Griffin 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
JANICE K. GRIFFIN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,1
Defendant.
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Case No. CIV-12-91-SPS
OPINION AND ORDER
The claimant Janice K. Griffin 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 Commissioner’s
decision is REVERSED and the case is 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
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.
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, 416.920.2
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
2
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 the claimant to
establish that he has a medically severe impairment (or combination of impairments) that
significantly limits his ability to do basic work activities. Id. §§ 404.1521, 416.921. If the
claimant is engaged in substantial gainful activity, or if his 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), he 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 his 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
his 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).
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its discretion for that of the agency. Casias v. Secretary of Health & Human Services, 933
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 November 24, 1958, and she was fifty-one years old at
the time of the administrative hearing. She earned her GED and has past relevant work
as an inspector (Tr. 36, 48). The claimant initially alleged that she has been unable to
work since July 30, 2007, but her onset date was amended to February 14, 2009 at the
administrative hearing (Tr. 36). The claimant alleges she is unable to work because of
hepatitis C, a heart attack, arthritis in her knees, and asthma (Tr. 144).
Procedural History
On February 11, 2009, the claimant applied for disabled widows 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 Michael A. Kirkpatrick conducted a hearing and
determined that the claimant was not disabled in a decision dated August 2, 2010. The
Appeals Council denied review, so the opinion is the final decision of the Commissioner
for purposes of this appeal. See 20 C.F.R. §§ 404.981, 416.1481.
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Decision of the Administrative Law Judge
The ALJ made his decision at step four of the sequential evaluation. He found that
the claimant had severe impairments (hypertension, asthma, chronic obstructive
pulmonary disease, hypothyroidism, hyperlipidemia, and hepatitis C) but retained the
residual functional capacity (“RFC”) to perform work light work as defined in 20 C.F.R.
§§ 404.1567(b); 416.967(b). The ALJ concluded that the claimant could return to her
past relevant work of inspector. Thus, the ALJ found that she was not disabled (Tr. 25).
Review
The claimant contends that the ALJ erred: (i) by failing to find that the claimant
had additional severe limitations at step two; (ii) by failing to properly analyze her RFC
at step four; and (iii) by failing to pose proper hypotheticals to the vocational expert. The
Court finds the claimant’s second contention persuasive.
State examining physician Dr. Mohammed Quadeer, M.D. evaluated the claimant
on March 26, 2009. The claimant reported a history of shortness of breath, COPD,
fatigue, weakness, nervousness, memory problems, a history of suicidal ideation, and low
back pain (Tr. 239). The claimant used a cane for ambulation, and Dr. Quadeer observed
diminished bilateral breath sounds and weak heel-toe walking (Tr. 240). Range of
motion in all joints was normal (Tr. 242-45).
State reviewing physician Dr. Janet Rogers, M.D. completed a Physical Residual
Functional Capacity Assessment on April 14, 2009 (Tr. 267-74). Dr. Rogers opined that
claimant was capable of occasionally lifting up to 20 pounds, frequently lifting up to 10
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pounds, standing/walking at least two hours in an eight-hour workday, and sitting at least
six hours in an eight-hour workday (Tr. 268).
Following Dr. Roger’s RFC Assessment, Dr. Thurma Fiegel, M.D. wrote that the
agency needed “to know why [the] cane [is] used and what speed, stability, and safety of
gait are with and without [the] cane since [Dr. Roger’s assessment] is decisional.” (Tr.
276). Here, Dr. Fiegel was referring to the fact that Dr. Roger’s assessment required a
finding of disability according to the grids considering claimant’s age (approaching
advanced age) and extremely limited work history. 20 C.F.R., pt. 404, subpt. P, app.2, §
201.00(g) (“Individuals approaching advanced age (age 50-54) may be significantly
limited in vocational adaptability if they are restricted to sedentary work. When such
individuals have no past work experience or can no longer perform vocationally relevant
past work an dhave no transferable skills, a finding of disabled ordinarily obtains.”).
Following Dr. Fiegel’s note, the claimant was evaluated by state examining
physician Dr. Jimmie W. Taylor, M.D.
Upon examination, Dr. Taylor found that
claimant’s back was stiff with some decrease in range of motion and noted that while the
claimant stated that she uses her cane all the time, her gait was wide based and stable
with no assistive device (Tr. 278). However, Dr. Taylor also noted that she had a weak
heel, toe, and tandem walk and a positive straight leg raise test (Tr. 278, 280).
