Larney v. Social Security Administration

Filing 24

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
SONNY LARNEY,

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

Case No. CIV-13-449-SPS

OPINION AND ORDER
The claimant Sonny Larney 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 September 15, 1961, and was fifty years old at the time of
the administrative hearing (Tr. 37). He completed high school and reported at the hearing
that he had attended special education classes, and has worked as a stocker, fry cook, wet
spray coater, brick slurry, and magnet inspector (Tr. 69, 199). The claimant alleges that
he has been unable to work since December 15, 2010, due to a liver infection, urinary
infection, and diabetes (Tr. 199).
Procedural History
On December 20, 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. §§ 138185. His applications were denied. ALJ Douglas S. Stults conducted an administrative
hearing and determined that the claimant was not disabled in a written opinion dated
August 10, 2012 (Tr. 16-25). 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 four of the sequential evaluation. He found that
the claimant had the residual functional capacity (RFC) to perform the full range of
medium work as defined in 20 C.F.R. §§ 404.1567(c), 416.967(c) (Tr. 21). The ALJ thus
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concluded that the claimant was not disabled because he could return to his past relevant
work as a cook or a wet spray coater (Tr. 24).
Review
The claimant contends that the ALJ’s RFC assessment is not supported by
substantial evidence because the ALJ improperly assessed the opinion of the claimant’s
treating physician and treating nurse practitioner, and did not have the benefit of a
statement by the claimant’s former employer, that was submitted to the Appeals Council.
The Court agrees with the claimant’s contentions and finds that the ALJ failed to conduct
a proper step four analysis.
The ALJ found that the claimant had the severe impairments of diabetes mellitus
and status post amputation of the great right toe (Tr. 19). Medical evidence reveals that
the claimant was treated at Carl Albert Indian Hospital for a scrotal abscess and cellulitis
of the right shoulder (Tr. 276-462). On March 15, 2012, the claimant underwent an
amputation of his great right toe, following the development of an ulcer which the
claimant had treated from July 2011 through March 2012 at Wewoka Indian Wound Care
Clinic (Tr. 515-571).
On September 5, 2011, Family Nurse Practitioner Joan Tapper, from Wewoka
Indian Clinic, completed a medical statement indicating that the claimant’s diagnoses
were: diabetes type II, diabetes foot ulcer (healed), hypertension, diabetic neuropathy,
and cataracts (Tr. 514). It was her opinion that the claimant could only work two hours
per day, and that he could stand two hours at a time and sit four hours at a time, lift up to
ten pounds frequently and occasionally, and occasionally bend and manipulate with his
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hands. She further indicated that the claimant would frequently need to elevate his legs
during an eight-hour workday (Tr. 514). On April 18, 2012, she completed a second
statement with the same diagnoses, but noting the claimant’s right great toe had been
amputated on March 15, 2012, and that he was pending surgery for his cataracts (Tr.
616). She further adjusted her opinion to find that the claimant could work zero hours
per day, stand 15 minutes at one time, sit two hours at one time, lift ten pounds
occasionally and five pounds frequently, and that he would need to elevate his legs most
of the time (Tr. 616). She rated his pain as severe (Tr. 616). That same day, Dr. Andrew
Stevens completed a medical statement, indicating his status post amputation of right
hallux (great right toe) (Tr. 617). He further stated that the claimant could work zero
hours per day, not stand for any length of time, sit for four hours at a time, and only lift
five pounds occasionally (Tr. 617). He indicated that the claimant could constantly bend
and manipulate his hands, but would need to elevate his legs most of the time; he stated
these restrictions would apply until the claimant’s wound had completely healed (Tr.
617).
Two state reviewing physicians both found that the claimant could perform
medium work, although Dr. Lisa Mungul also found the claimant had limited overhead
reaching for the right arm and normal use of the left arm (Tr. 464-470, 506). The second
physician noted that follow-up treatment of the claimant’s right shoulder had revealed no
abscess, and therefore found no related limitations (Tr. 506-507).
Evidence submitted to the Appeals Council included a “Work Activity
Questionnaire” completed by the claimant’s former employer, Mickey Shaw. Mr. Shaw
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indicated that from January 1, 2011, the claimant was not able to complete the usual
duties for his position without special assistance, that he did not regularly report for duty
as scheduled, and that he did not complete his work in the same amount of time as other
employees, as demonstrated by fewer hours and more breaks/rest periods (Tr. 719). He
estimated that the claimant’s productivity compared to other employees with similar
positions and pay was 50% or less than other employees’ productivity (Tr. 719).
The Court agrees with the claimant that the ALJ erred in formulating the
claimant’s RFC when he found the claimant could perform the full range of medium
work. “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 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). Nevertheless, the ALJ failed to cite to any evidence in the
record to support a finding 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. Both the claimant’s
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testimony and the examining and treating medical sources belie such a finding, and there
is no evidence in the record other than assertions without support from non-examining,
non-reviewing physicians.

