Cain v. Social Security Administration

Filing 21

OPINION AND ORDER by Magistrate Judge Kimberly E. West: The ruling of the Commissioner of Social Security should be and is REVERSED and the matter REMANDED for further proceedings. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
KATHY R. CAIN,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-14-057-KEW

OPINION AND ORDER

Plaintiff Kathy R. Cain (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).
Security

Act

“only

if

A claimant is disabled under the Social
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:

This Court’s review is limited to

first, whether the decision was supported by

1

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).

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substantial

evidence;

and,

second,

whether

the

correct

legal

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

standards were applied.

(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 4, 1964 and was 48 years old at
the time of the ALJ’s decision.

Claimant completed her high school

education and obtained a bachelor’s degree.
the past as an accountant.

Claimant has worked in

Claimant alleges an inability to work

beginning July 15, 2008 due to limitations resulting from hepatis
C,

arthritis,

spinal

impairments,

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shoulder

problems,

stomach

problems, cancer, pancreatic disease, and mental impairments.
Procedural History
On June 5, 2012, Claimant protectively filed for supplemental
security income pursuant to Title XVI (42 U.S.C. § 1381, et seq.)
of the Social Security Act.
initially

and

upon

Claimant’s application was denied

reconsideration.

On

June

3,

2013,

an

administrative hearing was held before Administrative Law Judge
(“ALJ”) B. D. Crutchfield in Tulsa, Oklahoma.
unfavorable decision on July 11, 2013.

He issued an

The Appeals Council denied

review of the ALJ’s decision on December 19, 2013. 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 a full range of sedentary
work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly consider, weigh, and evaluate the medical evidence; (2)
failing to evaluate whether Claimant meets or equals Listing 12.07;

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and (3) failing to perform a proper credibility determination.
Evaluation of the Medical Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of Hepatitis C, anxiety disorder, depressive
disorder, and chemical dependence by history.

(Tr. 17).

The ALJ

determined Claimant retained the RFC to perform sedentary work.
(Tr. 20).

After consultation with a vocational expert, the ALJ

found Claimant could perform the representative jobs of charge
account

clerk,

food

and

beverage

order

clerk,

and

telephone

information clerk, all of which the vocational expert testified
existed in sufficient numbers nationally and regionally.

(Tr. 24).

The ALJ, therefore, concluded Claimant was not disabled.

(Tr. 25).

Claimant first challenges the ALJ’s assessment of muscle
spasms, disorders of the spine, and remote history of cervical
cancer as non-severe impairments.

The ALJ determined that no

evidence in the record indicated that these conditions singly or in
combination with other impairments resulted in any significant
limitation in Claimant’s ability to do basic work activities.
17).

(Tr.

Claimant specifically concentrates on her back disorder,

contending the medical record indicates she was diagnosed with
“multilevel spondylosis” with the attendant consequences. On March
27, 2012, Dr. Lana Dawn Myers recognized Claimant’s complaints of
lower back pain but found she had negative straight leg raising and

5

5/5 muscle strength in her lower extremities, although she did have
tenderness in her lower lumbar paravertebral musculature. Dr. Myers
noted Claimant had not shown for her pain management appointments
because she “says did not get her mail.”
acute distress.

(Tr. 428).

Claimant presented in no

X-rays that were taken indicated

multilevel spondylosis with intervertebral disc spaces and vertebral
body heights within normal limits.
review was “no acute disease.”

The impression from the x-ray

(Tr. 508).

On May 4, 2012, Dr. Jorge R. Mera found Claimant moved her
extremities well with a normal gait.

(Tr. 576).

On June 22, 2012,

Dr. Douglas Young also indicated Claimant moved her extremities well
with a normal gait and intact gross motor function and gross sensory
function. (Tr. 393-94).

The medical record is consistent in these

findings through January of 2013.

(Tr. 385, 630, 651, 772, 776).

