Long v. Social Security Administration

Filing 20

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
DANNY L. LONG,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN COLVIN,
)
Acting Commissioner of the Social )
Security Administration,
)
)
Defendant.
)

Case No. CIV-13-208-SPS

OPINION AND ORDER
The claimant Danny L. Long 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 should be 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 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 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 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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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 6, 1963, and was forty-nine years old at the time of
the administrative hearing (Tr. 29, 115). He completed high school and earned a CDL,
and has worked as a tree trimmer (Tr. 21, 155). The claimant alleges that he has been
unable to work since November 15, 2009, due to bipolar disorder, schizophrenia, and
suicidal ideation (Tr. 155).
Procedural History
On October 12, 2010, the claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. His
applications were denied. ALJ Lantz McClain conducted an administrative hearing and
determined that the claimant was not disabled in a written opinion dated March 16, 2012
(Tr. 11-23). The Appeals Council denied review; thus, the ALJ’s written opinion is the
Commissioner’s final decision for purposes of this appeal. See 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 found that
the claimant had the residual functional capacity (RFC) to perform medium work as
defined in 20 C.F.R. §§ 404.1567(c), 416.967(c), but that he needed to avoid work above
shoulder level. Additionally, the ALJ imposed the following limitations related to his
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mental impairments:

limited to simple, repetitive tasks; able to relate to peers and

supervisors on a superficial work basis; and not able to relate to the general public (Tr.
15). The ALJ concluded that although the claimant could not return to his past relevant
work, he was nevertheless not disabled because there was work in the regional and
national economy he could perform, i. e., janitor and warehouse worker (Tr. 22).
Review
The claimant contends that the ALJ erred: (i) by failing to properly account for the
mental functional limitations imposed by state reviewing physicians, and (ii) by finding
that he had the RFC to perform medium work (even with the additional restrictions). The
Court finds that the ALJ failed to conduct a proper step four analysis, 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 shoulder pain and
depression (Tr. 13). Medical evidence related to the claimant’s physical impairment
reveals that he complained of shoulder pain for quite some time. An x-ray of the left
shoulder on March 7, 2008 revealed that the osseous and joint structures were intact and
without evidence of fractures, dislocations, or significant degenerative changes (Tr. 322).
On February 10, 2010, an x-ray of the claimant’s right shoulder following a report that it
“slipped out” of socket revealed minimal glenohumeral degenerative joint disease (Tr.
320). A bilateral shoulder MRI the following month, on March 11, 2010, gave the
impression for the right shoulder, of irregularity along the medial aspect of the glenoid
with an adjacent bony density, disruption of the labrum in this region, tendinopathy and
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likely partial tearing of the superior aspect of the supraspinatus tendon within its mid
substance, and proximal biceps tendon not identified. As to the left shoulder, there was
bone marrow edema within the inferior aspect of the glenoid with diffuse thinning of the
labrum, proximal biceps tendon not well visualized, supraspinatus tendinopathy, and
small focal area of fluid demonstrated in the region of the superior glenohumeral and
middle glenohumeral ligaments (Tr. 355-356). The claimant was scheduled for surgery
on his left shoulder, but ultimately did not have it. Although the lab work does not
appear to be contained in the record, the claimant reported during a counseling session
that he did not undergo surgery because he tested positive for methamphetamines (Tr.
379). The record contained no consultative examiner report or state agency reviewing
physician physical RFC assessment, although it contained two mental RFC assessments.
At the administrative hearing, the claimant testified that he had been “clean” for
almost two years (Tr. 32). As to his shoulders, he stated that they were “busted” and
needed surgery but he mentioned that there was a possibility of developing arthritis and
that he had elected to not have surgery (Tr. 34). He said the problem was that his
shoulders regularly fall out of socket rendering him unable to pick up a bucket of water
(Tr. 34). He described the pain as constant, and that he has experienced it for a number
of years but that it has gradually worsened (Tr. 34).
Step four of the sequential analysis is comprised of three distinct phases. The ALJ
must first establish the claimant’s RFC, then determine the demands of the claimant’s
past work (both physical and mental), and ultimately conclude whether the claimant’s
RFC enables him to meet those demands. See, e. g., Winfrey v. Chater, 92 F.3d 1017,
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1023 (10th Cir. 1996) [citations omitted]. At each phase, the ALJ must make specific
factual findings, id., and although the ALJ may rely on information provided by a VE,
“the ALJ himself must make the required findings on the record, including his own
evaluation of the claimant’s ability to perform his past relevant work,” id. at 1025. See
Henrie v. U.S. Department of Health and Human Services, 13 F.3d 359, 361 (10th Cir.
1993) (“We recognize the tension created when the mandate of [Soc. Sec. Rul. 82-62] is
transposed on claimant’s step four burden of proof. In this regard, we emphasize that it is
not the ALJ’s duty to be the claimant’s advocate. Rather, the duty is one of inquiry and
factual development.”) [citation omitted], citing Soc. Sec. Rul. 82-62, 1982 WL 31386
(1983). Here, the claimant challenges the ALJ’s findings at the first phase of the stepfour analysis, i. e.,

the claimant asserts there is no substantial evidence to support a

finding that he can perform medium work.
The ALJ found that the claimant had the RFC to perform medium work, with the
physical limitation of avoiding work above shoulder level 2 (Tr. 15). “Medium work
involves lifting no more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c). “The RFC
assessment must include a narrative discussion describing how the evidence supports
each conclusion, citing specific medical facts (e. g., laboratory findings) and nonmedical
evidence (e. g., daily activities, observations).” Soc. Sec. Rul. 96-8p, 1996 WL 374184,
at *7 (July 2, 1996). “When the ALJ has failed to comply with SSR 96-8p because he
2

