Durant v. Social Security Administration

Filing 24

OPINION AND ORDER by Magistrate Judge Kimberly E. West reversing and remanding the decision of the ALJ.(sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DIANA L. DURANT,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-13-539-KEW

OPINION AND ORDER

Plaintiff Diana L. Durant (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.

Claimant

appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined
discussed

that
below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

Commissioner’s decision should be and 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

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

§423(d)(2)(A).

in

the

national

economy.

.

.”

42

U.S.C.

Social Security regulations implement a five-step

sequential process to evaluate a disability claim.

See, 20 C.F.R.

§§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:
substantial

This Court’s review is limited to

first, whether the decision was supported by

evidence;

and,

second,

1

whether

the

correct

legal

Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

2

standards were applied.

Hawkins v. Chater, 113 F.3d 1162, 1164

(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“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)).

The

court may not re-weigh the evidence nor substitute its discretion
for that of the agency.

Casias v. Secretary of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “substantiality of the
evidence must take into account whatever in the record fairly
detracts 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
Claimant was born on October 11, 1964 and was 48 years old at
the time of the ALJ’s latest decision.
education through the tenth grade.

Claimant completed her

Claimant has worked in the past

as a hospital cleaner and daycare worker.

Claimant alleges an

inability to work beginning June 25, 2007 due to limitations
resulting

from

a

back

injury,

depression,

diverticulosis.
Procedural History

3

anxiety,

and

On April 21, 2008, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) and
supplemental security income pursuant to Title XVI (42 U.S.C. §
1381, et seq.) of the Social Security Act.
were

denied

initially

and

upon

Claimant’s applications

reconsideration.

After

an

administrative hearing, the Administrative Law Judge (“ALJ”) issued
an unfavorable decision on November 3, 2009.

The Appeals Council

denied review and the decision was appealed to this Court.

The

decision was reversed and the case remanded on March 22, 2013.
On

October

18,

2011,

Claimant

filed

a

second

Title

XVI

application and on October 26, 2011, she filed a second Title II
application.

Both were again denied.

On August 6, 2013, ALJ James

Bentley conducted an administrative hearing in McAlester, Oklahoma.
By decision dated October 23, 2013, the ALJ issued an unfavorable
decision.

The Appeals Council denied review of the ALJ’s decision

on January 8, 2014. As a result, the decision of the ALJ represents
the Commissioner’s final decision for purposes of further appeal.
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 determined that while Claimant suffered from severe

impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform less than a full range of

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light work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
perform

a

proper

evaluation

at

step

three

of

the

sequential

evaluation; (2) failing to properly evaluate the medical evidence;
(3) failing to perform a proper credibility determination; and (4)
failing to properly evaluate Claimant’s limitations at step four and
five.
Step Three Evaluation
In his decision, the ALJ found Claimant suffered from the
severe impairments of lumbar degenerative disc disease, obesity,
cardiomyopathy, hypertension, dizziness, trigeminal neuralgia, major
depressive

disorder,

generalized

anxiety

disorder,

disorder, NOS, and dependent personality traits.

somatoform

(Tr. 774).

The

ALJ determined Claimant retained the RFC to perform less than a full
range of light work.

In so doing, the ALJ found Claimant was able

to lift and carry 20 pounds occasionally and 10 pounds frequently.
Claimant could stand and/or walk six hours in an eight hour workday
and sit for six to eight hours in an eight hour workday.

Claimant

could only occasionally bend and stoop.

She could not climb ropes,

ladders,

reach

or

scaffolds

and

bilateral upper extremities.
every half hour.

could

not

overhead

with

the

Claimant required a sit/stand option

She could perform simple tasks with routine

5

supervision. Claimant could have occasional contact with co-workers
and supervisors, but must have no work-related contact with the
general public.

(Tr. 779).

After consulting with a vocational expert, the ALJ determined
that Claimant could perform the representative jobs of garment
sorter, electronics worker, and bakery worker, all of which the ALJ
determined existed in sufficient numbers in both the regional and
national economies.

(Tr. 798).

As a result, the ALJ determined

Claimant was not under a disability from June 25, 2007 through the
date of the decision.

(Tr. 799).

Claimant contends the ALJ did not properly evaluate whether she
met or equaled a listing at step three.

Claimant was evaluated on

two occasions for the administration of IQ tests. On June 26, 2008,
Ms.

Sally

Phillips,

a

vocational

rehabilitation

specialist,

administered the Beta III examination which “is designed to provide
a measure of non-verbal general intellectual ability.”

Claimant’s

Beta IQ score was 64, which was within the extremely low range of
69 and below.

(Tr. 518).

