Bales v. Social Security Administration
Filing
20
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
JASON W. BALES,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-14-297-KEW
OPINION AND ORDER
Plaintiff Jason W. Bales (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 April 1, 1978 and was 34 years old at the
time of the ALJ’s decision.
through the ninth grade.
Claimant completed his education
Claimant has worked in the past as a
highway construction laborer, maintenance and janitor worker, and
glass recycler.
Claimant alleges an inability to work beginning
June 16, 2006 due to limitations resulting from low back pain, hip
pain, pain in her feet, hands, shoulders, legs, neck, leg numbness,
and depression.
3
Procedural History
On May 12, 2011, 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.
Claimant’s applications
were denied initially and upon reconsideration.
On November 6,
2012, an administrative hearing was held before Administrative Law
Judge (“ALJ”) Gene M. Kelly in Tulsa, Oklahoma.
unfavorable decision on December 7, 2012.
He issued an
The Appeals Council
denied review of the ALJ’s decision on May 20, 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, he did not meet a listing and retained the residual
functional capacity (“RFC”) to perform both sedentary and light work
with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly evaluate whether Claimant’s impairments met or equaled a
listing;
evidence;
(2)
and
failing
(3)
to
properly
failing
to
4
evaluate
perform
a
the
medical
proper
source
credibility
determination.
Evaluation of Listings
In his decision, the ALJ found Claimant suffered from the
severe impairments related to his back, depression, anxiety, neck,
hands, legs, feet, shoulders, and hips.
(Tr. 22).
The ALJ
determined Claimant retained the RFC to perform sedentary and light
work.
In so doing, the ALJ found Claimant was able to lift and
carry 20 pounds occasionally, stand and walk eight hours in an eight
hour
workday,
sit
for
six
hours
in
an
eight
hour
workday,
occasionally climb, bend, stoop, squat, kneel, crouch, crawl,
operate
foot
controls,
reach
overhead
with
extremity, and occasionally twist the torso.
the
right
upper
The ALJ determined
Claimant had a slight limitation in the ability to push and pull
with the right upper extremity, a slight limitation in fingering,
feeling, and gripping such that he should not be doing a lot of
extensive small, tedious tasks with his fingers and hands, like
working with nuts and bolts.
The ALJ also found Claimant had a slight limitation in twisting
his head, but he should be able to twist his head more than
occasionally, but less than continuously.
temperature
extremes,
rough
and
uneven
heights, fast and dangerous machinery.
Claimant should avoid
surfaces,
unprotected
Claimant required easy
access to restrooms such that restrooms are available and on-site.
5
Claimant was found to be able to perform simple, routine, and
repetitive tasks.
The ALJ continued his recitation of Claimant’s limitations by
stating in his RFC findings that Claimant had a slight limitation
in contact with the public, co-workers, and supervisors.
Claimant
was found to be able to interact with the public on a brief and
cursory basis, such as fast food worker’s contact with the public
or work as a bank teller, although this work would be more complex
than Claimant was found to be able to do.
Claimant’s interaction
with co-workers should be brief and cursory.
Claimant should not
be an integral member of a team who will participate in goal setting
or process planning.
The ALJ determined Claimant was able to
perform with routine supervision.
He had the symptomatology from
a variety of sources that produced mild to moderate to chronic pain
that was of sufficient severity to be noticeable to him at all times
but he should be able to remain attentive and responsive in a work
setting and should be able to carry out normal work assignments.
Additionally, Claimant took medication that could produce some
symptomatology, but the ALJ determined Claimant should be able to
perform as restricted in a work setting.
(Tr. 24-25).
After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of arcade
attendant, video clerk, and clerical mailer, all of which the ALJ
6
determined existed in sufficient numbers in both the regional and
national economies.
(Tr. 31).
As a result, the ALJ determined
Claimant was not under a disability from June 16, 2006 through the
date of the decision.
Id.
Claimant contends the ALJ did not make the necessary findings
before concluding he did not meet or equal Listing § 1.04.
The ALJ
stated in his decision that he considered Claimant’s back complaints
under this listing pertaining to spinal disorders, but concluded
that “the record is absent objective (sic) findings necessary to
conclude
criteria.”
that
the
claimant’s
impairments
meet
Listing
1.04
(Tr. 23).
The portion of Listing § 1.04 which is applicable in this case
states:
Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebra
fracture), resulting in compromise of a nerve root
(including cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine)
*
*
*
At step three, Claimant bears the burden of demonstrating that
7
her condition meets or equals all of the specified criteria of the
particular listing.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Although Claimant cites to portions of the medical record to
indicate he was diagnosed with nerve root compression, none of the
cited records expressly make that finding.
345).
(Tr. 304, 306-08, 311,
He did experience some limitation of motion in his spine as
evidenced in the record.
(Tr. 283, 291, 339).
Claimant also
suffered some muscle weakness. (Tr. 283, 291). He experienced some
sensory loss.
(Tr. 306, 345).
raising upon testing.
He also had positive straight leg
(Tr. 340, 345).
Because not all of the
listing criteria have been met, the ALJ did not err in finding
Claimant failed to meet or equal Listing § 1.04.
Claimant also asserts the ALJ failed to fully consider the
effects of his obesity as a non-severe impairment.
The ALJ found
no functional limitations upon Claimant based upon his obesity.
(Tr. 22).
