Tiger v. Social Security Administration

Filing 18

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
RICHMOND D. TIGER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,1
Defendant.

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Case No. CIV-12-464-SPS

OPINION AND ORDER
The claimant Richmond D. Tiger requests judicial review of a denial of benefits
by the Commissioner of the Social Security Administration pursuant to 42 U.S.C.
§ 405(g). He appeals the Commissioner’s decision and asserts the Administrative Law
Judge (“ALJ”) erred in determining he was not disabled. For the reasons set forth below,
the Commissioner’s decision is hereby REVERSED and the case is 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). A claimant is disabled under the
Social Security Act “only if his physical or mental impairment or impairments are of such
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.

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 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
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. Secretary of Health & Human Services, 933 F.2d 799,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
2

Step one requires the claimant to establish that he is not engaged in substantial gainful
activity. 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. If
the claimant is engaged in substantial gainful activity, or his impairment is not medically severe,
disability benefits are denied. If he 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, he is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that he lacks the residual functional capacity (“RFC”) to return to his 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 his age, education, work
experience, and RFC. Disability benefits are denied if the claimant can return to any of his past
relevant work or if his RFC does not preclude alternative work. See generally Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

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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 October 25, 1965, and was forty-five years old at the time
of the administrative hearing (Tr. 32, 120). He completed the twelfth grade, and has past
relevant work as a fireplace helper, janitorial worker, and pizza cook (Tr. 27, 149). The
claimant alleges that he has been unable to work since June 26, 2009, because of bipolar
disorder, psychotic features of obsessive compulsive disorder, inability to concentrate,
heart problems, high blood pressure, high cholesterol, chest pains, knee injury with past
reconstructive surgery, arthritis, acid reflux, and painful knots on his hand (Tr. 148).
Procedural History
On June 1, 2010, the claimant applied for supplemental security income benefits
under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. His application was
denied. ALJ J. Dell Gordon conducted an administrative hearing and determined that the
claimant was not disabled in a written opinion dated August 16, 2011 (Tr. 11-29). The
Appeals Council denied review, so the ALJ’s opinion represents the final decision of the
Commissioner for purposes of this appeal. See 20 C.F.R. § 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 retained the residual functional capacity (RFC) to perform medium work as
defined by 20 C.F.R. § 416.967(b), limited to simple tasks with routine supervision and
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no interaction with the general public (Tr. 20). The ALJ concluded that although the
claimant could not return to past relevant work, he was nevertheless not disabled because
there was other work that he could perform, i. e., hand packer, small parts assembler, and
garment assembler (Tr. 28).
Review
The claimant contends that the ALJ erred: (i) because his opinion was so deficient
it cannot serve as substantial evidence to support a denial of benefits; (ii) by failing to
evaluate medical evidence properly, particularly evidence from his counselor, James Fox;
and (iii) by failing to account for his obesity. Because the Court finds that the ALJ failed
to properly evaluate evidence as to the claimant’s mental impairments, the decision of the
Commissioner must be reversed and the case remanded for further proceedings.
The medical record contains substantial evidence that the claimant suffers from bipolar disorder and obsessive-compulsive disorder. “Where there is evidence of a mental
impairment that allegedly prevents a claimant from working, the [ALJ] must follow the
procedure for evaluating mental impairments set forth in 20 C.F.R. § [416.920a] and the
Listing of Impairments and document the procedure accordingly.” Cruse v. United States
Department of Health & Human Services, 49 F.3d 614, 617 (10th Cir. 1995), citing
Andrade v. Secretary of Health & Human Services, 985 F.2d 1045, 1048 (10th Cir.
1993). To properly apply this special psychological review technique (PRT), the ALJ
must first determine if the claimant has a “medically determinable mental impairment,”
20 C.F.R. § 416.920a(b)(1), and then determine the degree of function the claimant has
lost as a result of the impairment by assessing his level of functioning in four broad areas:
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(i) activities of daily living; (ii) social functioning; (iii) concentration, persistence, or
pace; and (iv) episodes of decompensation. 20 C.F.R. § 416.920a(c)(3). See also Cruse,
49 F.3d at 617. Furthermore, the ALJ must specifically document his PRT findings. See
Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994) (“[T]here must be competent
evidence in the record to support the conclusions recorded on the [PRT] form and the
ALJ must discuss in his opinion the evidence he considered in reaching the conclusions
expressed on the form.”), quoting Woody v. Secretary of Health and Human Services,
859 F.2d 1156, 1159 (3d Cir. 1988). See also 20 C.F.R. §§ 416.920a(e)(4) (“At the
administrative law judge hearing . . . the written decision must incorporate the pertinent
findings and conclusions based on the technique. The decision must show the significant
history, including examination and laboratory findings, and the functional limitations that
