 1164 (10th Cir. 1997) [citation omitted]. The term substantial
evidence means “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. Sec’y 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 whether the record detracts from its

1

Step one requires claimant establish he is not engaged in substantial gainful activity, as
defined by 20 C.F.R. §§ 416.971-416.976. Step two requires claimant establish he has a severe
impairment or combination of impairments. If claimant is engaged in substantial gainful activity
or is found not to have a medically determinable impairment or the impairment causes a slight
abnormality or combination of slight abnormalities resulting in no more than minimal functional
limitations, he is considered not disabled. At step three, claimant’s impairment must meet,
medically equal, or functionally equal the severity of an impairment in the listing of impairments
found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed impairment or
impairments that meet or medically equal the requirements of the listing or that functionally
equal the listing and meet the duration requirement will be found disabled. See 20 C.F.R. §
416.924(a)-(d)(2).
-2- 

weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also Casias
933 F.2d at 800-801.
Background and Procedural History
R.A.J. was born on August 24, 1999, and was ten years old at the time of the
administrative hearing. The claimant alleges R.A.J. was disabled as of August 24, 2005,
because of a learning problem. The claimant filed an application for supplemental
security income benefits under Title XVI (42 U.S.C. § 1381 et seq.) on February 24,
2009, which application was denied. After a hearing on April 5, 2010, ALJ Osly F.
Deramus found R.A.J. was not disabled in a decision dated August 3, 2010. The Appeals
Council denied review, so the ALJ’s findings represent the Commissioner’s final decision
for purposes of this appeal. 20 C.F.R. § 416.1481.
 Decision of the Administrative Law Judge
The ALJ made his decision at step three of the sequential evaluation.

He

determined R.A.J. had severe impairments, i. e., learning disorder and status post closed
reduction and long leg casting of the right tibia and fibula, but that such impairments did
not meet, medically equal, and were not functionally equivalent to any of the relevant
listings. The ALJ concluded that R.A.J. was therefore not disabled (Tr. 24).
Review
The claimant contends that the ALJ erred: i) by failing to fulfill his duty to
develop the record and ii) by failing to properly analyze the credibility of R.A.J. and his
parents. The Court finds that the ALJ did fail to properly analyze the credibility of
R.A.J.’s father, Mr. Raymond Jones.
-3- 

R.A.J.’s father Raymond Jones completed a form entitled Function Report-Child
Age 6-12 Birthday (Tr. 71-80). In that form, Mr. Jones wrote that R.A.J. is unable to
deliver telephone messages, repeat stories he has heard, tell jokes or riddles accurately,
and explain why he did something (Tr. 74). Mr. Jones also related that R.A.J. has
difficulties in the following categories related to his ability to progress in learning: i)
reading simple words; ii) reading and understanding simple sentences; iii) reading and
understanding stories in books or magazines; iv) writing in longhand; v) spelling most 34 letter words; vi) writing a simple story with 607 sentences; vii) adding and subtracting
numbers over 10; viii) knowing the days of the week and months of the year; ix)
understanding money; x) and telling time (Tr. 75). Finally, Mr. Jones remarked that
R.A.J. is unable to keep busy on his own, finish things he starts, work on arts and crafts
projects, complete homework, and complete chores most of the time (Tr. 79).
State examining physician Dr. Randy L. Crittenden, Ph.D. performed a
psychological evaluation on R.A.J. on April 21, 2009 (Tr. 195-200). Dr. Crittenden
noted that the information provided by R.A.J.’s parents on the Disability Report-Child
Form “was consistent with clinical impression and evidence provided” (Tr. 195). Upon
observation, Dr. Crittenden noted that R.A.J. “interacted in a socially appropriate,
cooperative and friendly manner,” “persisted at tasks in a timely manner with minimal
encouragement needed,” and “readily self[-]corrected” (Tr. 196). His verbal IQ score
was 71, performance IQ score was 75, and full scale IQ score was 71 (Tr. 197). Dr.
Crittenden found that R.A.J. could be categorized as functioning in the extremely low
category on freedom from distractibility, and his IQ scores were in the low borderline
-4- 

classification (Tr. 197).

