Conway v. Social Security Administration

Filing 30

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
TONI M. CONWAY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,1
Defendant.

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Case No. CIV-13-66-SPS

OPINION AND ORDER
The claimant Toni M. Conway requests judicial review of a denial of benefits by
the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g).
She appeals the Commissioner’s decision and asserts that the Administrative Law Judge
(“ALJ”) erred in determining she was not disabled. For the reasons discussed below, the
Commissioner’s decision is hereby REVERSED and the case 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 h[er] physical or mental impairment or impairments are of

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.

such severity that [s]he is not only unable to do h[er] previous work but cannot,
considering h[er] 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 she is not engaged in substantial gainful
activity. Step two requires the claimant to establish that she has a medically severe impairment
(or combination of impairments) that significantly limits her ability to do basic work activities.
If the claimant is engaged in substantial gainful activity, or her impairment is not medically
severe, disability benefits are denied. If she 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, she is regarded as disabled and
awarded benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where
the claimant must show that she lacks the residual functional capacity (“RFC”) to return to her
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 her age,
education, work experience, and RFC. Disability benefits are denied if the claimant can return to
any of her past relevant work or if her 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 August 19, 1965, and was forty-five years old at the most
recent administrative hearing (Tr. 104).

She completed her Associate’s Degree in

business data processing, and has worked as a real estate abstractor (Tr. 44, 104). The
claimant alleged that she has been unable to work since September 30, 2007, due to a
bulging torn disc in her neck, severe headaches, and depression (Tr. 242).
Procedural History
On June 18, 2009, the claimant applied for disability insurance benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401-434. Her application was denied. ALJ
Gene M. Kelly conducted an administrative hearing and determined that the claimant was
not disabled in a written opinion dated March 31, 2011 (Tr. 132-140), but he vacated that
opinion and ordered a supplemental hearing after he learned of a fact not known at the
time of the decision (Tr. 145). ALJ Kelly then held a second administrative hearing and
again determined that the claimant was not disabled in a written opinion dated September
16, 2011 (Tr. 21-34). The Appeals Council denied review, so the latter opinion is the
Commissioner’s final decision for purposes of this appeal. See 20 C.F.R. § 404.981.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant had the residual functional capacity (“RFC”) to perform a limited range of
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light work as defined in 20 C.F.R. § 416.967(b), i. e., she could lift/carry 20 pounds
occasionally, stand/walk six hours in thirty-minute intervals in an eight-hour workday,
and sit for six hours in an eight-hour workday at one-hour intervals. Additionally, the
ALJ found that the claimant had slight restrictions on bending and stooping; that she
could only occasionally squat, climb, kneel, crouch, or crawl; that her capacity for
pushing/pulling with the left upper extremity was limited; that she could reach over her
shoulders with her left and right upper extremities, twist, and nod her head only
occasionally; and that she had slight limitations in the ability to finger, feel, and grip. He
further found that she needed easy access to restrooms. He imposed the psychologicallybased limitations of limited contact with the public, co-workers, and supervisors; that her
work should be simple, repetitive, and routine; that if she were on an assembly line, she
must be granted ample room and not be expected to interact socially. The ALJ noted that
the claimant experienced mild to moderate pain that would be noticeable to her at all
times, but that she would nevertheless be able to remain attentive and responsive in a
work setting and could satisfactorily carry out work assignments. Finally, he noted that
she takes medications for symptom relief, but that her medications would not prevent her
from performing work at this RFC and remaining reasonably alert (Tr. 26). The ALJ
then concluded that although the claimant could not return to her past relevant work, she
was nevertheless not disabled because there was work in the regional and national
economy that she could perform, i. e., bench assembler, card assembler, and clerical
mailer (Tr. 34).

