Arnold 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
FELICIA B. ARNOLD,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-15-120-KEW

OPINION AND ORDER

Plaintiff Felicia B. Arnold (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
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).

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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 September 25, 1987 and was 26 years old
at the time of the ALJ’s decision.

Claimant completed her high

school

worked

education.

Claimant

has

in

the

past

as

a

phlebotomist, retail store manager, and waitress. Claimant alleges
an inability to work beginning February 24, 2010 due to limitations
resulting

from

urinary

incontinence,

depression.

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anxiety,

asthma,

and

Procedural History
On July 11, 2011, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) and for

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 October 22,

2013, an administrative hearing was held before Administrative Law
Judge (“ALJ”) Bernard Porter in McAlester, Oklahoma.
unfavorable decision on November 20, 2013.

He issued an

The Appeals Council

denied review of the ALJ’s decision on January 27, 2015.

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
perform proper evaluations at steps 4, and 5; (2) failing to
properly evaluate the medical and non-medical source evidence; and

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(3) failing to perform a proper credibility determination.
Steps Four and Five Evaluations
In his decision, the ALJ found Claimant suffered from the
severe impairments of obesity; urinary incontinence; hypertension;
diabetes mellitus; polyneuropathy of the hands and feet; asthma;
GERD;

migraines;

anxiety.

(Tr. 21).

major

depressive

disorder;

and

generalized

The ALJ determined Claimant retained the RFC

to perform a full range of sedentary work.

In so doing, the ALJ

found Claimant could lift/carry 10 pounds occasionally and less the
10 pounds frequently; stand/walk about two hours total during an
eight hour workday; sit for about six hours in an eight hour
workday; occasionally use hand and foot controls; occasionally
climb ramps and stairs but never climb ladders or scaffolds; never
crawl; frequently handle, finger, and feel bilaterally; could not
work around unprotected heights or moving mechanical parts; no
concentrated exposure to dust, fumes, or gases; no concentrated
exposure to humidity or wetness; avoid any environments where there
were temperature extremes; required a sit or stand option which
allows for a change in position at least every 30 minutes; limited
to simple tasks and simple work-related decisions; limited to
occasional
interaction

interaction
with

the

with

supervisors

public;

and

accommodated by normal work breaks.

5

time

and

co-workers;

no

off

task

be

(Tr. 24).

would

After consulting

with a vocational expert, the ALJ concluded that Claimant could
perform the representative jobs of suture winder, table worker, and
touch up screener, all of which the ALJ determined existed in
sufficient numbers in both the regional and national economies.
(Tr. 33).

As a result, the ALJ determined Claimant was not under

a disability from February 24, 2010 through the date of the
decision.

Id.

Claimant first contends that the ALJ failed to include her
requirement for structure and supervision, isolation, inability to
adjust to stress, problems accommodating her incontinence, and
problems with concentration, persistence, or pace in the RFC or
hypothetical questioning of the vocational expert.

As an initial

matter, the ALJ determined Claimant was moderately limited in the
area of concentration, persistence, or pace as a part of the
paragraph
Claimant

B

determination

appears

to

argue

on

mental

a

impairments.

perceived

requirement

(Tr.
that

23).
the

limitations found in the paragraph B criteria must be included in
the hypothetical questioning of the vocational expert.

This Court

rejects this notion as it is unsupported by the regulations and the
case authority in this Circuit.

The social security ruling on

assessing a claimant's RFC cautions that “[t]he adjudicator must
remember that the limitations identified in the ‘paragraph B’ ...
criteria are not an RFC assessment but are used to rate the severity

6

of

mental

impairment(s)

evaluation process.”

at

steps

2

and

Soc. Sec. R. 96–8p.

3

of

the

sequential

The Tenth Circuit has

specifically found that the failure to include a moderate limitation
in social functioning, for example, in the RFC based solely upon the
finding at step three is not error.
Appx. 748, 754 (10th Cir. 2013).

Beasley v. Colvin, 520 Fed.

No error is attributed to the

omission of the paragraph B limitations from the RFC.
Claimant also contends the ALJ did not include limitations
stemming from her urinary incontinence in the RFC or questioning of
the vocational expert.

Claimant reported to the consultative

psychological examiner that she has bladder problems which required
the placement of mesh into her bladder.

She stated that any urine

causes pain and pressure, that she must use the bathroom every 10-15
minutes, and she frequently has to change pads and clothes due to
incontinence leaking.
The

ALJ

(Tr. 262, 326).

discounted

Claimant’s

testimony

based

objective medical record of treatment for the condition.

upon

the

(Tr. 31).

In particular, in January of 2010, Claimant was implanted with a
urethral

sling

to

attempt

to

improve

her

stress

and

urge

incontinence which caused her to lose urine when she laughed or
coughed and she had difficulty making it to the bathroom without
leaking.

(Tr. 26).

Claimant’s condition appeared to improve thereafter with the

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assistance of medication.

In June of 2011, Claimant had improved

from her baseline with very little leakage and only with a full
bladder.

(Tr. 292).

The medical record contains no complaints of

incontinence from July of 2010 through April of 2011, despite
obtaining medical care for other conditions during this period from
the Chickasaw Nation Medical Center.