“[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].
Although, the ALJ’s written decision notes the two assessments from Ms. Tapper
and Dr. Stevens, he afforded them “minimal weight” (Tr. 23-24). As to Ms. Tapper’s
first opinion, he found that routine notes indicated the claimant had no complaints of pain
and they did not specifically state that the claimant needed to elevate his legs. As to Ms.
Tapper’s second opinion and Dr. Stevens’ opinion, he gave them “minimal weight”
because those restrictions were related to the immediate period following the claimant’s
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toe amputation, a finding that the claimant could not work at all was reserved for the
Commissioner, and Dr. Stevens specifically stated that those restrictions only applied
until the claimant’s wound healed (Tr. 24). The ALJ thus concluded that the claimant’s
wound would heal within twelve months (Tr. 24). The ALJ was clearly not required to
give controlling weight to any opinion by Ms. Tapper or Dr. Stevens to the effect that the
claimant was unable to work, see 20 C.F.R. § 404.1527(d)(1) (“A statement by a medical
source that you are disabled or unable to work does not mean that we will determine that
you are disabled.”), but should nevertheless have determined the proper weight to give
such opinions that the claimant could work zero hours (or fewer than eight hours total per
day) rather than ignoring them outright. This is especially important where, as here, Dr.
Stevens and Ms. Tapper were not simply saying that the claimant was disabled, but
opining as to his specific limitations. See Miller v. Barnhart, 43 Fed. Appx. 200, 204
(10th Cir. 2002) (“The [ALJ] is required to evaluate all evidence in the case record that
may have a bearing on the determination or decision of disability, including opinions
from medical sources about issues reserved to the Commissioner.”); Soc. Sec. Rul. 96-5p,
1996 WL 374183, at *3 (July 2, 1996) (“If the case record contains an opinion from a
medical source on an issue reserved to the Commissioner, the adjudicator must evaluate
all the evidence in the case record to determine the extent to which the opinion is
supported by the record.”).
Notably, much of the ALJ’s support for his findings relied in large part on the
claimant’s failure to follow treatment for his impairments, e. g., self-care related to his
diabetes. In considering the impact of such failure, the ALJ must follow a four-part test:
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(i) whether treatment would have restored the claimant’s ability to work; (ii) whether
treatment was prescribed; (iii) whether treatment was refused; and (iv) whether the
excuse was justified. Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987), citing Weakley
v. Heckler, 795 F.2d 64, 66 (10th Cir. 1986), quoting Teter v. Hecker, 775 F.2d 1104,
1107 (10th Cir. 1985). See also Lee v. Barnhart, 117 Fed. Appx. 674, 681 (10th Cir.
2004) (“This analysis applies to cases in which the claimant fails to pursue medical
treatment because he cannot afford it.”) [unpublished opinion], citing Thompson v.
Sullivan, 987 F.2d 1482, 1489-90 (10th Cir. 1993) (An inability to pay for recommended
treatment may justify the failure to follow the treatment); Miranda v. Barnhart, 205 Fed.
Appx. 638, 642 (10th Cir. 2005) (“‘[T]he adjudicator must not draw any inferences about
an individual’s symptoms and their functional effects from a failure to seek or pursue
regular medical treatment without first considering any explanations that the individual
may provide.’”) [unpublished opinion], quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186,
at *7; Thomas v. Barnhart, 147 Fed. Appx. 755, 760 (10th Cir. 2005) (“‘[T]he medicine
or treatment an indigent person cannot afford is no more a cure for his condition than if it
had never been discovered . . . To a poor person, a medicine that he cannot afford to buy
does not exist.’”) [unpublished opinion], quoting Lovelace v. Bowen, 813 F.2d 55, 59 (5th
Cir. 1987). In this case, however, the ALJ failed to discuss any of these factors in
relation to his finding that claimant was noncompliant with medical treatment.
Finally, the claimant’s contention that the ALJ failed to properly evaluate all the
medical evidence is based, in part, upon the evidence submitted to the Appeals Council
after the hearing. The Appeals Council must consider such additional evidence if it is: (i)
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new, (ii) material, and (iii) “related to the period on or before the date of the ALJ’s
decision.” Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004), quoting Box v.
Shalala, 52 F.3d 168, 171 (8th Cir. 1995). The parties do not address whether the
evidence submitted by the claimant after the administrative hearing qualifies as new,
material and chronologically relevant, but the Appeals Council considered it, and the
Court therefore has no difficulty concluding that it does qualify.
First, evidence is new if it “is not duplicative or cumulative.” Threet v. Barnhart,
353 F.3d 1185, 1191 (10th Cir. 2003), quoting Wilkins v. Sec’y, Dep’t of Health &
Human Svcs., 953 F.2d 93, 96 (4th Cir. 1991). The evidence submitted by the claimant to
the Appeals Council clearly was new evidence.

