Scroggins 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
GLENDA D. SCROGGINS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,1
Defendant.

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Case No. CIV-13-110-SPS

OPINION AND ORDER
The claimant Glenda D. Scroggins requests judicial review pursuant to 42 U.S.C.
§ 405 of the decision of the Commissioner of the Social Security Administration denying
her benefits under the Social Security Act. The claimant 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 decision of the Commissioner is
hereby reversed and the case 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 h[er] physical or mental impairment or impairments are of such
severity that [s]he is not only unable to do h[er] previous work but cannot, considering
1

On February 14, 2013, Carolyn 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.

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
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

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Step one requires the claimant to establish that she 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 she has a medically severe impairment (or combination of impairments) that
significantly limits her ability to do basic work activities. Id. §§ 404.1521, 416.921. If the
claimant is engaged in substantial gainful activity, or if her 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), she is determined to be disabled
without further inquiry. Otherwise, the evaluation proceeds to step four, where the claimant must
establish that she 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
her 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 June 22, 1964, and was forty-seven years old at the time
of the administrative hearing (Tr. 32). She has past relevant work as a companion (Tr.
26). The claimant alleges that she has been unable to work since March 31, 2010 due to
diabetes, depression, neuropathy, back pain, anxiety, and chronic sinus disease (Tr. 150).
Procedural History
The claimant applied for supplemental security insurance payments under Title
XVI of the Social Security Act, 42 U.S.C. §§ 1381-85 on April 1, 2010. Her application
was denied. ALJ Trace Baldwin conducted an administrative hearing and found that the
claimant was not disabled in a written opinion dated February 2, 2012 (Tr. 14-28). The
Appeals Council denied review, so the ALJ’s written opinion is the Commissioner’s final
decision for purposes of this appeal. See 20 C.F.R. § 416.981.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant could lift/carry up to ten pounds frequently, stand for up to two hours in an
eight-hour workday, and sit for six hours in an eight-hour workday (Tr. 20). The ALJ

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also found a number of non-exertional limitations, i. e., the claimant could: (i) operate
hand controls occasionally but not foot controls; (ii) climb ramps/stairs occasionally but
not ladders, ropes, and scaffolding; (iii) balance, stoop, kneel, crouch and crawl
occasionally; (iv) never work at heights, around moving equipment or machinery, or on
uneven or unstable surfaces; (v) perform simple and some complex tasks; and (vi) never
work around the general public (Tr. 20). The ALJ concluded that although claimant could
not return to her past relevant work, she was nevertheless not disabled because there was
other work she could perform, i. e., inspector, optical goods assembler, and hand suture
winder (Tr. 27-28).
Review
The claimant contends that the ALJ erred: (i) by failing to properly analyze the
medical evidence of record, in particular the opinions of treating physician Dr. Edward
Lee, M.D. and state agency physician Dr. Shalom Palacio-Hollmon, Ph.D.; and (ii) by
failing to properly analyze her credibility. Because the ALJ did fail to properly analyze
Dr. Lee’s opinion, the Commissioner’s decision must be reversed and the case remanded
for further proceedings.
The claimant began receiving treatment from Dr. Lee in May 2009. At that time,
the claimant complained of uncontrolled diabetes, neuropathy in her lower extremities,
and insomnia (Tr. 362). In July, Dr. Lee noted the claimant’s appearance was abnormal
and she had decreased range of motion in her left arm (Tr. 360). It was further noted in
December 2009 that the claimant had been beaten with a baseball bat and that her range

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of motion was decreased (Tr. 357). Her back and extremities were found to be abnormal
on numerous occasions (Tr. 356-57, 359, 361-62, 429-30, 432-35, 468, 469), and Dr. Lee
noted her neuropathy in March 2010 (Tr. 356). On examination, there were degenerative
changes in her cervical and lumbar spine, and degenerative osteophytes and intervertebral
disc space narrowing at L5-S1 (Tr. 455-456-58). Dr. Lee submitted a letter dated March
29, 2010 indicating the claimant was “totally disabled due to Insulin Dependent Diabetes
Mellitus, severe Diabetic Neuropathy, Chronic Pain, and severe Depression” (Tr. 248).
Dr. Lee also submitted a medical assessment of the claimant’s physical ability to
do work related activities, in which he found that the claimant could sit upright and stand
for one hour and walk for half an hour in an eight-hour workday. Dr. Lee opined that the
claimant could not work an eight-hour workday at any exertional level with or without a
sit-stand option. Dr. Lee also found that the claimant could lift less than ten pounds,
though not repetitively, and could not push or operate leg controls (Tr. 466).
Dr. Palacio-Hollman performed a mental status examination of the claimant on
August 16, 2010. The claimant related that her depression began following the death of
her father in 1997 and became worse after she developed diabetes and neuropathy (Tr.
363). The claimant told Dr. Palacio-Hollman that she did not care whether she lived or
died, that she suffered from panic attacks and lived a very isolated lifestyle (Tr. 363). The
claimant indicated she had been approved for social security disability but took a job
caring for a disabled person. She quit the job, however, due to depression (Tr. 363). Dr.
Palacio-Hollman noted that the claimant exhibited poor eye contact, had depressed mood,

