Ward v. Social Security Administration

Filing 17

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
TINA MICHELLE WARD,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-14-107-KEW

OPINION AND ORDER

Plaintiff Tina Michelle Ward (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 that Claimant was not disabled. For the reasons discussed

below, it is the finding of this Court that the Commissioner’s
decision

should

be

and

is

REVERSED

and

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).

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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 March 4, 1969 and was 41 years old at the
time of the ALJ’s decision.
of college.
license.

Claimant obtained her GED and one year

Claimant received her licensed practical nurse (“LPN”)

Claimant has worked in the past as an LPN, nurse’s aide,

and fast food assistant manager.

Claimant alleges an inability to

work beginning November 1, 2007 due to limitations resulting from
fibromyalgia, bipolar disorder, and hypertension.
Procedural History

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On

September

10,

2008,

Claimant

protectively

filed

for

disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) of the Social Security Act. Claimant’s application was denied
initially

and

upon

reconsideration.

After

an

administrative

hearing, the Administrative Law Judge (“ALJ”) entered an unfavorable
ruling on Claimant’s application on July 28, 2010.

The Appeals

Council denied review and Claimant appealed to this Court. On March
25, 2013, this Court reversed and remanded the case for further
consideration.
On November 18, 2013, ALJ Bernard Porter conducted a second
administrative hearing in Poteau, Oklahoma.
the

ALJ

entered

application.

a

second

unfavorable

On January 31, 2014,
ruling

on

Claimant’s

Claimant did not seek review by the Appeals Council.

As a result, the decision of the ALJ represents the Commissioner’s
final decision for purposes of further appeal.

20 C.F.R. §§

404.984, 416.1484.
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 light work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to

4

properly assess the opinion evidence; (2) reaching an improper RFC
determination; and (3) making erroneous findings at step five.
Consideration of the Opinion Evidence
In his decision, the ALJ found Claimant suffered from the
severe

impairments

headaches,

of

rheumatism,

fibromyalgia,
NOS,

right

hypertension,

shoulder

migraine

bursitis,

chronic

obstructive pulmonary disease, diabetes mellitus, obesity, and
bipolar disorder.

(Tr. 510).

The ALJ determined Claimant retained

the RFC to perform light and sedentary 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 hours in an eight hour
workday.

Claimant could push/pull as much as she could lift/carry.

Claimant could occasionally reach overhead, occasionally climb ramps
and stairs but never climb ladders, ropes, and scaffolds or crawl.
She could frequently balance, stoop, and crouch. The ALJ determined
Claimant

must

avoid

exposure

to

unprotected

heights,

moving

mechanical parts, dust, fumes, gases, and temperature extremes. She
required a sit/stand option that allowed for a change in position
at least every 30 minutes.

Due to psychologically based factors,

Claimant could perform simple tasks and make simple work related
decisions.

She could have occasional interaction with supervisors

and co-workers but no interaction with the public.

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Claimant may be

off task for five percent of the day and miss one day per month.
(Tr. 516).
After consulting with a vocational expert, the ALJ determined
that Claimant could perform the representative jobs of housekeeping
cleaner, hospital product assembler, and conveyor line baker, all
of which were found to exist in sufficient numbers in both the
regional and national economies.

(Tr. 525).

As a result, the ALJ

determined Claimant was not under a disability from November 1, 2007
through the date of the decision.

(Tr. 526).

Claimant contends the ALJ did not failed to properly consider
the medical opinion evidence in the case.

Claimant specifically

asserts the ALJ failed to properly evaluate the opinions of his
treating physicians, Dr. Thomas R. Dykman, Claimant’s treating

rheumatologist

and

Dr.

Donald

Chambers,

Claimant’s

treating

psychiatrist.
On November 2, 2009, Dr. Dykman completed a medical source
statement. Dr. Dykman stated Claimant could occasionally lift/carry
less than 10 pounds and frequently less than 10 pounds.

He also

found Claimant could stand/walk for less than 2 hours in an 8 hour
workday, sit for less than 6 hours in an 8 hour workday, limited
pushing and/or pulling in the upper and lower extremities with the
notation that “pain would prevent.” Dr. Dykman stated that Claimant
could never climb, balance, kneel, crouch, or crawl.

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He noted that

“pain would prevent & pose a threat to health.”

(Tr.

501-02).

He

also found Claimant was limited in reaching in all directions,
handling,

fingering,

prevent.”

and

feeling,

again

stating

“pain

would

Claimant was determined to be limited in exposure to

temperature extremes, vibration, humidity/wetness, and hazards,
concluding these conditions “would aggravate pain and pose a threat
to injury.”

(Tr. 503).

The ALJ gave Dr. Dykman’s opinion “diminished weight,” stating
it was not supported nor consistent with the medical record as a
whole.

(Tr. 521).

Specifically, the ALJ found the limitations in

the medical source statement were inconsistent with Dr. Dykman’s own
treatment records, noting Dr. Dykman stated in a letter from March
20, 2009 that Claimant could not travel due to pain yet Claimant
attended her appointments with Dr. Dykman in Fayetteville, Arkansas
and had traveled with her husband to Ardmore, Oklahoma.

(Tr. 521).

