Brewer v. Social Security Administration

Filing 21

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
JACK D. BREWER,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-14-375-KEW

OPINION AND ORDER

Plaintiff Jack D. Brewer (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.
discussed

below,

it

is

the

finding

of

this

For the reasons
Court

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 in the national economy. . .”
§423(d)(2)(A).

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.
(10th

Cir.

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

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

800

&

Human

Servs.,

933

F.2d

799,

(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 February 15, 1962 and was 50 years old at
the time of the ALJ’s decision.

Claimant obtained his GED.

Claimant has worked in the past as a construction worker and
construction foreman.
beginning

July

15,

Claimant alleges an inability to work
2010

due

to

limitations

resulting

from

osteoarthritis with accompanying pain in his hands, neck, low back,
and knees, hypertension, and mental problems.

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Procedural History
On

February

15,

2011,

Claimant

protectively

filed

for

supplemental security income pursuant to Title XVI (42 U.S.C. §
1381, et seq.) of the Social Security Act.

Claimant’s application

was denied initially and upon reconsideration.

On January 10,

2013, an administrative hearing was held before Administrative Law
Judge (“ALJ”) Edmund C. Werre in Tulsa, Oklahoma.
unfavorable decision on January 4, 2013.

She issued an

The Appeals Council

denied review of the ALJ’s decision on July 1, 2014.
the

decision

of

the

ALJ

represents

the

decision for purposes of further appeal.

As a result,

Commissioner’s

final

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 light work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
provide a proper analysis at steps four and five; (2) failing to
properly evaluate the medical source evidence; and (3) failing to
perform a proper credibility determination.

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Step Four and Five Evaluation
In his decision, the ALJ found Claimant suffered from the
severe

impairments

of

osteoarthritis,

diabetes

mellitus,

hypertension, cyclothymic disorder, depressive disorder, posttraumatic stress disorder (“PTSD”), and alcohol abuse.

(Tr. 17).

The ALJ determined Claimant retained the RFC to perform light work.
In so doing, the ALJ found Claimant could occasionally lift up to
20 pounds and frequently up to 10 pounds; stand/walk six hours in
an eight hour workday; sit for six hours in an eight hour workday;
understand, remember, and carry out simple instructions consistent
with unskilled work that is repetitive and routine in nature and
able to relate and interact with co-workers and supervisors on a
work-related basis only with no or minimal interaction with the
general public.

The ALJ concluded Claimant could adapt to a work

situation with these limitations and his medications could not
preclude him from remaining reasonably alert to perform required
functions presented in a work setting.

(Tr. 19).

After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of office
cleaner,

food

prep

worker,

grinding

machine

operator,

and

production 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

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a disability since February 15, 2011, the date the application was
filed.

Id.

Claimant contends the ALJ failed to pose an appropriate and
complete hypothetical question to the vocational expert which
included all of his functional limitations. Claimant first asserts
that one of the representative jobs identified by the vocational
expert - production assembler - is non-existent. The Dictionary of
Occupational Titles (“DOT”) has no job identified under the number
stated by the vocational expert - DOT# 715.697-094.

The ALJ

altered that number to DOT# 692.685-2715.697-094 but that number is
also not a valid number under the DOT.

While this discrepancy is

bothersome, the vocational expert and ALJ did identify three other
jobs that Claimant could allegedly perform.

Thus, the error is

harmless - even with the elimination of this job for consideration
at step five.
Claimant next contends the ALJ failed to include a limitation
in the ability to grasp in his questioning.

On June 7, 2011, Dr.

Mohammed Quadeer performed a consultative physical examination of
Claimant.

Among his findings was a statement that Claimant’s

ability to effectively oppose the thumb to the fingertips was
“weak” in the left thumb and his ability to grasp tools such as a
hammer was “weak” (4/5) in his left hand.

(Tr. 197).

A similar

limitation was found in a treatment record from NeoHealth Westville

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Family Medical Center which noted Claimant was “unable to touch all
fingers, particularly on L hand . . . .”

(Tr. 212).

However, Dr.

Quadeer also found Claimant’s grip strength was 5/5, bilaterally
strong and firm.

He also determined Claimant was able to do both

gross and fine manipulation with the hands.
to thumb opposition was adequate.

Claimant’s fingertip

(Tr. 201).

“[R]esidual functional capacity consists of those activities
that a claimant can still perform on a regular and continuing basis
despite his or her physical limitations.”

White v. Barnhart, 287

F.3d 903, 906 n. 2 (10th Cir. 2001).

A residual functional

capacity assessment “must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical
facts ... and nonmedical evidence.” Soc. Sec. R. 96–8p.

The ALJ

must also discuss the individual's ability to perform sustained
work activities in an ordinary work setting on a “regular and
continuing basis” and describe the maximum amount of work related
activity the individual can perform based on evidence contained in
the case record. Id.

The ALJ must “explain how any material

inconsistencies or ambiguities in the evidence in the case record
were

considered

and

resolved.”

Id.

However,

there

is

“no

requirement in the regulations for a direct correspondence between
an RFC finding and a specific medical opinion on the functional
capacity in question.”

Chapo v. Astrue, 682 F.3d 1285, 1288 (10th

7

Cir. 2012).
evidence.

The ALJ’s RFC assessment was supported by substantial
The level of minor restriction in the ability to grasp

found in the assessment does not require additional restrictions in
the RFC given Dr. Quadeer’s report.
Claimant

also

asserts

the

ALJ

should

have

included

a

restriction for using an assistive device in his RFC. Claimant was
prescribed a walking boot and cane by Dr. Tye Ward in September of
2012.

(Tr. 308).

However, Dr. Ward also noted the left lower

extremity was normal on inspection.
of motion was normal.
left leg.

Palpation was normal.