. The focus of a disability determination is on the functional
consequences of a condition, not the mere diagnosis. See e.g.
Coleman v. Chater, 58 F.3d 577, 579 (10th Cir. 1995)(the mere
presence of alcoholism is not necessarily disabling, the impairment
must render the claimant unable to engage in any substantial gainful
employment.); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)(the
mere diagnosis of arthritis says nothing about the severity of the
condition), Madrid v. Astrue, 243 Fed.Appx. 387, 392 (10th Cir.
2007)(the diagnosis of a condition does not establish disability,

6

the question is whether an impairment significantly limits the
ability

to

work);

Scull

v.

Apfel,

221

F.3d

1352

(10th

Cir.

2000)(unpublished), 2000 WL 1028250, 1 (disability determinations
turn on the functional consequences, not the causes of a claimant's
condition).

The fact multilevel spondylosis was diagnosed does not

translate into a severe impairment.

The ALJ did not err in finding

this condition as well as several others did not significantly limit
Claimant’s ability to work.
Claimant also contends her mental condition prevented her from
keeping her appointments.
assertion.

Nothing in the record supports this

At the time of the delinquency, Claimant stated she did

not get her mail.

This adversely reflects upon the credibility of

Claimant’s subsequent testimony that she has mental problems which
precluded her attendance.
Claimant argues the ALJ failed to account for her sleep
disorder.

While an ARPN did make a single reference to “insomnia”

in one medical record (Tr. 772), no diagnosis of a sleep disorder
which impairs Claimant’s ability to engage in basic work activities
appears in the record.

Accordingly, the ALJ’s findings on the

condition were accurate.

(Tr. 18).

Claimant next contends the ALJ should have included Somatoform
disorder due to her other conditions of pancreatic disease, CFS,
PTSD, H. Pylori infection, and left leg blockage.

7

Again, Claimant

refuses to acknowledge that this condition has not been diagnosed
or shown to impair Claimant’s ability to engage in basic work
activities.

Including these conditions in the ALJ’s analysis as

severe impairments would have no support in the medical record.
Claimant states the ALJ erred in failing to include this litany
of conditions in his hypothetical questioning of the vocational
expert.

“Testimony elicited by hypothetical questions that do not

relate with precision all of a claimant’s impairments cannot
constitute

substantial

decision.”

Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.

1991).

evidence

to

support

the

Secretary’s

In positing a hypothetical question to the vocational

expert, the ALJ need only set forth those physical and mental
impairments accepted as true by the ALJ.
F.2d 585, 588 (10th Cir. 1990).

Talley v. Sullivan, 908

Additionally, the hypothetical

questions need only reflect impairments and limitations borne out
by the evidentiary record.
(10th Cir. 1996).
RFC

findings

with

Decker v. Chater, 86 F.3d 953, 955

The ALJ’s questioning effectively mirrored his
precision

and

the

impairments

which

were

demonstrated in the record to have an effect upon her ability to
engage in basic work activities.
In a continuing line of disconnected arguments under the same
heading, Claimant contends the ALJ gave “great weight” to the

8

opinions of the consultative examiners while selectively choosing
among their findings to support his conclusion of non-disability.
Specifically, the ALJ did not include a two centimeter difference
in leg length and thigh circumference and various findings in mental
status testing in his consideration.

Again, none of these narrow

areas were shown in the evidence to cause anything but a minimal
impact upon Claimant’s ability to engage in basic work activities.
Claimant asserts the consultative examinations were stale,
having been performed in 2009.

Claimant has not demonstrated

through competent medical evidence that a significant change in her
condition has caused these examinations to be stale.
Claimant contends the ALJ rejected the opinion of Dr. Douglas
Nolan.

Dr. Nolan provided a medical source statement dated June 7,

2012 which included an estimation Claimant could not work for 3
months showing Claimant suffered from chronic pain, anxiety and
depression which could not be controlled with medication.
746).

(Tr.

He also included a statement from April of 2012 which

restricted Claimant from working for 3 months for essentially the
same reasons.

