Vaden v. Social Security Administration
Filing
25
OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
PAMELA J. VADEN,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-12-401-KEW
OPINION AND ORDER
Plaintiff Pamela J. Vaden (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.
Claimant
appeals the decision of the Administrative Law Judge (“ALJ”) 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.
.
.”
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).
two inquiries:
This Court’s review is limited to
first, whether the decision was supported by
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’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” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) 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 (10th Cir. 1988).
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substantial
evidence;
and,
standards were applied.
second,
whether
the
correct
legal
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 re-weigh the evidence nor substitute its discretion
for that of the agency.
Casias v. Secretary 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 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
Claimant was born on September 29, 1958 and was 52 years old
at the time of the ALJ’s latest decision.
Claimant completed her
high school education. Claimant has worked in the past as a nurse’s
aide, medication aide, and secretary. Claimant alleges an inability
to work beginning September 5, 2006 due to limitations resulting
from migraine headaches, arthritis, back and knee pain, thyroid
3
problems, depression, and anxiety.
Procedural History
On March 16, 2009, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) of the
Social Security Act.
On May 6, 2010, Claimant protectively filed
for supplemental security income pursuant to Title XVI (42 U.S.C.
§
1381,
et
seq.)
of
the
Social
Security
Act.
Claimant’s
applications were denied initially and upon reconsideration.
October 27, 2010,
Administrative
Oklahoma.
Law
On
an administrative hearing was held before
Judge
(“ALJ”)
Trace
Baldwin
in
McAlester,
By decision dated January 24, 2011, the ALJ denied
Claimant’s requests for benefits.
The Appeals Council denied
review of the ALJ’s decision on July 26, 2012.
As a result, the
decision of the ALJ represents the Commissioner’s final decision
for purposes of further appeal.
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 determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform light work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
4
properly evaluate, consider, and weigh the medical evidence; (2)
failing
to
provide
the
vocational
expert
with
an
accurate
hypothetical question at step five; and (3) performing an improper
credibility analysis.
Consideration of the Medical Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of arthritis, major depressive disorder, and
generalized anxiety disorder.
(Tr. 23).
The ALJ determined
Claimant retained the RFC to perform light work by occasionally
lifting/carrying 20 pounds, frequently lifting/carrying 10 pounds,
standing and/or walking for 6 hours in an 8 hour workday, and
sitting for 6 hours in an 8 hour workday.
She had an unlimited
ability to push and pull including the operation of hand and foot
controls.
She was able to occasionally climb ramps and stairs, but
must avoid climbing ladders, ropes, and scaffolds.
She was able to
frequently balance, stoop, and crouch and occasionally kneel and
crawl.
She
had
no
manipulative,
environmental limitations.
visual,
communicative,
or
She could understand, remember, and
carry out simple work instructions.
She could also relate to co-
workers and supervisors on a superficial work basis.
However, she
should avoid working with the general public. She was able to adapt
to a work environment.
(Tr. 26).
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After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of cleaner/maid and
poultry dresser, which the vocational expert testified existed in
sufficient numbers nationally and regionally.
(Tr. 32).
therefore, concluded Claimant was not disabled.
The ALJ,
(Tr. 33).
Claimant contends the ALJ gave the findings of consultative
examiner Dr. Theresa Horton “great weight” while giving “little
weight” to the consultative examiner Dr. Joseph M. Schwartz.
Dr.
Horton completed a Mental Status Examination on July 7, 2009. She
found Claimant to have a friendly attitude, though cautious with
appropriate level of cooperation.
She was mildly anxious.
She
demonstrated that she often had problems with understanding simple
questions and further clarification had to be made in order for her
to understand and respond appropriately.
She walked into the
appointment without assistance, with no unusual gait, and appeared
to sit comfortably.
(Tr. 284).
Claimant’s thought processes were logical, organized and goal
directed, but slow.
She presented with a history of suicidal
ideation, but no attempts.
irrational worries.
She also presented with occasional
She presented to Dr. Horton with a limited
history of auditory/visual hallucinations.
She heard a baby crying
and her name called at night a few years ago, but it went away,
although she states it is beginning again.
