Ellingson 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
ROBERT D. ELLINGSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

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Case No. CIV-13-226-SPS

OPINION AND ORDER
The claimant Robert D. Ellingson 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 that the Administrative Law
Judge (“ALJ”) erred in determining he was not disabled. For the reasons discussed
below, the Commissioner’s decision is hereby REVERSED and the case is 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 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. Sec’y of Health & Human Svcs., 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 from its weight.”

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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, she 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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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 26, 1958, and was fifty-four years old at the time
of the administrative hearing (Tr. 27). He completed the ninth grade, and has worked as
a tractor-trailer truck driver (Tr. 17, 137). The claimant alleges he has been unable to
work since October 16, 2010, due to problems from past cancer surgeries, including
inability to concentrate and being very emotional (Tr. 136).
Procedural History
The claimant applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, on March 1, 2011. His application was denied. ALJ
Bernard Porter held an administrative hearing and determined that the claimant was not
disabled in a written opinion dated December 18, 2012 (Tr. 11-19). 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. § 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 medium work as
defined in 20 C.F.R. § 404.1567(c), with the following exceptions: (i) he must never
climb ladders or scaffolds, and never crawl; (ii) he must not work in extreme
temperatures; (iii) he must have no more than occasional interaction with the public,
coworkers, and supervisors; (iv) time off task would be accommodated by normal breaks;
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and (v) he cannot perform work at a rapid pace, but would be able to perform goaloriented work (Tr. 16). The ALJ concluded that although the claimant could not return to
his past relevant work, he was nevertheless not disabled because there was work he could
perform in the regional and national economies, e. g., kitchen helper, order picker, and
cleaner (Tr. 18).
Review
The claimant argues that the ALJ erred: (i) by failing to evaluate the opinions of
his treating psychiatrist, Dr. Richard Zielinski, and his mental health counselor, Ms.
Linda Estes, and (ii) by failing to properly assess his credibility. The Court finds that the
ALJ did fail to properly evaluate the opinion of Ms. Estes (as well as third party evidence
from the claimant’s sister, which supported the opinion), 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 residuals from
bladder cancer treatment, including major depression, post-traumatic stress disorder
(PTSD), and a urostomy (Tr. 13). As to his mental impairments, the claimant began
treatment with Ms. Estes on October 26, 2011, at which time she noted that his current
condition of health (including mental diagnosis) was fair, that the claimant was not able
to work, and that he had no income and was unable to afford supplies for his disability
(the urostomy) (Tr. 259). She assessed him with major depressive disorder, recurrent
episode severe, and PTSD, along with a global assessment of functioning (GAF) score of
50 (Tr. 262). Follow-up appointments with Ms. Estes indicated the same diagnoses,
along with GAF scores of 53 and 55 (Tr. 266, 277).
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Dr. Zielinski managed his

medications, noting the claimant’s reports of difficulty concentrating, managing his
emotions, and sleeping (Tr. 273-274, 283-284, 286-287). Additionally, on September 6,
2012, Ms. Estes prepared a letter describing the claimant’s impairments, including his
recurring nightmares resulting from his surgery during which he woke up and saw
himself on the operating table (Tr. 294-295). She stated, in part, that “Robert’s health
issues are ongoing as are his mental health issues. He continues to suffer with major
bouts of depression and goes into a panic thinking about his ability to function with the
[losses] he has suffered and the trauma he experienced and continues to experience every
night in his dreams” (Tr. 295).
Michael Maguire, Psy. D., conducted a consultative psychiatric evaluation of the
claimant on May 31, 2011 (Tr. 215). He assessed the claimant with dysthymic disorder,
noting that the claimant’s depressed mood was not being treated due to an inability to
afford his high deductible. He stated, “with proper, adequate treatment, his depressed
mood will most likely improve. His prognosis is fair without treatment and good if he
gets treatment” (Tr. 217). On September 14, 2011, state agency physician Jaine FosterValdez completed a Psychiatric Review Technique (PRT) form indicating that the
claimant currently had no severe mental impairment (Tr. 235).
The claimant’s sister June Loveland prepared a Third Party Function Report on
April 3, 2011 (Tr. 141-150).

She indicated the claimant mostly reads or watches

television, and struggles with depression and becoming emotional (Tr. 142).