The ALJ also imposed a number of restrictions related to the claimant’s mental impairment,
and the claimant challenges these findings as well. On remand, the ALJ should re-evaluate all
the claimant’s impairments in determining his RFC.
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has not linked his RFC determination with specific evidence in the record, the court
cannot adequately assess whether relevant evidence supports the ALJ’s RFC
determination.” Jagodzinski v. Colvin, 2013 WL 4849101, at *2 (D. Kan. Sept. 11,
2013), citing Brown v. Commissioner of the Social Security Administration, 245 F. Supp.
2d 1175, 1187 (D. Kan. 2003).
Here, the record contains evidence that the claimant had a severe shoulder
impairment. Although the record contains evidence of the times the claimant went to the
hospital to have his shoulder put back into place, the x-rays and MRIs, and the
recommendation for the claimant’s surgery, there are no physical RFC assessments in the
record—from a treating physician, a consultative physician, or a state reviewing
physician. Instead, the ALJ made his own determination as follows: “Because of the
claimant’s shoulder pain, the undersigned limits the claimant to medium work, but finds
the claimant needs to avoid work above shoulder level” (Tr. 17-18). He then noted that
no physician found the claimant disabled, and gave great weight to the state reviewing
physician opinions as supporting his RFC and the medical evidence (Tr. 20). Notably,
the state physician opinions only related to the claimant’s mental impairments (Tr. 357374, 508-525).
The ALJ did not cite to any evidence in the record indicating that the claimant
could lift and carry up to fifty pounds occasionally and twenty-five pounds frequently,
and he thus failed to point to medical evidence demonstrating the claimant can perform
medium work. The claimant’s testimony belies such a finding, as he stated that he has
difficulty lifting a bucket of water, and there is no evidence in the record supporting a
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finding of medium work.

“[T]he ALJ’s RFC assessment must include a narrative

discussion describing how the evidence supports each conclusion, citing specific medical
facts . . . and nonmedical evidence.” Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir.
2013), quoting Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *7.

As in Jagodzinski, “[t]he

problem in this case is the absence of evidence regarding plaintiff’s impairments and
limitations[.]” 2013 WL 4849101, at *5. “When the medical evidence indicates . . . that
the record is insufficient to make an RFC finding, it is incumbent on the ALJ to comply
with SSR 96-8p by providing a narrative explanation for his RFC finding that plaintiff
can perform medium work, citing to specific medical facts and/or nonmedical evidence in
support of his RFC findings.” Id. See also Fleetwood v. Barnhart, 211 Fed. Appx. 736,
740-741 (10th Cir. 2007) (“The ALJ’s inability to make proper RFC findings may have
sprung from his failure to develop a sufficient record on which those findings could be
based. The ALJ must make every reasonable effort to ensure that the file contains
sufficient evidence to assess RFC.”) [quotations omitted].
The Commissioner asserts that the ALJ is not required to draw a direct line
between an RFC finding and a medical opinion. See Chapo v. Astrue, 682 F.3d 1285,
(10th Cir. 2012) (“We have thus rejected the argument that there must be specific,
affirmative, medical evidence on the record as to each requirement of an exertional work
level before an ALJ can determine RFC within that category.”). But here, the ALJ failed
“to cite to any evidence in support of his RFC finding that plaintiff can perform medium
work.” Jagodzinski, 2013 WL 4849101, at *5 n.4 (“By contrast, in Chapo, the record
included two physical RFC assessments.”).
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Accordingly, the decision of the Commissioner must be reversed and the case
remanded for further analysis of the claimant’s RFC. On remand, the ALJ should
consider recontacting the claimant’s treating physicians, requesting further medical
records, and/or ordering a consultative examination. See 20 C.F.R. §§ 404.1512(e)(1),
416.912(e)(1) (“We will seek additional evidence or clarification from your medical
source when the report from your medical source contains a conflict or ambiguity that
must be resolved, the report does not contain all the necessary information, or does not
appear to be based on medically acceptable clinical and laboratory diagnostic
techniques.”). The ALJ could also request that a state agency physician review the
record.

An ALJ has broad latitude in deciding whether to order consultative

examinations. Hawkins v. Chater, 113 F.3d 1162, 1166-67 (10th Cir. 1997) (Once the
claimant has presented evidence suggestive of a severe impairment, it “becomes the
responsibility of the ALJ to order a consultative evaluation if such an examination is
necessary or helpful to resolve the issue of impairment.”), citing Diaz v. Secretary of
Health & Human Services, 898 F.2d 774, 778 (10th Cir. 1990).

A consultative

examination also may be required if there is a direct conflict in the medical evidence, the
medical evidence is inconclusive, or when additional tests are needed to explain a
diagnosis already in the record. Id. at 1166. But an ALJ does not generally have a duty
to order a consultative examination unless requested by counsel or the need is clearly
established in the record. See Hawkins, 113 F.3d at 1168. Such an examination would
have been helpful in this case, because in its absence the ALJ had no opinions as to the
claimant’s physical RFC.

The ALJ’s discretion is not boundless, and under the
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circumstances in this case, the ALJ should at least have explained why he failed to further
develop the record.
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 26th day of September, 2014.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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