Davenport v. Social Security Administration

Filing 28

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

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
WENDY R. DAVENPORT,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-14-132-KEW

OPINION AND ORDER

Plaintiff Wendy R. Davenport (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 June 15, 1979 and was 34 years old at the
time of the ALJ’s decision.

Claimant completed her high school

education. Claimant has worked in the past as an assistant manager,
case manager, and mental health technician.

Claimant alleges an

inability to work beginning December 7, 2010 due to limitations
resulting from abdominal problems and mental health issues.
Procedural History
On January 3, 2011, Claimant protectively filed for disability

3

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.

Claimant’s applications

were denied initially and upon reconsideration.

On November 15,

2012, an administrative hearing was held before Administrative Law
Judge (“ALJ”) John W. Belcher in Tulsa, Oklahoma.
unfavorable decision on December 20, 2012.

He issued an

The Appeals Council

denied review of the ALJ’s decision on February 5, 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

and

light

work

with

limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
perform a proper evaluation at steps four and five of the sequential
evaluation; (2) failing to properly evaluate the medical

and non-

medical source evidence; and (3) failing to perform a proper
credibility determination.

4

Step Four and Five Evaluations
In his decision, the ALJ found Claimant suffered from the
severe impairments of endometriosis, ovarian lesions, ovarian cysts,
hysterectomy, irritable bowel syndrome, and affective disorder.
(Tr. 19).

The ALJ determined Claimant retained the RFC to perform

light work.

In so doing, the ALJ found Claimant was able to lift

and carry 20 pounds occasionally and 10 pounds frequently, while
pushing and pulling the same weights.

Claimant could stand and/or

walk six hours in an eight hour workday, sit for six to eight hours
in an eight hour workday, all with normal breaks.

Claimant could

perform simple tasks and some complex tasks up to six steps but her
contact with co-workers, supervisors, and the public should be
limited to superficial.

(Tr. 21).

After consulting with a vocational expert, the ALJ determined
that Claimant could perform the representative jobs of cashier II,
housekeeper,

and

electrical

assembler,

all

of

which

the

ALJ

determined existed in sufficient numbers in both the regional and
national economies.

(Tr. 26).

As a result, the ALJ determined

Claimant was not under a disability from July 1, 2008 through the
date of the decision.

(Tr. 27).

Claimant contends the ALJ did not take her use of a cane into
consideration in determining Claimant’s RFC and the jobs she could
perform at step four and five.

The ALJ acknowledged that Claimant

5

testified that she “uses a cane to walk that was prescribed by her
doctor two or three months ago.”

(Tr. 22).

Claimant makes

reference to a medical record from Dr. Raymond Sorenson which is
undated but from the dates on the surrounding records was in all
likelihood authored sometime shortly after August of 2012.

Under

the section of the form labeled “Meds”, Dr. Sorenson made the
notation “cane.”

(Tr. 725).

In the questioning of the vocational expert, the ALJ formulated
a question which included the limitations contained in his RFC
assessment of Claimant. (Tr. 67). The vocational expert identified
the three light work jobs which found their way into the ALJ’s
decision as employment Claimant could perform.

(Tr. 26, 68).

The ALJ then added further restrictions not contained in the
RFC and asked a second hypothetical question.

(Tr. 68).

The

vocational expert identified three sedentary jobs which could be
performed under these additional restrictions - clerical mailer,
table worker, and optical goods assembler.

(Tr. 69).

The ALJ then

asked whether the use of a cane would affect the individual’s
ability to do these sedentary jobs, to which the vocational expert
responded in the negative, stating the jobs were “mainly just
sitting jobs. . . .”

(Tr. 70).

Defendant suggests (1) a cane was never prescribed to Claimant;
(2) Claimant’s credibility was found wanting by the ALJ; and (3)

6

even if a cane were included in the RFC, the vocational expert
testified that Claimant could still perform the sedentary jobs
identified.

On the first point, the medical record arguably

indicates that a cane was prescribed for Claimant.

If the ALJ had

a question as to whether this were true given the reference in the
record, he should have either re-contacted Dr. Sorenson or retained
a consultative examiner to ascertain the need for the cane.

C.F.R.

§

retaining

416.909a(2)(b)(duty
a

consultative

to

source

develop
if

the

there

is

20

record

includes

“[a]

conflict,

inconsistency, ambiguity or insufficiency in the evidence must be
resolved, and we are unable to do so by recontacting your medical
source.”).
Moreover, the ALJ’s credibility analysis made it unclear
whether he was rejecting Claimant’s testimony concerning the use of
a cane or her prescription for the assistive device.
challenged

Claimant’s

statements

“concerning

the

He merely
intensity,

persistence, and limiting effects” of her various conditions.