The ALJ’s choice to select this rather minimal discrepancy in the
totality of Dr. Dykman’s treatment records is curious.

The letter

states in whole
This individual is under my care for fibromyalgia. She
is unable to be gainfully employed in any work. She is
unable to sit, stand, walk, lift, carry, handle objects
or travel due to pain.
Please refer to my medical
records for further information.
(Tr. 494).
This broad based statement in a “to whom it may concern” type

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letter expressly refers the reader to the medical record.

In the

course of treating Claimant’s fibromyalgia, Dr. Dykman found she
experienced a persistent, moderate dull, aching pain which was
aggravated by movement without relief.

(Tr. 407, 410, 413).

The

pain affected bilateral knee, shoulder, neck, hip ad lower and upper
back.

(Tr. 413).

motion.

Both hands were positive for decreased range of

(Tr. 408).

Claimant tested positive for anywhere from 6

to 12 of the 20 total tender points.
421).

(Tr. 408, 410, 413, 415, 419,

Claimant also demonstrated normal station and gait until the

September 22, 2008 appointment when she was found to have a mild
slowing of gait.

(Tr. 421).

The ALJ’s implication that there was an unwarranted change in
Dr.

Dykman’s

observance

of

Claimant’s

supposition on the ALJ’s part.
Dykman

limiting

Claimant’s

gait

represents

The ALJ also took issue with Dr.

handling

abnormalities in Claimant’s hands.

and

fingering,

(Tr. 522).

ALJ

also

finds

that

Dr.

Dykman

did

noting

no

However, the record

clearly notes decreased range of motion in both hands.
The

pure

not

(Tr. 408).

expressly

limit

Claimant’s climbing, balancing, kneeling, or crouching in his
medical records.

It is not surprising that these functional

limitations would not be noted in the medical record.

Limitations

in these areas are not inconsistent with the pain and other
objective observations made during Dr. Dykman’s examinations.

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Most

troubling

is

the

ALJ’s

intimation

that

Dr.

Dykman

expressed his opinions “in an effort to assist a patient with whom
he or she sympathizes for one reason or another.”

(Tr. 522).

This

type of reasoning smacks of the old “treating physician’s report

appears to have been prepared as an accommodation to a patient”
statement that has been roundly rejected as a basis for reducing
the controlling weight normally afforded a treating physician’s
opinion.

Miller v. Chater, 99 F.3d. 972, 976 (10th Cir. 1996)

citing Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987).

The ALJ

was obligated to re-contact Dr. Dykman to ascertain the basis for
the functional limitations found by him rather than speculate.
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002).

On

remand, the ALJ shall reassess Dr. Dykman’s opinion, re-contact him
if necessary, or retain further consultative professionals to
assist in his assessment.
Dr. Chambers completed a Mental Medical Source Statement on
July 26, 2009.
functional

He concluded Claimant was markedly limited in the

areas

concentration

for

of

the

extended

ability

to

periods,

maintain
the

attention

ability

to

and

perform

activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances, the ability to complete a
normal

workday

and

workweek

without

interruptions

from

psychologically based symptoms and to perform at a consistent pace

9

without an unreasonable number and length of rest periods, the
ability to interact appropriately with the general public, the
ability

to

accept

instructions

and

respond

appropriately

to

criticism from supervisors, and the ability to get along with
coworkers or peers without distracting them or exhibiting behavioral
extremes. (Tr. 497-99). He set forth his diagnosis of bipolar mood
disorder and concluded the “symptoms are chronic and treatment
resistant.”

(Tr. 499).

The ALJ concluded Dr. Chambers’ opinion was entitled to
“diminished weight” as not being fully supported by the medical
evidence of record as a whole.

(Tr. 520).

The ALJ specifically

found Dr. Chambers did not provide any treatment notes revealing
marked limitations in Claimant’s ability to function.

(Tr. 520).

In fact, Dr. Chambers’ treatment notes are replete with references
to

Claimant’s

inability

to

get

along

with

others

at

work,

depression, bouts of being “down” and unable to think about
anything and being “up” when her thoughts race, problems with
attentiveness, being snappy and irritable, complaints at work,
scattered thoughts, a mind never at rest, and being tearful and
depressed.

(Tr. 213-14, 219, 222, 225).

basis

rejecting

for

Dr.

Chambers’

The ALJ also indicated a

limitations

ability to maintain her nursing license.

was

(Tr. 521).

Claimant’s

However, the

ALJ did not reference nor apparently explore the requirements for

10

doing so or whether they would be difficult for someone with mental
impairments to maintain the license.

Again, the ALJ should re-

examine Dr. Chambers’ opinion and provide further explanation for
rejecting his findings on limitations.
RFC Determination
Since the ALJ must reassess the opinions of Claimant’s treating
physicians, he will also re-evaluate his RFC findings in light of
those opinions.
Step Five Analysis
Again, since the ALJ is reassessing the opinions of the
treating physicians and re-evaluating his RFC determination, the ALJ
should

also

reformulate

his

hypothetical

questioning

of

the

vocational expert to coincide with any modifications to the RFC.
Conclusion

The

decision

of

the

Commissioner

is

not

supported

by

substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), 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.

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

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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