Grabowski-Bridges v. Social Security Administration

Filing 21

OPINION AND ORDER by Magistrate Judge Steven P. Shreder reversing and remanding the decision of the ALJ(tmb, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
REBECCA C. GRABOWSKIBRIDGES,

)
)
)
Plaintiff,
)
)
v.
) Case No. CIV-13-178-SPS
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the Social )
Security Administration,
)
)
Defendant.
)
OPINION AND ORDER
The claimant Rebecca C. Grabowski-Bridges 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 the

Administrative Law Judge (“ALJ”) erred in determining she was not disabled. For the
reasons set forth below, the Commissioner’s decision is 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 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 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. 1
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
substantiality of evidence must take into account whatever in the record fairly detracts
1

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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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 January 16, 1974, and was thirty-six years old at the time
of the most recent administrative hearing (Tr. 484, 794). She completed her GED and
approximately 60 hours of college course work, and has worked as a receptionist, clerk
typist, and merchandise deliverer (Tr. 155, 796, 812). The claimant alleges she has been
unable to work since October 1, 2003, due to a fractured back, chronic pain, loss of use of
ankle, depression, and alcoholism (Tr. 149-150).
Procedural History
The claimant applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, and for supplemental security income benefits under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85, on October 28, 2004. Her
applications were denied. ALJ Lantz McClain conducted an administrative hearing and
determined that the claimant was not disabled in a written opinion dated August 23, 2007
(Tr. 16-25). The Appeals Council denied review, but this Court reversed in Case No.
CIV-08-142-KEW, and remanded the case to the ALJ with instructions to: (i) include all
the claimant’s impairments when questioning the vocational expert, (ii) properly evaluate
the treating physician opinion of Dr. Cross, and (iii) properly evaluate the claimant’s
credibility (Tr. 600-610). ALJ Michael A. Kirkpatrick conducted a second administrative
hearing and again determined that the claimant was not disabled in a written opinion
dated August 20, 2010 (Tr.580-597). The Appeals Council again denied review, so ALJ
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Kirkpatrick’s opinion is the final decision of the Commissioner for purposes of this
appeal. 20 C.F.R. §§ 404.981, 416.1481.
Decision of the Administrative Law Judge
ALJ Kirkpatrick made his decision at step four of the sequential evaluation. He
found that the claimant had the residual functional capacity (RFC) to perform sedentary
work, 20 C.F.R. §§ 404.1567(a), 416.967(a), except that due to psychological factors, she
was further limited, but able to perform both simple, unskilled tasks and also detailed
semi-skilled tasks (but not complex skilled tasks) (Tr. 585). The ALJ concluded that the
claimant was not disabled because she could perform her past relevant work as
receptionist and clerk typist (Tr. 596).
Review
The claimant contends that the ALJ erred by: (i) improperly assessing her RFC
during all three phases of step four, (ii) improperly evaluating the opinions of her treating
psychologist and licensed clinical social worker, and (iii) failing to properly assess her
credibility. The Court agrees the ALJ erred in assessing her RFC, and the decision of the
Commissioner should therefore be reversed and the case remanded.
The claimant had the severe impairments of major depression, avoidant
personality disorder, dysthymic disorder, and status post internal fixation for left ankle
fracture with subsequent fixation device (screw) removal (Tr. 582).
The claimant underwent a psychological evaluation on September 19, 2003,
achieving a full scale IQ score of 107, with a verbal scale IQ of 104 and performance IQ
of 109 (Tr. 224).

Dr. J. Lawrence Muirhead assessed the claimant’s functional
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limitations to include an extensive history of alcohol abuse, ongoing agitated depression
of mild to moderate severity, and interpersonal adjustment compromised by Avoidant
Personality Disorder (Tr. 226-227).

He diagnosed her with alcoholism, dysthymic

disorder, and avoidant personality disorder, along with moderate psychological stressors,
unemployment, and relationship difficulties (Tr. 227).
The claimant received treatment at a mental health facility in Texas, and on
September 2, 2004, she was diagnosed with depression and assessed a Global Assessment
of Functioning Score of 45 (Tr. 298).

Notes indicate that her impairments were

significant, characterized by sleep disturbance, eating disturbance, no regular
employment for the previous year, and living with family due to financial difficulties (Tr.
298).