She

indicated that he used to be a truck driver, but he now struggles with sleeping at night, as
well as finishing things that he starts. She indicated that he is able to take care of his
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personal grooming, and gets outside almost every day, and is able to shop for groceries
but not for very long (Tr. 142-146). She stated that he used to love to swim and go
dancing, and now he struggles with lifting over ten pounds, bending (due to the
urostomy), concentration, completing tasks, and getting along with others (Tr. 147-148).
She stated that he does not handle stress well, but handles changes in routine “okay” (Tr.
149).
The claimant testified at the administrative hearing that he has difficulty
concentrating long enough to do a job, that he had struggled with problems ever since
waking up in his operation and seeing himself cut open, and that he goes through mood
swings and depression (Tr. 29, 31). Although he worked for many years after his 1997
surgery, he stated that it “gradually started laying heavier on my mind,” and he was no
longer able to put it aside to work (Tr. 31). He indicated that counseling has helped but
that they told him he would never be able to completely “get rid of” it (Tr. 32).
Physically, he noted that he has a hole in his stomach due to his urostomy bag (Tr. 33).
He explained that he was fired from his last job because he could not make deliveries or
pick up goods on time (Tr. 39-40).
In his written opinion at step two, the ALJ noted that Dr. Zielinski and Ms. Estes
had treated the claimant but that “there is no opinion in file from the claimant’s treating
sources that he would have disabling mental limitations notwithstanding a letter in the
record from Linda Estes” (Tr. 15). At step four, the ALJ stated that he “relied heavily”
on the state agency physicians and physical consultative examination, but disagreed with
their findings to the extent the claimant had greater limitations of physical movement due
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to the urostomy (Tr. 16). As to his mental impairments, the ALJ assigned little weight to
Dr. Maguire and Jaine Foster-Valdez in light of the subsequent mental health treatment
records (Tr. 17). He then found the claimant not credible, and found that the claimant did
not have difficulty concentrating (Tr. 17). The ALJ did not, however, discuss the opinion
of Ms. Estes, nor any of her treatment records, GAF scores, or diagnoses, nor did he
discuss Dr. Zielinski’s medication management, the claimant’s hearing testimony, or the
Third Party Function Report at step four (Tr. 16-17).
Social Security regulations provide for the proper consideration of “other source”
opinions such as that provided by Ms. Estes herein. See, e. g., Frantz v. Astrue, 509 F.3d
1299, 1302 (10th Cir. 2007) (noting that other source opinions should be evaluated with
the relevant evidence “on key issues such as impairment severity and functional effects”
under the factors in 20 C.F.R. §§ 404.1527, 416.927), quoting Soc. Sec. Rul. 06-03p,
2006 WL 2329939 at *1 (Aug. 9, 2006). See also Soc. Sec. Rul. 06-03p, 2006 WL
2329939 at *6 (“[T]he adjudicator generally should explain the weight given to opinions
from these ‘other sources,’ or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case.”). The factors for evaluating opinion evidence from “other sources” include: (i) the
length of the relationship and frequency of contact; (ii) whether the opinion is consistent
with other evidence; (iii) the extent the source provides relevant supporting evidence; (iv)
how well the source’s opinion is explained; (v) whether claimant’s impairment is related
to a source’s specialty or area of expertise; and (vi) any other supporting or refuting
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factors. See Soc. Sec. Rul. 06-03p at *4-5; 20 C.F.R. § 404.1527(d). The ALJ made no
reference whatever to these factors at all, much less in connection with the evaluations by
Ms. Estes, and it is therefore unclear whether he considered any of them. See, e. g.,
Anderson v. Astrue, 319 Fed. Appx. 712, 718 (10th Cir. 2009) (“Although the ALJ’s
decision need not include an explicit discussion of each factor, the record must reflect
that the ALJ considered every factor in the weight calculation.”) [citation omitted]. Nor
did the ALJ otherwise discuss Ms. Estes’ opinion, opting instead to mention its existence
at step two then ignore its implications at step four. See, e. g., Clifton, 79 F.3d at 1010
(“[I]n addition to discussing the evidence supporting his decision, the ALJ also must
discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.”) citing Vincent ex rel. Vincent v. Heckler, 739 F.3d 1393,
1394-1395 (9th Cir. 1984).
Social Security Ruling 06-03p also provides the standards for evaluation of third
party evidence such as that provided by the claimant’s sister, Ms. Loveland. Other
source evidence, such as functional reports or testimony from spouses, parents, friends,
and neighbors, should be evaluated by considering the following factors: (i) the 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. 0603p, 2006 WL 2329939, at *6. Here, not only did the ALJ wholly fail to apply these
standards to the evidence provided by Ms. Loveland; the ALJ simply ignored it entirely
in his written opinion. Because this evidence provided at least some support for the

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observations made by Ms. Estes, the ALJ should have given it proper consideration
instead of ignoring it.
Because the ALJ failed to properly consider the “other source” evidence provided
by Ms. Estes and the claimant’s sister Ms. Loveland, 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 Commissioner’s decision is accordingly 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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