His diagnostic impression was that R.A.J. had a learning

disorder, NOS, academic problem, and borderline intellectual functioning but that his
GAF was 65 (Tr. 197-98).
The claimant argues that the ALJ failed to properly analyze his credibility. The
Court agrees. Deference must be given to an ALJ’s credibility determination unless there
is an indication that the ALJ misread the medical evidence taken as a whole. Casias v.
Secretary of Health & Human Services, 933 F.2d 799, 801 (10th Cir. 1991). Further, an
ALJ may disregard a claimant’s subjective complaints of pain if unsupported by any
clinical findings. Frey v. 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.
With regard to credibility in this case, the ALJ assigned little weight to the
testimony and function report of Mr. Jones for the following reasons: i) as a lay witness,
Mr. Jones is considered a non-medical source and “cannot determine whether observed
behaviors are medically compelled; and ii) Mr. Jones’s testimony was inconsistent with
the medical evidence of record (Tr. 17). This analysis is deficient for several reasons.
Social Security Ruling 06-3p (SSR 06-3p) provides the relevant guidelines for the ALJ to
follow in evaluating “other source” opinions from non-medical sources, like the opinion
-5- 

of Mr. Jones, who have not seen the claimant in their professional capacity. See Soc.
Sec. Rul. 06-3p, 2006 WL 2329939. SSR 06-3p states, in part, that other source opinion
evidence should be evaluated by considering the following factors: i) nature and extent of
the relationship; ii) whether the evidence is consistent with other evidence; and iii) any
other factors that tend to support or refute the evidence. Soc. Sec. Rul. 06-03p, 2006 WL
2329939, at *6. While the ALJ mentioned the testimony and function report of Mr. Jones
in his opinion in general terms, he failed to properly evaluate them in accordance with the
factors set out in SSR 06-3p.
In the instant case, the ALJ rejected the claimant’s lay witness statements in part
on the basis that such witnesses are unable to determine whether a claimant’s complaints
are medically compelled, even if the opinion is sincere. The ALJ’s task in evaluating the
credibility of lay witness testimony is precisely to determine whether the witness’s
opinion is sincere or insincere, and then determine what weight, if any, to ascribe to the
opinion or testimony. While the ALJ did mention the lay witness statements and gave
reasons for discrediting the lay witness statements in this case, the first problem with his
reasoning is that it essentially consists of generalized statements that apply to every lay
witness opinion. See Spicer v. Astrue, 2010 WL 4176313, *2 (M.D. Ala. Oct. 18, 2010)
(finding that an ALJ’s rejection of a lay witness statement because it was not a substitute
for an appropriate medical opinion must not be based on a rationale that “applies with
equal force to every ‘lay statement.’”). See, c.f., Bruce v. Astrue, 557 F.3d 1113, 1115
(9th Cir. 2009) (“The ALJ found [claimant’s wife] credible in her observations of her

-6- 

husband's activities, and the ALJ should not have discredited her testimony on the basis
of its relevance or irrelevance to medical conclusions.”), citing 20 C.F.R. § 404.1513(d).
Next, the ALJ’s rejection of both R.A.J.’s and Mr. Jones’s testimony was
improper, as there is medical evidence in the record that supports said testimony and Mr.
Jones’s function report. 2 The ALJ rejected R.A.J.’s testimony with the following
language: “the statements concerning the intensity, persistence and limiting effects of the
claimant’s symptoms are not credible to the extent they are inconsistent with finding that
the claimant does not have an impairment or combination of impairments that
functionally equals the listings for the reasons explained below” (Tr. 17). The problem
with this analysis (apart from vagueness) is that the ALJ should have first evaluated the
claimant’s testimony (along with all the other evidence) according to the above
guidelines and then formulated an appropriate RFC, not the other way around, i. e., the
ALJ apparently judged the credibility of the claimant’s testimony by comparing it to a
pre-determined RFC. See McFerran v. Astrue, 2011 WL 3648222, *2-*3 (10th Cir. Aug.
19, 2011) (“The ALJ’s ultimate credibility determination is a singularly unhelpful
sentence: ‘[T]he claimant’s statements concerning the intensity, persistence and limiting
effects of [his] symptoms are not credible to the extent they are inconsistent with the . . .
residual functional capacity assessment.’ . . . The ALJ’s errors in the credibility

