Arnold v. Social Security Administration
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,
CAROLYN W. COLVIN, Acting
Commissioner of Social
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.
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
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
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. . .”
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).
This Court’s review is limited to
first, whether the decision was supported by
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).
standards were applied.
Hawkins v. Chater, 113 F.3d 1162, 1164
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
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
The court may not re-weigh the evidence nor substitute
its discretion for that of the agency.
Casias v. Secretary of
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.”
Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also, Casias, 933 F.2d
Claimant was born on September 25, 1987 and was 26 years old
at the time of the ALJ’s decision.
Claimant completed her high
phlebotomist, retail store manager, and waitress. Claimant alleges
an inability to work beginning February 24, 2010 due to limitations
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.
result, the decision of the ALJ represents the Commissioner’s final
decision for purposes of further appeal.
20 C.F.R. §§ 404.981,
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
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
(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;
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
accommodated by normal work breaks.
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.
As a result, the ALJ determined Claimant was not under
a disability from February 24, 2010 through the date of the
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
limitations found in the paragraph B criteria must be included in
the hypothetical questioning of the vocational expert.
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
Soc. Sec. R. 96–8p.
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
(Tr. 262, 326).
objective medical record of treatment for the condition.
In particular, in January of 2010, Claimant was implanted with a
incontinence which caused her to lose urine when she laughed or
coughed and she had difficulty making it to the bathroom without
Claimant’s condition appeared to improve thereafter with the
assistance of medication.
In June of 2011, Claimant had improved
from her baseline with very little leakage and only with a full
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.
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
She had a stabbing pain when her bladder got too full.
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.
experience pelvic pain when filling the bladder to 300 cc.
obvious void dysfunction was noted on intra-abdominal pressure flow.
In June of 2012, Claimant complained of urge incontinence but
denied frequent stress incontinence.
Standing stress testing was
In July of 2012, Claimant received botox
injections in the bladder.
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.
The ALJ noted Claimant’s limited
While he noted Claimant did not
indicates she still maintained struggling with the condition in
September of 2013.
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.
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
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
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).
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.
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,
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
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.”
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.
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
is unable to determine whether her observed behaviors are medically
compelled” and her opinion was not supported by the medical record.
“sincere” and, therefore, presumably credible. Id. The ALJ should
specifically indicate the inconsistencies between the medical
incontinence, and the mother’s statements on her observations of
The ALJ found Claimant was not “completely credible.”
He based this conclusion upon a finding that the medical
record demonstrated improvement in her incontinence.
ALJ continued to fail to distinguish between the various forms of
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.
substantial evidence and the correct legal standards were not
Commissioner of Social Security Administration should be and is
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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