An ALJ is required to consider “any additional and
cumulative effects” obesity may have upon other conditions from
which a claimant suffers, recognizing that obesity combined with
other impairments may increase the severity of the condition.
Sec. R. 02-1p.
Soc.
However, as recognized by the Tenth Circuit Court
of Appeals, speculation upon the effect of obesity is discouraged.2
2
“[W]e will not make assumptions about the severity or functional
effects of obesity combined with other impairments.” Soc. Sec. R. 0201p.
8
See, Fagan v. Astrue, 2007 WL 1895596, 2 (10th Cir.).
No medical
evidence is present in the record to indicate Claimant’s obesity has
restricted his ability to work or exacerbated any other of his
severe or non-severe impairments.
Although Claimant contends the
report of the consultative examiner, Dr. William Grubb, indicates
Claimant’s
obesity
posed
such
a
limitation,
the
report
only
references obesity as a condition from which Claimant suffers and
not as a condition which poses a functional limitation.
(Tr. 337).
Evaluation of Medical Source Evidence
Claimant asserts the ALJ failed to properly evaluate the
opinion of his treating physician, Dr. Emil Milo, an orthopedic
surgeon.
In a report from December 5, 2006, Dr. Milo opined that
Claimant “should talk to his Workman’s Compensation carrier for
retraining, in view of his young age, for something lighter and more
sedentary.” (Tr. 295). The ALJ recognized this limitation, stating
in his decision, “the undersigned infers that by the use of these
terms, Dr. Milo meant that the claimant could not do heavy work, but
that he could return to some work at a lower level.
Ex. 2F.
extent that this is an opinion, it is given great weight.”
To the
(Tr.
29).
In deciding how much weight to give the opinion of a treating
physician, an ALJ must first determine whether the opinion is
entitled to “controlling weight.”
9
Watkins v. Barnhart, 350 F.3d
1297, 1300 (10th Cir. 2003). An ALJ is required to give the opinion
of a treating physician controlling weight if it is both: (1) “wellsupported 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” for the weight he
ultimately
assigns
the
opinion.
10
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).
While
it
is
unclear
whether
giving
Dr.
Milo’s
opinion
“controlling weight” would alter the ultimate conclusion regarding
the ALJ’s findings, the ALJ was required to consider the Watkins
factors in assessing the weight to which the treating physicians’
opinion is entitled.
Claimant also challenges the manner in which the ALJ assessed
the weight to the opinions of the consultative examiner, Dr. Kenneth
R. Trinidad - to whose opinion the ALJ afforded “some weight, but
less weight than the opinion of Dr. Boone” (Tr. 27) and Dr. R. Tyler
Boone - whose opinion was given “great weight, but not significant
weight” by the ALJ.
(Tr. 29).
All of these assessments smack of
arbitrariness in their conclusions since the ALJ does not proceed
through the evaluative factors required by the case authority.
His
employment of some nonstandard terms in assessing the weight to the
opinions gives this Court little reference in determining the
relative weight between the opinion.
11
On remand, the ALJ shall
expressly consider the weight of each of the referenced opinions
utilizing the conventional factors urged by the Tenth Circuit Court
of Appeals.
Credibility Determination
Claimant
credibility.
credibility
also
It
should
contends
is
be
the
ALJ
improperly
well-established
closely
and
that
assessed
“findings
affirmatively
his
as
to
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.
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 board); and (7) any
12
other factors concerning the individual's functional limitations and
restrictions due to pain or other symptoms.
1996 WL 374186, 3.
It must
Soc. Sec. R. 96-7p;
be noted that the ALJ is not required
to engage in a “formalistic factor-by-factor recitation of the
evidence.”
The
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
ALJ
recited
Claimant’s
testimony
that
he
drives
approximately 150 miles per week delivering and picking up his child
to school. He suffers from no medicinal side effects but takes pain
medication and hot showers to relieve his pain.
He performs some
house work, occasionally cooks, and occasionally watches television
and
reads.
Claimant
comprehension.
experiences
problems
with
reading
He has gained weight over the last year, has
problems sleeping and is uncomfortable.
Claimant stated he can
stand for about 15 minutes, sit for about an hour, and walk about
three
blocks.
depressed.
Temperature
and
weather
affects
him.
He
is
(Tr. 25-26).
The ALJ gave short consideration to Claimant’s testimony,
utilizing the boilerplate and wholly uninformative statement that
After careful consideration of the evidence, the
undersigned
finds
that
the
claimant’s
medically
determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual
functional capacity assessment.
(Tr. 26).
13
This Court has on many occasions stated that this finding is
improper
because
determined
it
before
necessarily
Claimant’s
states
that
testimony
has
an
RFC
been
has
been
considered.
Moreover, this statement consists of the entirety of the ALJ’s
credibility assessment which is not helpful to this Court’s analysis
of the propriety of the evaluation.
The ALJ appears to completely
reject Claimant’s statements considering the level of restriction
but then states that his testimony was not completely discounted as
he will have “some difficulties.”
(Tr. 29).
The ALJ then appears
to endorse testimony from Claimant and Dr. Boone which supports that
he can perform sedentary work - an inconsistent finding with his RFC
which states he can perform both sedentary and light work.
24).
On
remand,
the
ALJ
shall
properly
assess
(Tr.
Claimant’s
credibility and correct the inconsistencies in his decision.
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.
14
IT IS SO ORDERED this 28th day of September, 2015.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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