However, Ms. Phillips questioned the

validity of the scoring in light of the fact that Claimant needed
no additional examiner assistance during the testing and was able
to follow multi-step instructions without difficulty. A combination
of Claimant’s WRAT-4 scores, employment history, and successful
completion of technology center training classes indicated to Ms.

6

Phillips that the IQ scoring may not be accurate.

Id.

The second testing was administered by Dr. Denise LaGrand on
February

14,

2012.

She

gave

Claimant

the

Wechsler

Adult

Intelligence Scale - 4th edition and concluded Claimant had a full
scale IQ of 56.

Dr. LaGrand concluded Claimant’s overall cognitive

functioning was in the mentally retarded range.

Her low processing

speed index indicated Claimant would need more time to successfully
complete tasks.

Dr. LaGrand found Claimant appeared to be putting

forth her best effort on the exam such that the results appeared to
be a valid estimate of Claimant’s overall functioning.
The

ALJ

determined

that

“there

is

no

(Tr. 1447).

objective

evidence

supporting the onset during the developmental period (before age 22)
and no evidence of deficits in adaptive functioning necessary to
meet or equal the requirements of deficits in adaptive functioning.”
(Tr. 777)(parenthetical information added by this Court).

The ALJ

found no objective measure of Claimant’s IQ before age 22.
In an evaluation by Dr. Kathie Ward in June of 2008, she found
it problematic as to whether Claimant’s intellectual deficiency was
as a result of a head injury Claimant sustained in a motor vehicle
accident or was inherent but concluded the condition predated her
work impairment.

(Tr. 507).

However, Dr. Ward also found Claimant

presented with a fairly low level of cognitive functioning. Whether
this condition was as a result of a developmental delay or effects

7

from the accident trauma, “it does not appear to hamper her ability
to work as she has in the past.”

Id.

While Claimant’s school

transcripts do indicate low grades, some As and Bs are also present.
(Tr. 777, 1105).

This evidence does not consistently show an

inherent developmental deficiency before age 22.
Listing § 12.05 requires significantly subaverage general
intellectual functioning with deficits in adaptive functioning that
initially manifested during the developmental period - evidence that
demonstrates or supports an onset of impairment before age 22.
C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05.
experiences

subaverage

intellectual

20

While Claimant certainly

functioning,

evidence

of

deficits in adaptive functioning which began before age 22 is not
present in the record.

Claimant must satisfy all of these required

elements for a Listing to be met.
521, 530 (1990).

Sullivan v. Zebley, 493 U.S.

Claimant has failed to meet all of the required

elements.
Treating Physician’s Opinion Evidence
On December 31, 2008, Claimant’s treating physician, Dr. Vivek
Khetpal
Claimant

completed
could

occasionally

a

medical

continuously

lift/carry

up

source

statement.

lift/carry
to

20

up

pounds;

to

He
10

could

determined
pounds
less

and
than

occasionally push and pull with the right arm; could less than
occasionally bend, climb, balance, stoop, kneel, crouch, or crawl;

8

stand/walk up to 2 hours but less than 4 hours per work day; sit up
to 2 hours but less than 4 hours per work day; require one 10 minute
rest period per hour; and require rest to alleviate fatigue.
673-74).

(Tr.

In the narrative section of the statement, Dr. Khetpal

states Claimant uses a cane to walk due to an unstable gait and back
pain. (Tr. 674). He estimated Claimant’s pain to be “moderate” and
was severe enough to frequently interfere with Claimant’s attention
and concentration.
and sit quietly.

Claimant would need to take unscheduled breaks
She will experience good days and bad days and

need to be absent from work as a result of her impairments more than
4 days per month.

(Tr. 675).

The ALJ gave Dr. Khetpal’s opinion “little weight” because (1)
treatment notes included no hand limitations but he included such
limitations

in

his

source

statement;

(2)

the

opinion

was

inconsistent with the consultative examiners’ reports; (3) and the
preparation of the statement was “hurried” as evidenced by Dr.
Khetpal’s failure to include limitations for the left hand.
792).

(Tr.

As acknowledged by the ALJ, Dr. Khetpal suspected Claimant

suffered from carpal tunnel syndrome on the right. (Tr. 783, 1345).
The ALJ’s findings concerning Dr. Khetpal’s “hurried” preparation
of the statement represents unnecessary rank speculation.

In deciding how much weight to give the opinion of a treating
physician, an ALJ must first determine whether the opinion is

9

entitled to “controlling weight.”
1297, 1300 (10th Cir. 2003).