(Tr.

24). Instead, he concluded Claimant’s testimony “is only considered
partially

true”

credibility.

Id.

and

inconsistencies

“reduced”

Claimant’s

Nothing specifically is referenced in the

decision regarding a complete rejection for the necessity to use a
cane or whether the device was prescribed.

He must have at least

found the use credible to have included the cane in the hypothetical

7

questioning of the vocational expert.
Defendant’s attempt to buttress the actual findings in the
decision with the testimony at the hearing falls short.

If the ALJ

intended

work,

to

find

Claimant

could

perform

sedentary

conclusions regarding light work would be erroneous.

his

The findings

are entirely dependent upon the ALJ’s conclusions on the necessity
and prescription of a cane - a conclusion he did not expressly make
in his decision. On remand, the ALJ shall consider whether Claimant
needs a cane to ambulate, whether she was prescribed a cane as a
required assistive device, and whether these findings affect his RFC
evaluation and his ultimate findings at steps four and five.
Evaluation of Medical and Non-Medical Sources
Claimant also asserts the ALJ failed to explain the basis for
rejecting the opinions of the non-examining, non-treating mental
health reviewers on their evaluation of Claimant’s activities of
daily living while accepting their opinions in other contexts.

In

evaluating the severity of Claimant’s mental impairments under the
paragraph B criteria for determining whether Claimant met a listing,
the ALJ concluded Claimant had a mild restriction in activities of
daily living, moderate difficulties in social functioning, and
moderate difficulties in concentration, persistence, or pace. (Tr.
20).
Claimant contends the ALJ failed to adopt the finding of the

8

state reviewer who concluded Claimant had a moderate limitation in
activities of daily living.
Review

Technique

dated

Dr. Carolyn Goodrich in a Psychiatric

August

30,

2011

did

find

a

moderate

limitation in activities of daily living, social functioning, and
maintaining concentration, persistence, or pace.

(Tr. 635).

Claimant fails to demonstrate how the ALJ’s finding would have
altered the conclusion that Claimant did not meet a listing, since
the

referenced

listing

12.04

requires

a

finding

of

marked

restriction in two of the four designated areas of performance.

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

20

Nothing in the

evidence suggests that Claimant meets this criteria.

Any error

attributed to this action by the ALJ is considered harmless.
Claimant also asserts the ALJ failed to consider “several
letters” submitted by members of the community and family which
supported her complaints.

(Tr. 246-54).

The decision does not

expressly state these letters were considered in the formulation of
the conclusions reached or that they were taken into consideration
in assessing Claimant’s credibility.

These letters do occupy

evidentiary status as an “other source” and should be considered on
remand.

The ALJ is not required to discuss the weight given to the

opinions reflected in these sources but he must demonstrate in the
decision that he considered them.
914-15 (10th Cir. 2006).

Blea v. Barnhart, 466 F.3d 903,

On remand, the ALJ shall consider the

9

evidence from these “other sources.”
Credibility Determination

10

Claimant also challenges the adequacy of the ALJ’s credibility
assessment.

This Court has already called into question the

inconsistencies in the ALJ’s credibility evaluation concerning the
use of a cane.

He also failed to consider the lay witnesses’

statements and the effect such statements may have upon bolstering
Claimant’s credibility.
It is well-established that “findings as to credibility should
be closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.”
F.3d 387, 391 (10th Cir. 1995).

Kepler v. Chater, 68

“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.

Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or other
symptoms; (3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or
other symptoms; (5) treatment, other than medication, the individual
receives or has received for relief of pain or other symptoms; (6)
any measures other than treatment the individual uses or has used
to relieve pain or other symptoms (e.g., lying flat on his or her
back, standing for 15 to 20 minutes every hour, or sleeping on a

11

board); and (7) any other factors concerning the individual's
functional
symptoms.

limitations

and

restrictions

due

to

Soc. Sec. R. 96-7p; 1996 WL 374186, 3.

pain

It must

or

other

be noted

that the ALJ is not required to engage in a “formalistic factor-byfactor recitation of the evidence.” Qualls v. Apfel, 206 F.3d 1368,
1372 (10th Cir. 2000).
The ALJ shall re-evaluate Claimant’s credibility in light of
the findings made herein.

On remand, he shall make the necessary

affirmative link between the medical evidence and his findings on
credibility.
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 28th day of September, 2015.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

12