were considered in reaching a conclusion about the severity of the mental
impairment(s)”).
The ALJ attempted to apply the PRT in this case but failed to do so properly. For
example, instead of applying the PRT at the outset to determine whether the claimant had
any medically determinable mental impairments and then rating their severity according
to the PRT, the ALJ simply found at step two that the claimant’s severe impairments
were “bi-polar disorder” and “manic disorder with psychotic features” (Tr. 13). It is not
entirely clear what the ALJ intended here; none of the medical sources cited by the ALJ
assessed the claimant with “manic disorder with psychotic features,” and most did assess
him with obsessive-compulsive disorder, which the ALJ did not determine to be a severe
impairment. Nor did the ALJ discuss at this stage what weight he was giving to any of
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those medical sources, see, e. g., Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.
2004) (“An ALJ must evaluate every medical opinion in the record, although the weight
given each opinion will vary according to the relationship between the disability claimant
and the medical professional . . . An ALJ must also consider a series of specific factors in
determining what weight to give any medical opinion.”), citing Goatcher v. United States
Department of Health & Human Services, 52 F.3d 288, 290 (10th Cir. 1995), which only
heightens the difficulty in determining exactly what the ALJ had in mind.
In any event, the ALJ made no mention of the PRT until step three, when he used
it determine that none of the claimant’s mental impairments met a listed impairment. In
reaching this conclusion, the ALJ found that the claimant had only moderate limitations
in activities of daily living, social functioning, and concentration, persistence, or pace,
and no episodes of decompensation. These findings lent support to the ALJ’s alreadyreached conclusion that the claimant’s mental impairments were severe, see 20 C.F.R. §
416.920a(d)(1) (“If we rate the degree of your limitation in the first three functional areas
as ‘none’ or ‘mild’ and ‘none’ in the fourth area, we will generally conclude that your
impairment(s) is not severe[.]”), but the ALJ failed to discuss relevant evidence at odds
with these findings, e. g., medical sources indicating that the claimant’s limitations were
in some areas marked. But on the whole, the record does not seem to support any finding
that the claimant’s severe mental impairments met any listing.
Because the claimant’s severe mental impairments did not meet any listing, the
sequential evaluation proceeds to step four, where the ALJ was required to determine the
claimant’s mental (and physical) RFC. See 20 C.F.R. § 416.920a(d)(3) (“If we find that
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you have a severe mental impairment(s) that neither meets nor is equivalent in severity to
any listing, we will then assess your residual functional capacity.”). It is in this regard
that the ALJ’s written opinion was the most difficult to follow; for example, although he
inexplicably revisited steps two and three, the ALJ never again mentioned his findings in
the PRT when considering the degree of mental limitation suffered by the claimant. The
ALJ did eventually find that the claimant’s mental impairments required corresponding
limitations in his RFC: “The Administrative Law Judge added some mental residual
functioning and as such, the claimant can perform simple tasks with routine supervision;
can relate to supervisors and peers on a superficial work basis and can adapt to a work
situation” (Tr. 25), but the ALJ did not cite evidence supporting this finding or explain
how the claimant’s moderate difficulties in activities of daily living, social functioning,
and concentration, persistence or pace translated into the limitations included in the RFC.
Furthermore, the ALJ chose to ignore other probative evidence as to the limiting
nature of the claimant’s mental impairments. For example, the claimant was assessed
with some very low GAF scores, only one of which exceeded 50 upon discharge from a
five-day hospital stay. “[A] GAF score between 41 and 50 indicates [s]erious symptoms
(e. g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e. g., no friends, inability to
keep a job).” Lee v. Barnhart, 117 Fed. Appx. 674, 678 (10th Cir. 2004). “Although the
GAF rating may indicate problems that do not necessarily relate to the ability to hold a
job,” as the court stated in Oslin v. Barnhart, 69 Fed. Appx. 942, 947 (10th Cir. 2003),
“[a] GAF score of fifty or less . . . does suggest an inability to keep a job.” Lee, 117 Fed.
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Appx. at 678 [emphasis added], citing Oslin, 69 Fed. Appx. at 947. Thus, the ALJ should
have considered whether the claimant’s consistently substandard GAF scores were due to
occupational factors, see, e. g., Givens v. Astrue, 251 Fed. Appx. 561, 567 n. 4 (10th Cir.
2007) (“[T]he Commissioner argues that a low GAF score may indicate problems that do
not necessarily relate to the ability to hold a job [but] assuming this is true, the ALJ’s
decision does not indicate he reached the conclusion that Ms. Givens’ low GAF score
was due to non-occupationally-related factors.”), not simply reject them out of hand as “a
subjective, rather than objective measure [and therefore] not entitled to great weight in
making disability determinations” (Tr. 17).
Because the ALJ failed to properly evaluate the claimant’s mental impairments,
the decision of the Commissioner must be reversed and the case remanded to the ALJ for
further analysis. If such analysis results in any changes to the claimant’s RFC, the ALJ
should re-determine what work the claimant can perform, if any, and ultimately whether
he 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 decision of the Commissioner is hereby REVERSED and the case REMANDED to
the ALJ for further proceedings consistent herewith.
DATED this 31st day of March, 2014.

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