Range

Dr. Ward noted no joint instability in the

The question for the ALJ to consider is not whether the

assistive device was prescribed but rather whether it was medically
required.

Spaulding v. Astrue, 2010 WL 2075043, *4 (N.D. Okla.)

citing Soc. Sec. R. 96-9p.

Claimant has not shown that the use of

a cane is medically required, given Dr. Ward’s objective medical
findings of normality in the left lower extremity.
Claimant also contends the ALJ did not include all of his
mental limitations in the questioning of the vocational expert. On
November 16, 2011, Dr. Janice B. Smith completed a mental RFC
assessment form on Claimant.

She determined Claimant was markedly

restricted in the functional areas of the ability to understand and
remember detailed instructions, the ability to carry out detailed
instructions, and the ability to interact appropriately with the

8

general public.

(Tr. 239-40).

She also found Claimant was

moderately limited in the areas of that ability to maintain
attention and concentration for extended periods, ability to accept
instructions

and

respond

appropriately

to

criticism

from

supervisors, and ability to get along with co-workers or peers
without distracting them or exhibiting behavioral extremes.
In

her

narrative

statement,

Dr.

Smith

states

that

Id.
she

anticipated improvement once treatment for the mental condition has
been adjusted.

She further stated that Claimant

appears to be able to do simple one- and two-step tasks
that do not require strong short-term memory abilities.
He is able to work under routine supervision. He is able
to complete a normal work day and work week from a mental
standpoint, and he can adapt to a work setting. He is
able to work in a setting in which he is required to have
only incidental and intermittent contact with coworkers
and supervisors to accomplish work goals.
He cannot
relate effectively to the general public.
(Tr. 241).
The ALJ accorded “significant weight” to Dr. Smith’s opinion
“because she is deemed an expert and highly knowledgeable in the
area of disability and because her opinion is largely consistent
with the record as a whole.”

(Tr. 23).

Claimant suggests the ALJ

should have included the moderate limitations found by Dr. Smith in
the RFC assessment and the questioning of the vocational expert.
“[A] moderate impairment is not the same as no impairment at
all.”

Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
9

The

ALJ gave significant weight to the opinion but ended up selectively
choosing among the opinions within Dr. Smith’s assessment.

The

fact remains that an ALJ “is not entitled to pick and choose
through an uncontradicted medical opinion, taking only the parts
that are favorable to a finding of nondisability.” Id. On remand,
the ALJ shall consider the totality of the moderate and marked
limitations in both the RFC and the hypothetical questioning of the
vocational expert.
Consideration of Medical Opinion Evidence
Claimant asserts the ALJ failed to properly consider the
opinion of Dr. George Jennings.

On January 26, 2012, Dr. Jennings

completed a mental RFC assessment form on Claimant.

He found

Claimant was severely limited in the areas of the ability to work
in

coordination

with

or

proximity

to

others

without

being

distracted by them; ability to interact appropriately with the
general

public;

assistance;

ability

ability

to

to

ask

simple

accept

questions

instructions

or

and

request
respond

appropriately to criticism from supervisors; ability to get along
with co-workers or peers without distracting them or exhibiting
behavior

extremes;

behavior

and

to

ability

adhere

to

to

maintain

basic

socially

standards

of

appropriate
neatness

and

cleanliness; and the ability to travel in unfamiliar places or use
public transportation.

(Tr. 309-10).

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Dr. Jennings found Claimant

was markedly limited in an additional nine functional areas while
he determined Claimant was moderately limited in four categories.
In short, Claimant was found to have some degree of limitation in
all functional areas.

Id.

The ALJ gave Dr. Jennings’ opinion “little weight” finding it
inconsistent

with

the

treatment

Jennings attended Claimant.
from

“moderate”

records

at

CREOKS

where

Dr.

The records indicate Claimant suffers

problems

in

feelings/mood/affect,

thinking/mental/process, and interpersonal.

(Tr. 23).

These

records are disturbingly limited.
The ALJ’s analysis of this treating physician’s opinion skips
the first required analysis as to whether the opinion is entitled
to controlling weight and immediately assesses a reduced weight to
the

opinion.

The

ALJ

essentially

assesses

this

treating

physician’s opinion as he would have any other medical opinion
evidence.
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.”
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

11

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.

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

12

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).
On remand, the ALJ shall reassess Dr. Jennings’ opinion as a
treating

physician.

Watkins analysis.

He

shall

proceed

through

the

complete

Thereafter, the ALJ shall re-evaluate his RFC

assessment and the hypothetical questions that he poses to the
vocational expert.
Credibility Determination
The ALJ found Claimant was not “fully credible.”

He based

this assessment on inconsistencies in the date he last worked,
where

he

was

hallucinated

located
about

and

seeing

what

he

snakes,

was
his

doing
criminal

when

last

history

he
and

“willingness to break the law”, his alcohol consumption, and the
fact Claimant’s alleged limitations in activities of daily living
“cannot be objectively verified with any reasonable degree of
certainty.

The

ALJ

also

found

inconsistency

in

Claimant’s

testimony regarding the side effects of drugs he was taking.

(Tr.

23-25).
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.”

13

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 other factors concerning the
individual's functional limitations and restrictions due to pain or
other symptoms.

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

An ALJ cannot satisfy his obligation to gauge a claimant’s
credibility by merely making conclusory findings and must give
reasons

for

the

determination

Kepler, 68 F.3d at 391.

based

upon

specific

evidence.

However, it must also be noted that the

ALJ is not required to engage in a “formalistic factor-by-factor
recitation of the evidence.”

Qualls v. Apfel, 206 F.3d 1368, 1372

14

(10th Cir. 2000).

This Court finds that the ALJ’s findings on

credibility are affirmatively linked to the objective record and is
supported by substantial evidence.
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 March, 2016.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

15