On March 29, 2006, the claimant was again assessed with major depression

currently moderate, PTSD symptoms, alcohol dependence sustained full remission,
avoidant personality disorder traits, and rule out substance-induced depression (Tr. 363).
She was noted to have a serious impairment in sleeping, and assessed a GAF score of 49
(Tr. 365).
Robert Cross, Ph.D., completed a Mental RFC assessment of the claimant on
February 6, 2007, indicating that she had eleven moderate limitations that affected but
did not preclude her ability to function (Tr. 183-184). He stated that the claimant was
only capable of tolerating work stresses on a part-time basis, and that if she were placed
in a full-time setting, he estimated she would be expected to be absent 4 days on a
monthly basis (Tr. 184). He described her as having emotional lability, concentration
difficulties, and a low frustration tolerance, and further evaluated her as having difficulty
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understanding social cues, and getting distracted easily (Tr. 185). He believed she was
capable of remembering, comprehending, and carrying out simple instructions, but that
she would have difficulty with complex instructions, and that she may have difficulty
responding appropriately to work pressure, supervision, and co-workers (Tr. 186).
Treatment notes from Dr. Cross indicate that he consistently assessed her with a GAF of
51, and goals included working on her self-esteem and improving anxiety and depression
(Tr. 458-476). He further submitted a letter dated February 27, 2007, stating that he had
been treating the claimant weekly since September 2006, with mixed results – that she
had made some progress, but her moods had been mixed with sadness and anger, and that
she experienced a low frustration tolerance, irritability, sleep difficulties, emotional
lability, and some difficulty with memory and concentration (Tr. 187).
Licensed Clinical Social Worker Steve Long completed a Mental RFC assessment
in conjunction with the Appeals Council remand regarding the claimant’s limitations,
finding she had three severe limitations, five marked limitations, and five moderate
limitations and that drug or alcohol abuse were not factors (Tr. 754-755). He stated that
“her problems manifest in her inability to make and maintain friendships, her feelings of
being victimized or persecuted by others, suspicions that border on paranoid with regards
to the intentions of others, all of which ultimately result in impairment in the form of
conflict and/or withdrawal from social and work situations” (Tr. 756). He described her
mental status as fragile, and fearful of a relapse of her depression symptoms, suspicious
of others, and hypervigilant for evidence supporting her suspicions (Tr. 756). He further
stated that she was “not able to appropriately negotiate the social atmosphere and politics
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of an office setting. Thought processes tend to distort, and reality testing impaired, in
social setting” (Tr. 756). He described her prognosis as guarded because any stressor
could undermine her progress and result in a recurrence of symptoms (Tr. 757). He
found she could do simple and complex work, but would have difficulty in a work
setting.

He diagnosed her with major depressive disorder, single episode in partial

remission; PTSD; avoidant personality disorder; impairment in social and occupational
functions; and assessed her with a GAF of 45 (Tr. 757). On August 17, 2009, Mr. Long
completed a “Mental Health Form,” diagnosing the claimant with PTSD and adjustment
disorder, as well as problems related to her social environment, along with a GAF of 56
(Tr. 781). At that time, he noted that she was experiencing a disruption of social and
family relations, and stated that it was “clear that [claimant] has been suffering from
anxiety and depression since childhood which she controlled with denial, caretaking role
in her family, and later alcohol” (Tr. 781-782).
A state reviewing physician, J. D. Marler, Ph. D., found on February 9, 2005, that
the claimant had mild restrictions of activities of daily living and difficulties in
maintaining social functioning, and moderate difficulties in maintaining concentration,
persistence, or pace (Tr. 346). Dr. Marler also completed a Mental RFC assessment,
indicating that the claimant was moderately limited in the ability to understand and
remember detailed instructions, the ability to carry out detailed instructions, and the
ability to maintain attention and concentration for extended periods (Tr. 352).
The claimant testified at the most recent administrative hearing that her biggest
problem in maintaining a job would be consistency, in that she would miss work a
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number of days, believe that she was not doing a good job, and have difficulty
communicating with others (Tr. 800). She has moved from Dallas, and testified that she
struggled to establish places she was comfortable socializing, and that she had to switch
to online college courses because attending classes was too difficult for her (Tr. 801802). She indicated that she tries to limit herself to sitting only thirty minutes at a time,
because sitting for longer causes increased pain, and that she spends most of the day lying
down, and that standing causes increased pain to her ankle (Tr. 802-803).
In his written opinion, the ALJ summarized the claimant’s hearing testimony and
provided an extensive summary of the medical evidence. He thoroughly summarized Dr.
Cross’s records, then rejected Dr. Cross’s opinion as not well-supported by medicallyacceptable clinical and diagnostic techniques and as inconsistent with other evidence in
the record (Tr. 589). The ALJ explained why Dr. Cross’s opinion was “not the least bit
probative” as follows: (i) he failed to provide any mental status findings, (ii) nothing else
in the record supports Dr. Cross’s opinion, (iii) his progress notes indicate no abnormal
medical findings, and (iv) his RFC assessment was “discordant with claimant’s ability to
function in an academic environment as well as her ability to function in competitive
employment during many of the years she alleges disability” (Tr. 589-590). Furthermore,
he found there was no showing that Dr. Cross had reviewed the other medical records in
evidence, and Dr. Cross was the only medical source to indicate the claimant would be
absent more than four days a month (Tr. 591). He then turned to Mr. Long’s opinion,
noting that he was to analyze it as required by Soc. Sec. Rul. 06-3p and 09-2p. He made
much of the fact that Mr. Long had indicated he did not begin seeing the claimant until
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April 1, 2009, and found that he identified nothing credible to support his opinion (Tr.
592). The ALJ further found that Mr. Long’s GAF scores of 45 and 56 conflicted with
each other, and that Mr. Long was not an acceptable medical source capable of rendering
a diagnosis of PTSD (Tr. 593). The ALJ therefore found he was “unable to give much
weight” to Mr. Long’s opinion (Tr. 593).
The dispositive issue in this case is whether the ALJ properly analyzed the
claimant’s severe mental impairments. “When 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. § 404.1520a and the Listing of
Impairments and document the procedure accordingly.” Cruse v. 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 apply the

