Fowler v. Social Security Administration

Filing 23

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
LISA A. FOWLER,

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

Case No. CIV-13-286-SPS

OPINION AND ORDER
The claimant Lisa A. Fowler 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 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
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 the 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 July 19, 1971, and was forty years old at the time of the
administrative hearing (Tr. 32, 92). She completed eighth grade, and has no past relevant
work (Tr. 21, 109). The claimant alleges inability to work since December 31, 2009, due
to hepatitis C, numbness and swelling in her hands, and herniated discs in her neck (Tr.
108).
Procedural History
On March 24, 2010, the claimant applied for supplemental benefits under Title
XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her application was denied. ALJ
Osly F. Deramus conducted an administrative hearing and determined that the claimant
was not disabled in a written opinion dated January 6, 2012 (Tr. 15-23). 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. § 416.1481.
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 a limited range of
light work, as defined in 20 C.F.R. § 416.967(b), but could stoop, crouch, crawl, kneel,
balance, climb stairs and reach overhead with both arms only occasionally, and not climb
ladders. The claimant could also perform only simple tasks with routine supervision,
relate to supervisors and peers on a superficial work basis but not relate to the general
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public, and adapt to a work situation (Tr. 18). The ALJ concluded that although there
was no past relevant work to which she could return, the claimant was nevertheless not
disabled because there was work in the regional and national economy that she could
perform, i. e., cafeteria work (Tr. 22).
Review
The claimant contends that the ALJ erred: (i) by failing to adequately develop the
administrative record; (ii) by failing to properly weight the opinions of her consultative
examiners; (iii) by failing to consider all her impairments in combination; and (iv) by
failing to properly evaluate her credibility. Because the ALJ does appear to have ignored
probative evidence regarding the claimant’s impairments, the decision of the
Commissioner must be reversed.
The medical evidence reveals that the claimant had the severe impairments of
hepatitis C, affective mood disorder, and chronic neck pain (Tr. 17). As to her mental
impairments, the claimant stated that she received treatment at Carl Albert Mental Health
Facility, but the facility indicated that they had no treatment records for the claimant
within the dates requested (Tr. 252). On December 7, 2007, Dr. Theresa Horton, Ph.D.,
conducted a mental status examination of the claimant (Tr. 160). The claimant reported a
past diagnosis of borderline personality disorder, and reported a history of drug use since
the age of 16, but that she had been clean since March 2007 (Tr. 160-162). Dr. Horton
noted that the claimant’s thought processes were logical and organized, but extremely
tangential, and that she became more goal-directed with prompting (Tr. 162). She also
stated that the claimant was oriented to person, place, time, and situation, but that her
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recall of numbers was poor and her concentration was “quite poor,” and that she
presented with poor judgment, fair insight, and that it appeared she was not capable of
managing benefits if awarded (Tr. 163). Dr. Horton diagnosed the claimant with bipolar
disorder, post-traumatic stress disorder (PTSD), personality disorder NOS with
prominent borderline and histrionic traits, and hepatitis C, and further indicated that the
claimant’s prognosis was that she was capable of understanding and managing simple
instructions and tasks with supervision, but not more complex tasks. Dr. Horton opined
that the claimant would have “significant difficulty adjusting into occupational settings as
her presentation is somewhat odd, and she appears elevated in mood” (Tr. 163).
Dr. Horton conducted a second evaluation of the claimant on June 22, 2010 (Tr.
214). At that time, the claimant reported treatment at Carl Albert Mental Health Facility
for over a year, sometime around 2007, and that she had been clean for over two years
but that she continued to consume alcohol as a part of her family culture (Tr. 215-217).
Dr. Horton again noted that the claimant’s thought processes were logical though often
tangential, that she would return to tasks with prompting but that prompting must be
repeated to keep her on task, and further repeated that the claimant’s concentration was
poor (Tr. 217). She further noted that the claimant presented with appropriate judgment,
fair insight, and did not appear capable of managing benefits if awarded (Tr. 218). She
diagnosed the claimant with bipolar disorder type I, PTSD, polysubstance abuse in partial
remission, and dependent personality traits.

Her prognosis was that the claimant

appeared capable of understanding, remembering, and managing simple instructions and
tasks, but “likely requires good supervision with frequent prompting to stay on task”; that
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she appeared capable of understanding more complex issues and tasks, but was not likely
to manage many of them; that she appeared capable of social and emotional adjustment in
most familiar social settings, but would struggle in most occupational settings; and that
she had significant difficulty with concentration and maintaining relationships, making
permanent employment an issue (Tr. 218-219).
A state agency physician reviewed the claimant’s medical records and found that
she was markedly limited in her ability to carry out detailed instructions and in the ability
to interact with the general public, but not otherwise limited, and opined that she could
perform simple tasks with routine supervision (Tr. 231-233). She cited Dr. Horton’s
prognoses in support of her conclusions (Tr. 247).
“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. . . . An ALJ must also consider a series of specific factors
in determining what weight to give any medical opinion.” Hamlin v. Barnhart, 365 F.3d
1208, 1215 (10th Cir. 2004), citing Goatcher v. United States Department of Health &
Human Services, 52 F.3d 288, 290 (10th Cir. 1995). The pertinent factors include the
following: (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
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attention which tend to support or contradict the opinion. See Watkins v. Barnhart, 350
F.3d 1297, 1300-01 (10th Cir. 2003), citing Drapeau v. Massanari, 255 F.3d 1211, 1213
(10th Cir. 2001). Here, the ALJ provided a summary of Dr. Horton’s reports, but did not
provide any analysis of her findings and prognoses. This was important to do because
Dr. Horton repeatedly pointed out concerns about the claimant’s ability to adjust to an
occupational setting, maintain employment, and remain on task, which the reviewing
physician noted but apparently rejected without explanation. Nor did the ALJ provide
any such explanation; he adopted the reviewing physician’s report without even noting
the difference in the opinions.
Because the ALJ failed to discuss evidence that was inconsistent with his RFC
determination, i. e., Dr. Horton’s opinion that the claimant would struggle in most
occupational settings, the decision of the Commissioner must be reversed and the case
remanded to the ALJ for a proper analysis in accordance with the appropriate standards.
If such analysis results in 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
The Court hereby 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 is accordingly REVERSED and the case is REMANDED
for further proceedings consistent herewith.

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DATED this 26th day of September, 2014.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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