(Tr. 747).

The ALJ gave these opinions “no weight”

because they were not provided by an acceptable medical source and
were inconsistent with the medical evidence.

(Tr. 23).

The ALJ

does not explain the basis for not finding Dr. Nolan to be an
acceptable medical source let alone a treating physician, a status

9

it appears Dr. Nolan occupied.

In deciding how much weight to give the opinion of a treating
physician, an ALJ must first determine whether the opinion is
Watkins v. Barnhart, 350 F.3d

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

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

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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”
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 proceed through this analysis because he
mistakenly believed him to be a non-acceptable medical source.

On

remand, the ALJ shall proceed through the required analysis of Dr.
Nolan’s

opinions.

He

may

still

conclude

the

opinions

are

inconsistent with the medical record but he must proceed through
the appropriate rubric to do so.
Claimant again contends the ALJ failed to include restrictions
upon her ability to concentrate, persistence and pace in his
hypothetical questioning of the vocational expert.

11

This Court

finds the questions accurately reflected the limitations in these
areas.
Consideration of Listing 12.07 - Somatoform Disorder
Claimant suggests the ALJ should have considered whether she
met the criteria for Listing 12.07 for Somatoform disorder.

While

the ALJ did not specifically consider Listing 12.07, she did
consider Listings 12.04, 12.06, and 12.09.

Listing 12.07 requires

the following:
12.07 Somatoform Disorders: Physical symptoms for which
there are no demonstrable organic findings or known
physiological mechanisms.
1. The required level of severity for these disorders is
met when the requirements in both A and B are satisfied.
A. Medically documented by evidence of one of the
following:
1. A history of multiple physical symptoms of several
years duration, beginning before age 30, that have caused
the individual to take medicine frequently, see a
physician often and alter life patterns significantly; or
2. Persistent nonorganic disturbance of one of the
following:
a. Vision; or
b. Speech; or
c. Hearing; or
d. Use of a limb; or
e. Movement and its control (e.g., coordination
disturbance, psychogenic seizures, akinesia, dyskinesia;
or
f. Sensation (e.g., diminished or heightened).
3. Unrealistic interpretation of physical signs or
sensations associated with the preoccupation or belief
that one has a serious disease or injury;
And

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B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning;
or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of extended
duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1.
To satisfy the requirements of Listings 12.04, 12.06, and
12.09, Claimant must show he satisfies two of the following required
restrictions: (1) marked restriction in activities of daily living;
or (2) marked difficulties in maintaining social functioning; or (3)
marked difficulties in maintaining concentration, persistence, or
pace; or (4) repeated episodes of decompensation, each of extended
duration.

20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00C, 12.04,

12.06, 12.09.
No

medical

evidence

has

indicated

Claimant

has

marked

difficulties in any of the three functional areas common to all of
these listings and no repeated episodes of decompensation. Although
the ALJ did not expressly address Listing 12.07, Claimant would
still have not qualified for the Listing since the medical record
does not support the marked limitations required.

Only mild

limitations in activities of daily living and maintaining social
functioning were noted.

(Tr. 19, 182-84).

Moderate limitations in

maintaining concentration, persistence or pace were found by the
ALJ, citing medical sources.

(Tr. 19, 393-94, 772).

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No episodes

of decompensation were found.

(Tr. 19).

Claimant could not have

qualified for any of these Listings.
Credibility Determination
The ALJ noted the medical evidence which indicated Claimant’s
conditions

could

be

controlled

by

medication

questioning the credibility of her testimony.

as

a

basis

for

Because Dr. Nolan’s

reports must be reconsidered and he found Claimant’s conditions
could not be controlled with medication, the ALJ shall reassess
Claimant’s

credibility

after

considering

Dr.

Nolan’s

treating

physician’s report and affirmatively link his credibility findings
to the record.
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
and Order.
IT IS SO ORDERED this 30th day of March, 2015.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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