2

The ALJ probably should have evaluated Mr. Jones’s testimony in accordance with 20 C.F.R. §
416.928(a) (“If you are a child under age 18 and are unable to adequately describe your
symptom(s), we will accept as a statement of this symptom(s) the description given by the person
who is most familiar to you, such as a parent, other relative, or guardian.”) and SSR 96-7p, 1996
WL 374186 instead of as an lay witness opinion in accordance with SSR 06-3p, considering that
R.A.J. provided very limited testimony at the administrative hearing. Under either standard, the
ALJ’s analysis was insufficient for the reasons discussed in this opinion.
-7- 

assessment necessarily affect the RFC determination.”), [unpublished opinion], quoting
Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009).  
Further, “[w]here ‘[a] significant portion of the record evidence supports the
testimony, . . . the ALJ must explain why he has determined that the testimony is not
credible.

Standard boilerplate language will not suffice.’”

Smith ex rel E.S.D. v.

Barnhart, 157 Fed. Appx. 57, 62 (10th Cir. 2005), quoting Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001).

State examining physician Dr.

Crittenden found that R.A.J. was classified as having low borderline intellectual
functioning (supporting the domain of acquiring and using information) and scored in the
extremely low category on freedom from distractibility (supporting the domain of
attending and completing tasks). In addition, the function report completed by R.A.J.’s
teacher, Ms. Jeannie K. Loar, supports Mr. Jones’s testimony and function report. In
particular, the ALJ found that Ms. Loar opined that R.A.J. had problems functioning in
the domain of acquiring and using information, with serious or very serious problems in
the following categories: i) reading and comprehending written material; ii)
comprehending and doing math problems; iii) providing organized oral explanations and
adequate descriptions; and iv) recalling and applying previously learned material (Tr.
112). Ms. Loar further found that R.A.J. had problems functioning in the domain of
attending and completing tasks and is “easily distracted” (Tr. 113). The ALJ’s credibility
finding in this case is not “closely and affirmatively linked to substantial evidence” but is
instead an impermissible “conclusion in the guise of findings.” Huston v. Bowen, 838
F.2d 1125, 1133 (10th Cir. 1988) [footnote omitted]. See also, Hardman v. Barnhart,
-8- 

362 F.3d 676, 679 (10th Cir. 2004) (“[B]oilerplate language fails to inform us in a
meaningful, reviewable way of the specific evidence the ALJ considered in determining
that claimant’s complaints were not credible.”), citing Briggs ex rel. Briggs v. Massanari,
248 F.3d 1235, 1239 (10th Cir. 2001).
For the reasons set forth above, the Court concludes that the decision of the
Commissioner should be reversed and the case remanded to the ALJ for a proper
credibility analysis of R.A.J. and R.A.J.’s father, Raymond Jones. If such analysis results
in any adjustments to the step three findings regarding the domains of functioning, the
ALJ should re-determine whether he is disabled.
Conclusion
In summary, the Court finds that correct legal standards were not applied and the
decision of the Commissioner is therefore not supported by substantial evidence. Thus,
the decision of the Commissioner is REVERSED and the case REMANDED to the ALJ
for further proceedings consistent herewith.
DATED this 29th day of March, 2013.

-9-