(Tr. 256-61).

However, in

April of 2011, Claimant went for a follow up on her bladder
condition, complaining that the sling worked for four to five months
but her incontinence returned worse than before.

(Tr. 286, 290).

In October of 2011, Claimant complained of lower abdominal pain
accompanied by urinary urgency, frequency, and pain in the bladder
area.

She had a stabbing pain when her bladder got too full.

Claimant

was

condition.

prescribed

(Tr. 334-35).

anti-inflammatory

medication

for

the

Claimant did not complain of the same

condition a month later. (Tr. 338).
In May of 2012, Claimant underwent urodynamic studies which
revealed no stress urinary incontinence with urodynamic studies or
with standing stress test with vigorous coughing.

Claimant did

experience pelvic pain when filling the bladder to 300 cc.

No

obvious void dysfunction was noted on intra-abdominal pressure flow.
(Tr. 433).
In June of 2012, Claimant complained of urge incontinence but
denied frequent stress incontinence.

8

Standing stress testing was

negative.

(Tr. 423).

In July of 2012, Claimant received botox

injections in the bladder.

(Tr. 413-14).

In December of 2012,

Claimant maintained her complaints of urge incontinence which
requires that she void her bladder every 20-30 minutes and six to
seven times a night.
financial means.
complain

of

(Tr. 406).

(Tr. 27).

urinary

The ALJ noted Claimant’s limited
While he noted Claimant did not

incontinence

in

May

of

2013,

the

record

indicates she still maintained struggling with the condition in
September of 2013.

(Tr. 454).

Claimant has consistently battled urge incontinence throughout
the medical record and no medical authority has expressed doubt of
malingering or that she continues to have problems.

“[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.
discuss

the

individual's

ability

to

The ALJ must also

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

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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 Cir. 2012).

Certainly

a requirement to void the bladder every 20 to 30 minutes materially
affects Claimant’s ability to engage in basic work activities
without some accommodation in the RFC.

On remand, the ALJ shall

explain his conclusion that this condition had little effect upon
Claimant’s ability to engage in basic work activity and indicate in
the record where a medical authority doubted the frequency of
Claimant’s urinary urge incontinence.
The mental issues surrounding a requirement for structure and
support stem from her bladder issues.
bladder

issues

persist,

the

ALJ

(Tr. 328).

should

accommodate

Should the
any

such

requirement for structure in his RFC.
Evaluation of Medical and Non-Medical Source Evidence
Claimant challenges the ALJ’s assessment of the mental status
examination performed by Dr. Shalom Palacio-Hollmon on October 1,
2011.

Dr. Palacio-Hollmon concluded Claimant has an overall fair

adjustment to stress, should seek psychiatric therapy for coping,
has a poor prognosis for her mental health issues, should undergo

10

additional testing and evaluation by a psychiatrist for medication,
has a limited ability to deal with the public due to anxiety,
depression and ideas of reference, has the ability to understand,
remember, and carry out simple and complex instructions but requires
structure, supervision, and increased support, and “is unlikely to
meet demands of a work environment.”

(Tr. 328).

The ALJ gave “limited weight” to Dr. Palacio-Hollmon’s report,
finding it to be “overly speculative and inconsistent with the
degree of reported limitation and the stability of mood symptoms on
psychotropic medications.” (Tr. 30). The ALJ did not explain which
portions of Dr. Palacio-Hollmon’s report was “overly speculative”
but did adopt those portions which supported a finding of nondisability. Id. Little analysis of the opinion was provided by the
ALJ and certainly no explanation of his conclusion.

On remand, the

ALJ shall re-evaluate Dr. Palacio-Hollmon’s opinion under the

factors in Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.
2003) and explain with detail his assessment of the opinion.

In

doing so, the ALJ should avoid the urge to “pick and choose through
an uncontradicted medical opinion, taking only the parts that are
favorable to a finding of nondisability.” Haga v. Astrue, 482 F.3d
1205, 1208 (10th Cir. 2007).
The ALJ also gave “little weight” to the third party function
statement provided by Claimant’s mother, concluding “a lay witness

11

is unable to determine whether her observed behaviors are medically
compelled” and her opinion was not supported by the medical record.
(Tr.

30).

The

ALJ

apparently

believed

the

testimony

to

be

“sincere” and, therefore, presumably credible. Id. The ALJ should
specifically indicate the inconsistencies between the medical
record,

which

appears

to

support

Claimant’s

continued

urge

incontinence, and the mother’s statements on her observations of
Claimant’s condition.
Credibility Determination
The ALJ found Claimant was not “completely credible.”
31).

(Tr.

He based this conclusion upon a finding that the medical

record demonstrated improvement in her incontinence.

However, the

ALJ continued to fail to distinguish between the various forms of
incontinence

from

which

Claimant

suffers.

While

stress

and

standing incontinence has certainly improved, the evidence supports
continued problems with urge incontinence.

On remand, the ALJ

should evaluate Claimant’s testimony in light of the consistent
medical evidence of urge incontinence.
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

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REVERSED and the case is REMANDED for further proceedings.
IT IS SO ORDERED this 8th day of September, 2016.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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