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and an average fund of information (Tr. 364). Dr. Palacio-Hollman diagnoses were
major depression, recurrent, severe without psychotic features, generalized anxiety
disorder, and panic disorder without agoraphobia (Tr. 365). The claimant’s prognosis was
poor “due to pain and disability of her diabetic neuropathy,” and Dr. Palacio-Hollman
noted the claimant’s suicidal ideation, panic attacks, and social isolation (Tr. 365-66).
Medical opinions of a treating physician such as Dr. Lee are entitled to controlling
weight if “‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques [and] consistent with other substantial evidence in the record.’” See Langley
v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004), quoting Watkins v. Barnhart, 350
F.3d 1297, 1300 (10th Cir. 2003). Even if a treating physician’s opinions are not entitled
to controlling weight, the ALJ must nevertheless determine the proper weight to give
them by analyzing the factors set forth in 20 C.F.R. § 416.927. Id. at 1119 (“Even if a
treating physician’s opinion is not entitled to controlling weight, ‘[t]reating source
medical opinions are still entitled to deference and must be weighed using all of the
factors provided in [Section 416.927.’”), quoting Watkins, 350 F.3d at 1300. The factors
are: (i) the length of the treatment relationship and the frequency of examination; (ii) the
nature and extent of the treatment relationship, including the treatment provided and the
kind of examination or testing performed; (iii) the degree to which the physician’s
opinion is supported by relevant evidence; (iv) consistency between the opinion and the
record as a whole; (v) whether or not the physician is a specialist in the area upon which
an opinion is rendered; and (vi) other factors brought to the ALJ’s attention which tend to

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support or contradict the opinion. Watkins, 350 F.3d at 1300-01, citing Drapeau v.
Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001). Finally, if the ALJ decides to reject a
treating physician’s opinion entirely, “he must . . . give specific, legitimate reasons for
doing so[,]” id. at 1301, so it is “clear to any subsequent reviewers the weight [he] gave
to the treating source’s medical opinion and the reasons for that weight,” id. at 1300.
The ALJ gave little weight to Dr. Lee’s opinion concerning the claimant’s workrelated limitations and gave the following reasons: (i) his opinions were not supported by
or consistent with the medical record of evidence; (ii) Dr. Lee did not assign any physical
limitations during office visits; and (iii) it was probable that Dr. Lee’s opinion was based
on sympathy (Tr. 24). The ALJ’s analysis is legally deficient for several reasons. First,
the ALJ stated that he was assigning little weight to Dr. Lee’s opinion due to inconsistent
medical evidence but failed to specify any evidence that was inconsistent with Dr. Lee’s
opinion. See Wise v. Barnhart, 129 Fed. Appx. 443, 447 (10th Cir. 2005) (“The ALJ also
concluded that Dr. Houston’s opinion was inconsistent with the credible evidence of
record, but he fails to explain what those inconsistencies are.”). The ALJ also neglected
to mention evidence that was consistent with Dr. Lee’s opinion, e. g., treatment notes
indicating that the claimant had decreased range of motion in her extremities on several
occasions (Tr. 356-57, 429-30, 433-34, 468-69).
Second, it was clearly improper for the ALJ to rejected Dr. Lee’s opinion upon
speculation that he sympathized with the claimant “for one reason or another” (Tr. 24).
The Commissioner argues that the ALJ only mentioned this possibility, i. e., that he did

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not actually rely on it, but the Court is not convinced; it is difficult to imagine a reason
for mentioning this other than to explain the ALJ’s decision to discounting Dr. Lee’s
opinion. In any event, the Court finds error on the ALJ’s part in this regard. See, e. g.,
Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004) (“The ALJ also improperly
rejected Dr. Hjortsvang’s opinion based upon his own speculative conclusion that the
report was based only on claimant’s subjective complaints and was ‘an act of courtesy to
a patient.’ The ALJ had no legal nor evidentiary basis for either of these findings.
Nothing in Dr. Hjortsvang’s reports indicates he relied only on claimant’s subjective
complaints or that his report was merely an act of courtesy. ‘In choosing to reject the
treating physician’s assessment, an ALJ may not make speculative inferences from
medical reports and may reject a treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own credibility judgments,
speculation or lay opinion.’”), quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th
Cir. 2002) [emphasis in original].
Because the ALJ failed to properly evaluate the opinion of the claimant’s treating
physician, the decision of the Commissioner must be reversed and the case remanded to
the ALJ for a proper analysis. On remand, the ALJ should evaluate Dr. Lee’s opinion in
accordance with the appropriate standards and determine what impact such evaluation
has on the claimant’s RFC and ultimately whether she is disabled.

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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 herewith.
DATED this 31st day of March, 2014.

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