The claimant’s former employer

corroborated the claimant’s testimony that he had continued to work through December
2011, but had done so at a substantially reduced level (Tr. 719).

Neither was the

information duplicative or cumulative because it was not presented to the ALJ prior to his
decision and the ALJ specifically questioned the claimant about this at the hearing.
Second, evidence is material “if there is a reasonable possibility that [it] would have
changed the outcome.” Threet, 353 F.3d at 1191, quoting Wilkins v. Sec’y, Dep’t of
Health & Human Svcs., 953 F.2d 93, 96 (4th Cir. 1991). In other words, the evidence
must “reasonably [call] into question the disposition of the case.” Id.; see also, Lawson v.
Chater, 1996 WL 195124, at *2 (10th Cir. April 23, 1996) [unpublished table opinion].
In this regard, the information provided further insight into the claimant’s limitations and
accommodations as he attempted to work even prior to the amputation of his great right
toe. Finally, the evidence is chronologically relevant when it pertains to the time “period
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on or before the date of the ALJ’s Decision.” Kesner v. Barnhart, 470 F. Supp. 2d 1315,
1320 (D. Utah 2006), citing 20 C.F.R. § 404.970(b). Although this information was
submitted subsequent to the ALJ’s decision, it is a clarification and explanation as to
testimony the ALJ elicited at the hearing regarding work the claimant could (and could
not) perform, and was based on evidence from the pertinent time frame (Tr. 815).
Since the evidence presented by the claimant after the administrative hearing does
qualify as new and material evidence under C.F.R. §§ 404.970(b) and 416.1470(b) and
the Appeals Council considered it, such evidence “becomes part of the record we assess
in evaluating the Commissioner’s denial of benefits under the substantial-evidence
standard.” Chambers, 389 F.3d at 1142, citing O’Dell v. Shalala, 44 F.3d 855, 859 (10th
Cir. 1994). The ALJ had no opportunity to perform the proper analysis, and while the
Appeals Council considered this new evidence, they failed to analyze it in accordance
with the aforementioned standards. In light of this new evidence as well as the additional
errors indicated above, the Court finds that the ALJ’s decision is not supported by
substantial evidence.
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
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appear to be based on medically acceptable clinical and laboratory diagnostic
techniques.”). A consultative examination 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. Although 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, it might be helpful where, as here, there was no evidence
in the record to support the ALJ’s prescribed RFC assessment. Hawkins v. Chater, 113
F.3d 1162, 1166, 1168 (10th Cir. 1997).
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 March, 2015.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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