Watkins v. Barnhart, 350 F.3d

An ALJ is required to give the

opinion of a treating physician controlling weight if it is both:
(1) “well-supported by medically acceptable clinical and laboratory
diagnostic techniques”; and (2) “consistent with other substantial
evidence in the record.”

Id. (quotation omitted).

“[I]f the

opinion is deficient in either of these respects, then it is not
entitled to controlling weight.”

Id.

Even if a treating physician's opinion is not entitled to
controlling weight, “[t]reating source medical opinions are still
entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. § 404.1527.”

Id. (quotation omitted).

factors reference in that section are:

The

(1) the length of the

treatment relationship and the frequency of examination; (2) the
nature and extent of the treatment relationship, including the
treatment

provided

and

the

kind

of

examination

or

testing

performed; (3) the degree to which the physician's opinion is
supported by relevant evidence; (4) consistency between the opinion
and the record as a whole; (5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and (6)
other factors brought to the ALJ's attention which tend to support
or contradict the opinion.

Id. at 1300-01 (quotation omitted).

After considering these factors, the ALJ must “give good reasons”

10

for the weight he ultimately assigns the opinion.

20 C.F.R. §

404.1527(d)(2); Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th
Cir.

2004)(citations

omitted).

Any

such

findings

must

be

“sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinions and the reason for that weight.”

Id.

“Finally, if the

ALJ rejects the opinion completely, he must then give specific,
legitimate reasons for doing so.”

Watkins, 350 F.3d at 1301

(quotations omitted).
The

ALJ

did

not

provide

the

necessary

Khetpal’s opinion as required by Watkins.
contains

consistent

evidence

of

some

analysis

of

Dr.

The medical record

limitation

caused

by

Claimant’s hand condition. The longitudinal nature of Dr. Khepal’s
treatment

of

deference.
opinion

in

Claimant’s

condition

entitles

his

opinion

to

On remand, the ALJ shall re-evaluate Dr. Khetpal’s
light

of

the

complete

medical

record

and

the

requirements of Watkins.
Claimant was also evaluated by Dr. James R. Harrison on March
2, 2009.

He concluded Claimant experienced a significant level of

depression that interfered with cognitive and affective functioning.
He found moderate limitations in the ability to understand, remember
and carry out short and simple instructions; understand and remember
detailed instructions; and the ability to interact appropriately

11

with supervisors; a marked limitation in the ability to carry out
detailed

instructions;

make

judgments

on

simple,

work-related

decisions; to interact appropriately with the public and co-workers;
to respond appropriately to work pressures in a usual work setting;
respond appropriately to changes in a routine work setting; and the
ability

to

complete

a

normal

workday

and

workweek

without

interruptions from psychologically based symptoms and to perform at
a consistent pace without an unreasonable number and length of rest
periods.

(Tr. 657-58).

The ALJ found fault in the testing

performed by Dr. Harrison, found his opinion was inconsistent with
“conservative

mental

health

treatment”,

Claimant’s activities of daily living.
he gave the opinion “little weight.”

and

inconsistent

(Tr. 793).
Id.

with

Consequently,

This Court is somewhat

at a loss as to how conservative treatment could reduce the validity
of the testing performed by Dr. Harrison or adversely affect his
findings from that testing.
to

assess

the

Further explanation is also necessary

inconsistencies

activities of daily living.

the

ALJ

found

with

Claimant’s

On remand, the ALJ should further

explain his reasoning in weighing Dr. Harrison’s opinion.
Claimant finds fault in the briefing with the ALJ’s evaluation
of virtually every medical opinion in the record - and there are
many.

The ALJ is urged on remand to fully justify the weight

afforded each such opinion, expressly and in detail explaining the

12

basis for rejecting or giving considerable weight to each.
Credibility Determination
This

Court

credibility

and

has

examined

concludes

the

that

ALJ’s

his

detailed

bases

for

findings

discounting

credibility to be well-supported by the medical record.

on
her

The ALJ’s

findings as to credibility are “closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of
findings.”

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).

“Credibility determinations are peculiarly in the province of the
finder of fact” and, as such, will not be disturbed when supported
by substantial evidence.

Id.

This Court finds no error in the

ALJ’s credibility assessment.
Step Four and Five Analyses
Since the ALJ is required to re-evaluate the medical source
opinions, he shall reformulate his hypothetical questioning to the
vocational expert to mirror his findings on these opinions and any
modifications to the RFC determination which may result.
Conclusion
The

decision

of

the

Commissioner

is

not

supported

by

substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds the ruling of the Commissioner
of Social Security Administration should be and is REVERSED and the
matter REMANDED for further proceedings consistent with this Opinion

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and Order.
IT IS SO ORDERED this 30th day of September, 2015.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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