6
She presented with
significant history of feeling as though others are watching and
judging her, and occasionally conspiring against her.
Her mood was
predominantly depressed and anxious and she rated her mood as 4 out
of 10.
Her affect was congruent and restricted.
Her concentration
was adequate with low average to borderline intelligence.
(Tr.
285).
Dr. Horton diagnosed Claimant with Major Depressive Disorder,
Recurrent, Moderate and Generalized Anxiety Disorder. She concluded
Claimant appeared capable of understanding, remembering and managing
simple instructions and tasks, but not complex.
Her pace was
somewhat slowed and likely would affect her level of productivity.
She appeared capable of social and emotional adjustment into some
small occupational and social settings.
in a high paced environment.
or populated work settings.
She likely would do poorly
She likely would do poorly in larger
(Tr. 286).
On October 12 and 20, 2010, Claimant was also evaluated by Dr.
Joseph M. Schwartz.
In the course of examining Claimant, he
reviewed her medical/psychiatric records, her psychosocial history,
conducted
a
clinical
interview,
performed
a
mental
status
examination, administered testing including the MCMI-III and MMPI-II
tests, similarities and comprehension off the WAIS-R test, Shipley-2
Abstract, Vocabulary, and Block Patterns, and evaluated the data in
accordance with his educational qualifications and 27 years of
7
clinical experience.
(Tr. 390).
Dr. Schwartz also completed a Mental Status form on Claimant.
He noted Claimant’s significant flat affect and demeanor; limited
eye contact; little to no spontaneous response; walked with a tired,
slow, retarded gait of major depression; sometimes misses daily
living tasks such as washing, brushing teeth; examination revealed
she
is
most
likely
a
functional
illiterate;
received
“social
promotion” in school; and she did not interact without prompting.
Dr. Schwartz found Claimant was anhedonia in appearance, demeanor,
and overall display of herself.
associated weight loss.
He found she had poor sleep with
He doubted her denial of hallucinations.
She was very suspicious of others, especially men.
appear to be malingering.
(Tr. 393).
She did not
Dr. Schwartz found Claimant
could not remember, focus and retain sufficiently to carry out the
simplest
of
tasks.
(Tr.
394).
He
diagnosed
Claimant
Schizoaffective Disorder, Major Depressive, recurrent.
with
Id.
Dr. Schwartz also completed a Mental RFC Assessment form on
Claimant.
He found she was severely limited in the areas of the
ability to understand and remember detailed instructions; ability
to carry out detailed instructions; ability to maintain attention
and concentration for extended periods; ability to sustain an
ordinary routine without special supervision; ability to work in
coordination with or proximity to others without being distracted
8
by them; 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; ability to accept instructions and respond appropriately
to criticism from supervisors; ability to respond appropriately to
changes in the work setting; and ability to travel in unfamiliar
places or use public transportation.
(Tr. 395-96).
Dr. Schwartz also found Claimant was markedly limited in the
areas of the ability to remember locations and work-like procedures;
ability to carry out very short and simple instructions; ability to
perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances; ability to make simple
work-related decisions; ability to get along with co-workers or
peers without distracting them or exhibiting behavior extremes; and
ability
to
precautions.
be
aware
of
normal
hazards
and
take
appropriate
Id.
In his decision, the ALJ found Dr. Schwartz’s opinion was given
“little weight.” He did so based upon his finding that (1) Claimant
saw Dr. Schwartz only 15 days prior to the administrative hearing;
(2) Dr. Schwartz “was presumably paid for his report”; and (3) Dr.
Schwartz’s clinical “emphasis” was on addiction, substance abuse,
geriatrics, forensic evaluations, closed head injuries, and gambling
addictions.
The ALJ also found his opinion was “overly restrictive
9
and in blatant contrast with the mental status examinations that
precede it.”
(Tr. 30-31).
Dr. Horton’s opinion was given “great weight.”
it was consistent with the record as a whole.
The ALJ found
(Tr. 30).
He
incorporated “appropriate limitations” into the RFC to accommodate
Dr. Horton’s proposed limitations.
Id.
The ALJ failed to properly account for the differentiation in
the treatment of these two reports.