State reviewing physician Dr. Thurma Fiegel then completed a Physical Residual
Functional Capacity Assessment on August 14, 2009 (Tr. 284-91). Dr. Fiegel’s findings
were consistent with light work, i. e., claimant could occasionally lift up to 20 pounds,
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frequently lift up to 10 pounds, stand/walk and sit for six hours in an eight-hour workday
(Tr. 285). Dr. Fiegel wrote that there was “no evidence of any disease process that would
limit [the claimant’s] gait” (Tr. 285-86).
The claimant argues that the ALJ failed to properly analyze the claimant’s RFC at
step four. Residual functional capacity is defined by the Social Security Regulations as
what a claimant is capable of doing despite his mental and physical limitations.
Davidson v. Secretary of Health & Human Services, 912 F.2d 1246, 1253 (10th Cir.
1990). RFC categories have been established based on the physical demands of various
kinds of work in the national economy. 20 C.F.R. § 404.1567. RFC is a medical
assessment based primarily on medical findings such as symptoms, signs, and laboratory
results.
Additionally, medical and non-medical sources also must be considered in
determining the RFC. 20 C.F.R. § 404.1545(a). When analyzing a claimant’s RFC,
Social Security Ruling 96-6p indicates that the ALJ “must consider and evaluate any
assessment of the individual’s RFC by a State agency medical or psychological
consultant and by other program physicians and psychologists.” 1996 WL 374180, at *4.
These opinions are to be treated as medical opinions from non-examining sources. Id. at
*2. Although the ALJ is not bound by a state agency physician’s determination, he
cannot ignore it and must explain the weight given to the opinion in his decision. Id. See
also Valdez v. Barnhart, 62 Fed. Appx. 838, 841 (10th Cir. 2003) (“If an ALJ intends to
rely on a non-examining source’s opinion, he must explain the weight he is giving it.”)
[unpublished opinion], citing 20 C.F.R. § 416.927(f)(2)(ii).
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In this case, the ALJ mentioned, but failed to properly analyze the opinions of
state examining physicians Dr. Quadeer and Dr. Taylor. More specifically, the ALJ
failed to indicate how their findings that the claimant had weak heel-toe walking, weak
tandem gait, and a positive straight leg raise test would impact the claimant’s ability to
stand and walk for six hours in an eight-hour workday. The ALJ did not reject any part
of either opinion and failed to reconcile those opinions (and the opinion of state
reviewing physician Dr. Janet Rodgers, who found that claimant could stand/walk for
only two hours in an eight-hour workday) with the opinion of state reviewing physician
Dr. Thurma Fiegel, on which the ALJ relied. Confere v. Astrue, 235 Fed. Appx. 701, 703
(10th Cir. 2007) (“The ALJ mentions Dr. Heinbecker’s assessment during his discussion
of the evidence . . . but he does not state that he is rejecting any part of it and gives no
indication as to why he would disregard [that part of] Dr. Heinbecker’s conclusion that
[was inconsistent with the ALJ’s RFC determination]. . . . The ALJ could not have
accepted and incorporated the opinions of the state agency physicians into his RFC
because his RFC directly conflicts with [their] assessment.”) [unpublished opinion]. This
was particularly important for the ALJ to do, as the claimant could be considered
disabled under 20 C.F.R., pt. 404, subpt. P, app.2, § 201.00(g). (“Individuals approaching
advanced age (age 50-54) may be significantly limited in vocational adaptability if they
are restricted to sedentary work. When such individuals have no past work experience or
can no longer perform vocationally relevant past work and have no transferable skills, a
finding of disabled ordinarily obtains.”).
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In addition, the ALJ inexplicably found that the claimant’s severe impairments of
COPD and asthma had no impact on the claimant’s RFC at step four. Timmons v.
Barnhart, 118 Fed. Appx. 349, 353 (10th Cir. 2004) (finding “the ALJ should have
explained how a ‘severe’ impairment at step two became ‘insignificant’ at step five.”)
[unpublished opinion].
A severe impairment, by definition, significantly impacts a
claimant’s ability to work, 20 C.F.R. §§ 404.1521, 416.921, and the claimant was
restricted from exposure to high environmental temperatures for periods in excess of two
hours as an inmate. The ALJ should have provided a proper analysis of claimant’s severe
impairments of COPD and asthma and how those impairments impacted the claimant’s
ability to perform substantial gainful activity. Givens v. Astrue, 251 Fed. Appx. 561, 566
(10th Cir. 2007) (noting that without proper explanation the ALJ erred when he
“concluded at step two of the analysis that Ms. Givens’ depression constituted a severe
impairment [and] [t]hat impairment had disappeared from his analysis . . . by the time he
reached step five.”) [unpublished opinion].
Because the ALJ failed to properly analyze the medical evidence of record as
explained supra, 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
RFC, the ALJ should re-determine what work the claimant can perform, if any, and
ultimately whether she is disabled.
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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 29th day of March, 2013.
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