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Review
The claimant contends that the ALJ erred: (i) by failing to properly weigh the
opinion of her neurologist, Dr. Jorge Gonzalez; (ii) by failing to properly assess her RFC,
in particularly failing to find limitations related to bladder impairments and headaches;
(iii) by finding there was work she could perform; and (iv) by failing to properly evaluate
her credibility. The Court finds the claimant’s fourth dispositive, i. e., the ALJ failed to
properly evaluate the claimant’s credibility, and the decision of the Commissioner must
therefore be reversed and the case remanded for further proceedings.
The ALJ found that the claimant had the severe impairments of neck, headaches,
bladder, kidney, left shoulder, left arm, hands, depression, anxiety, and pain disorder (Tr.
23). As relevant to this appeal, the medical evidence reveals that the claimant had C3-C6
annular disk tears, which Dr. Gonzalez found to be a likely pain generator for the
claimant’s neck pain (Tr. 366). She received a number of trigger point injections to treat
this pain (Tr. 376-381, 489-502, 610-617, 639-642). She underwent a cervical disc
fusion at C3-4, 4-5, and 5-6 in February 2010, and went through physical therapy for
evaluation and intervention related to cervical degenerative disc disease (Tr. 562-568).
As to her mental impairments, the claimant’s treating physician prescribed her
anti-depressant medications, and consistently noted depression as one of her diagnoses
(Tr. 385-457). Additionally, consultative examiner Denise LeGrand, Ph.D., performed
mental status/diagnostic exams of the claimant on December 3, 2009 and in January 2011
(Tr. 518-523, 589-595). In 2009, Dr. LeGrand provided a differential diagnosis of major
depressive disorder moderate, and pain disorder due to general medical condition, and
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assigned the claimant a Global Assessment of Functioning (GAF) score of 50 (Tr. 521).
Dr. LeGrand also stated in her assessment, “From a psychological standpoint, based on
her reported symptoms, history, and performance on this exam, her ability to perform
adequately in most job situations, handle the stress of a work setting and deal with
supervisors or co-workers is estimated to be low average” (Tr. 522). At the January 2011
exam, Dr. LeGrand administered, inter alia, the Wechsler Memory Scale and the WideRange Achievement Test – Third Edition (WRAT-III).

She provided the same

differential diagnosis as she had in 2009, including the GAF score of 50 (Tr. 594). She
found that the claimant’s judgment was estimated to be “adequate,” “[b]ased on her
overall cognitive level, her ability to think abstractly, and her ability to function
appropriately socially and emotionally” (Tr. 595). She noted, however, that the claimant
had mild to moderate impairments in other activities of daily living, the ability to
adapt/cope with a low-demand, entry-level job, and the ability to handle the stress of a
work environment (Tr. 594-595). At both assessments, she stated that the claimant’s
condition was not likely to improve significantly in the next 12 months (Tr. 522, 595). In
January 2010, Dr. David Hansen conducted a neuropsychological evaluation of the
claimant, and conducted a battery of tests.

Related to her personality/emotional

functioning, Dr. Hansen stated that the claimant reported “symptoms that suggest an
interplay between emotional and physiological functioning. It is not uncommon for
individuals with chronic pain conditions to experience a cyclic exacerbating relationship
between their pain and symptoms of depression. It does appear that Ms. Conway is
experiencing such a cyclic relationship with each condition exacerbating the other,” but
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he also noted that the claimant endorsed a high percentage of perceived disability (Tr.
572). His diagnosis included major depression recurrent and of moderate severity, pain
disorder with psychological and physiological features, as well as headaches, cervical
spine pain, and tobaccoism (Tr. 572).
At the administrative hearings, the claimant testified as to her listed impairments
(Tr. 47-50). She testified that she used to knit, but that she can no longer do so because
of the pain in her neck and arms (Tr. 52-53). In explanation, she stated that her fingers
will go numb after about fifteen minutes of use, that the pain spreads to her left shoulder
as well, and that she was not able to knit, crochet, or scrapbook anymore (Tr. 53-54, 6263). She further testified that she could not change out a light bulb overhead with her left
hand because she cannot hold it up that long (Tr. 55). She stated that she has to make
lists because she has difficulty remembering things and appointments (Tr. 58). She also
testified that her medications cause drowsiness (Tr. 59-60). As to her neck, she stated
that she cannot look down and has to compensate by tilting her body forward do see (Tr.
68). Her mother also testified, stating that she sees her daughter at least weekly in her
daughter’s home, that the claimant is often sitting back in her recliner, and that she no
longer does her hobbies of sewing, crocheting, knitting, or scrapbooking (Tr. 79). She
further testified that she sometimes takes her daughter grocery shopping, but has to push
the cart and reach on high shelves because the claimant gets tired and cannot reach up
high (Tr. 79). At the second hearing, the claimant against testified as to her impairments.
She stated that her headaches were no longer constant after the neck surgery, but that the
surgery had not relieved her neck pain or arm problems (Tr. 107). As to her urinary
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frequency, she testified that she was living with the condition because there was not
anything they could do about it (Tr. 111). She testified that she has help at the grocery
store because she cannot push the cart herself (Tr. 115). She again testified that she no
longer crafts, scrapbooks, knits, sews, or crochets, because she cannot hold the hooks or
the needles or do that kind of work (Tr. 117). The claimant’s mother testified a second
time to much the same information as before, and further stated that the claimant had
been born with a kidney problem that contributed to her stress incontinence, and that the
claimant exhibited pain and depression by not wanting to leave her home (Tr. 119-120).
In his written opinion, the ALJ summarized the claimant’s hearing testimony, her
mother’s testimony, and much of the medical record, then stated, “After careful
consideration of the evidence, the undersigned finds that the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” He noted that the claimant had stayed
focused during Dr. Hansen’s evaluation and speculated that her depression and anxiety
“should retreat.” The ALJ gave great weight to the opinions of Dr. LeGrand and Dr.
Hansen and found that the claimant was not disabled (Tr. 138).
As discussed above, the claimant contends that the ALJ failed to properly evaluate
her credibility. 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).
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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.’”3 Hardman v. Barnhart, 362 F.3d 676, 678 (10th Cir.
2004), quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *4.
The Court finds that the ALJ failed to properly evaluate the claimant’s credibility
in accordance with the foregoing standards. First, the conclusory comment that “[t]he
claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above residual
functional capacity assessment” indicates an improper approach to analyzing credibility,
i. e., the ALJ apparently formulated the claimant’s RFC and then judged her credibility
for consistency therewith, when he should have first evaluated the claimant’s credibility
according to the above guidelines and only then formulated an appropriate RFC, not the
other way around. See, e. g., Bjornson v. Astrue, 2012 WL 280736 at *4-5 (7th Cir. Jan.
31, 2012) (slip op.) (in addressing nearly identical language, “[T]he passage implies that
ability to work is determined first and is then used to determine the claimant's credibility.
3