Dr. Schwartz administered
objective testing to support his findings while Dr. Horton, who also
only
saw
Claimant
on
one
occasion,
did
no
such
testing.
Additionally, it may be presumed that all consultative examiners are
paid by someone and this provides a thin basis for rejecting Dr.
Schwartz’s findings.
In essence, the ALJ relies upon factors
outside of the reliability of the report itself to reject Dr.
Schwartz’s
opinion
when
those
outside
factors
do
not
form
a
justifiable reason for rejecting the opinion. Additionally, to the
extent the ALJ finds the opinion “in blatant contrast with the
mental status examinations that precede it,” the ALJ did not
specifically identify which examinations he contrasted with Dr.
Schwartz’s opinion.
Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996) (“[i]n the absence of ALJ findings supported by specific
weighing of the evidence, we cannot assess whether relevant evidence
adequately supports the ALJ's conclusion”); Kepler v. Chater, 68
10
F.3d 387, 391 (10th Cir.1 995) (ALJ's listing of factors he
considered was inadequate when court was “left to speculate what
specific evidence led the ALJ to [his conclusion]”).
Moreover, the ALJ failed to state the weight assigned to
various other reports in the record.
Dr. Kathleen A. Ward, a
consultative examiner, found Claimant suffered from a personality
disorder, NOS.
(Tr. 234).
The ALJ did not address Dr. Ward’s
report or the findings she made in his decision.
support the same finding made by Dr. Schwartz.
to
consider
every
medical
opinion
legitimate reasons for rejecting it.
758, 764 (10th Cir. 2003).
and
must
Her findings
The ALJ is required
provide
specific,
Doyle v. Barnhart, 331 F.3d
In weighing the opinion, the ALJ is
obligated to consider the factors in 20 C.F.R. §§ 404.1527(d) and
416.927(d).
As with other evidentiary matters, when an ALJ is considering
medical opinion evidence, it is the ALJ's role to weigh and resolve
evidentiary conflicts and inconsistencies.
See, e.g., Rutledge v.
Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851
F.2d 1244, 1247 (10th Cir. 1988).
On remand, the ALJ shall re-
evaluate the opinions of Dr. Schwartz and Dr. Ward, setting forth
the inconsistencies in the record, if any, and the weight afforded
each opinion.
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Step Five Findings
Since the opinion evidence is to be re-examined, the ALJ shall
also consider whether the totality of Claimant’s impairments and
limitations were included in the questioning of the vocational
expert on remand.
If additional questioning is required, the ALJ
shall obtain the appropriate vocational testimony to evaluate
Claimant’s employment prospects.
Credibility Determination
It is well-established that “findings as to credibility should
be closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.”
F.3d 387, 391 (10th Cir. 1995).
Kepler v. Chater, 68
“Credibility determinations are
peculiarly in the province of the finder of fact” and, as such,
will not be disturbed when supported by substantial evidence.
Id.
Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or
other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other
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symptoms; (6) any measures other than treatment the individual uses
or has used to relieve pain or other symptoms (e.g., lying flat on
his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) any other factors concerning the
individual's functional limitations and restrictions due to pain or
other symptoms.
Soc. Sec. R. 96-7p; 1996 WL 374186, 3.
An ALJ cannot satisfy his obligation to gauge a claimant’s
credibility by merely making conclusory findings and must give
reasons
for
the
determination
Kepler, 68 F.3d at 391.
based
upon
specific
evidence.
However, it must also be noted that the
ALJ is not required to engage in a “formalistic factor-by-factor
recitation of the evidence.”
Qualls v. Apfel, 206 F.3d 1368, 1372
(10th Cir. 2000).
Claimant’s testimony on restrictions upon his activities of
daily living would be substantially supported by Dr. Schwartz’s
findings. On remand, the ALJ shall consider whether a reassessment
of Claimant’s credibility is in order once a re-evaluation of Dr.
Schwartz’s opinion has occurred.
Conclusion
The
decision
of
the
Commissioner
is
not
supported
by
substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
13
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 Order.
IT IS SO ORDERED this 24th day of March, 2014.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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