“psychological review technique” (PRT), the ALJ must first evaluate if the claimant has a
“medically determinable mental impairment,” 20 C.F.R. § 404.1520a(b)(1), then
determine the degree of function he has lost by assessing his level of functioning in four
specific areas. See Cruse, 49 F.3d at 617. The specific areas are: (i) activities of daily
living; (ii) social functioning; (iii) concentration, persistence, or pace; and (iv) episodes
of decompensation. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(d)(2). Furthermore, the
ALJ must specifically document his findings, inter alia, by discussing the evidence he
considered in reaching his conclusions about the claimant’s functionality. See, e. g.,
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
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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); 20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4) (“At
the administrative law judge hearing [level], 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)”); Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir. 2008) (although
not required to prepare the PRT form, the ALJ is “to document application of the
technique in the decision.”), quoting 20 C.F.R. §§ 1520(a)(e), 416.920(e).
In analyzing the loss of functionality suffered by the claimant in connection with
her mental impairments, the ALJ found at step three that the claimant had mild restriction
in activities of daily living; mild difficulties in social functioning; moderate difficulties
with regard to concentration, persistence or pace; and no extended episodes of
decompensation (Tr. 584). At step four, however, the ALJ did not discuss how the
claimant’s moderate limitations in concentration, persistence, and pace affected her RFC,
and did not discuss, much less explain why he rejected, the findings of the state agency
physician that that the claimant was moderately limited in the ability to maintain attention
and concentration for extended periods. 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.”). See also Givens v. Astrue, 251
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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.
Even 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.”); Berryhill v. Barnhart, 64 Fed. Appx. 196, 200 (10th Cir. 2003).
A thorough analysis of the claimant’s mental limitations was central to a proper
disposition of this case. Here, the ALJ failed to properly analyze the opinion of Dr.
Marler, i. e., the ALJ failed to explain why he adopted some (but not all) of the mental
limitations applicable to the claimant, despite the fact that Dr. Cross’s opinion also
supports this finding. 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 (July 2, 1996). These opinions are to be treated as medical opinions from
non-examining sources. Id. at *2. Although not bound by the determination of a state
agency physician, an ALJ may not simply ignore it and must explain the weight it is
given in the 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.”), citing 20 C.F.R. § 416.927(f)(2)(ii). In this case, the ALJ
adopted Dr. Marler’s findings at step three, but gave no explanation for apparently
rejecting the findings related to her concentration limitations at step four (Tr. 346, 352,
584-596). See, e. g., Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“[T]he ALJ
should have explained why he rejected four of the moderate restrictions on Dr. Rawlings’
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RFC assessment while appearing to adopt the others. An ALJ is not entitled to pick and
choose through an uncontradicted medical opinion, taking only the parts that are
favorable to a finding of nondisability . . . [T]he ALJ did not state that any evidence
conflicted with Dr. Rawlings’ opinion or mental RFC assessment. So it is simply
unexplained why the ALJ adopted some of Dr. Rawlings’ restrictions but not others.”).
Because the ALJ failed to properly analyze medical evidence as discussed above,
the decision of the Commissioner must be reversed and the case remanded for a proper
analysis. If such analysis results in any changes to the claimant’s RFC, the ALJ should
re-determine what work she can perform, if any, 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.
The decision of the Commissioner decision is accordingly hereby REVERSED and the
case REMANDED for further proceedings consistent herewith.
DATED this 26th day of September, 2014.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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