The factors to consider in assessing a claimant’s credibility are: (1) daily activities; (2)
the location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken; (5) treatment for pain relief aside from medication; (6) any other
measures the claimant uses or has used to relieve pain or other symptoms; (7) any other factors
concerning functional limitations. Soc. Sec. Rul. 96-7p at *3, 1996 WL 374186 (July 2, 1996).
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That gets things backwards. The administrative law judge based his conclusion that
Bjornson can do sedentary work on his determination that she was exaggerating the
severity of her headaches. Doubts about credibility were thus critical to his assessment of
ability to work, yet the boilerplate implies that the determination of credibility is deferred
until ability to work is assessed without regard to credibility, even though it often can't
be.”). Second, despite mentioning Soc. Sec. Rul. 06-03p and Soc. Sec. R. 96-7p, and
acknowledging that a credibility finding must be made, the ALJ wholly failed to perform
the requisite analysis in his written opinion (Tr. 24).
The ALJ likewise failed to evaluate the testimony of the claimant’s mother at the
administrative hearing. Social Security Ruling 06-3p (SSR 06-03p) provides the relevant
guidelines for the ALJ to follow in evaluating “other source” opinions from non-medical
sources like the claimant’s mother, who has not seen the claimant in her professional
capacity. See Soc. Sec. Rul. 06-03p, 2006 WL 2329939. SSR 06-03p 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 recited parts of the testimony of
the claimant’s mother, he did not evaluate it in accordance with the factors set out in SSR
06-03p and gave no reasons for either adopting or discrediting her statements in this case.
The ALJ’s task in evaluating the credibility of lay witness testimony is 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
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statements, he did nothing more than acknowledge that they existed, much less explain
his findings with regard to her testimony. See Kepler, 68 F.3d at 391 (The ALJ must
“explain why the specific evidence relevant to each factor led him to conclude claimant’s
subjective complaints were not credible.”).
Because the ALJ failed to analyze the claimant’s credibility in accordance with
Kepler and Hardman, and the claimant’s mother’s testimony in accordance with SSR 0603p, the decision of the Commissioner must be reversed and the case remanded to the
ALJ for further analysis. If on remand there is any adjustment to the claimant’s RFC, the
ALJ should re-determine what work, if any, the claimant can perform and ultimately
whether she 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.
Accordingly, the decision of the Commissioner is hereby REVERSED, and the case is
REMANDED for further proceedings consistent with this Opinion and Order.
DATED this 31st day of March, 2014.

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