Workman v. Social Security Administration

Filing 19

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
ELLIOTT D. WORKMAN,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-15-196-KEW

OPINION AND ORDER

Plaintiff

Elliott

D.

Workman

(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.

For the

reasons discussed below, it is the finding of this 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 June 6, 1970 and was 43 years old at the
time of the ALJ’s decision.

Claimant completed his high school

education and some vocational training. Claimant has worked in the
past as a drill press operator.

Claimant alleges an inability to

work beginning September 2, 2008 due to limitations resulting from
sleep apnea, gout, obesity, and a shoulder injury.

3

Procedural History
On August 1, 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.
October

2,

2013,

an

administrative

hearing

was

held

On

before

Administrative Law Judge (“ALJ”) Edmund C. Werre by video with
Claimant appearing in Muskogee, Oklahoma and the ALJ presiding in
Tulsa, Oklahoma.
2014.

He issued an unfavorable decision on January 21,

The Appeals Council denied review of the ALJ’s decision on

March 23, 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, he did not meet a listing and retained the residual
functional capacity (“RFC”) to perform sedentary work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) reaching an
improper RFC determination; and (2) finding Claimant could perform
other jobs at step five.

4

RFC Determination
In his decision, the ALJ found Claimant suffered from the
severe impairments of degenerative joint disease of the left
shoulder status post humerus fracture, gout, obesity, and sleep
apnea.

(Tr. 12).

The ALJ determined Claimant retained the RFC to

perform sedentary work. (Tr. 13). In so doing, the ALJ determined
Claimant could lift up to 20 pounds occasionally and lift or carry
up to 10 pounds frequently, standing/walking six hours in an eight
hour workday, sitting six hours out of an eight hour workday, no
overhead reaching with the left non-dominant upper extremity or
work

requiring

more

than

40

degrees

flexion

abduction with the left upper extremity.

and

50

degrees

(Tr. 13).

After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of printed
circuit board screener, addresser, and silverware assembler, all of
which the ALJ determined existed in sufficient numbers in both the
regional and national economies.

(Tr. 19).

As a result, the ALJ

determined Claimant was not under a disability from September 2,
2008 through the date of the decision.

Id.

Claimant first contends the ALJ did not properly weigh and
assess the opinion of his treating physician, Dr. Donald C. Ewing.
Dr. Ewing authored a medical source statement dated October 28,
2013.

He

limited

Claimant

to

5

lifting/carrying

20

pounds

occasionally and less than 10 pounds frequently; stand/walk for at
least two hours in an eight hour workday; sit for less than about
six hours in an eight hour workday; and limited pushing and pulling
in the upper extremities. The medical/clinical findings to support
these conclusions is not completely legible but includes Claimant’s
surgery on his shoulder and the fact he still experiences pain with
activity involving the shoulder.

(Tr. 533-34).

Dr. Ewing also found Claimant should never climb, kneel, or
crawl and only occasionally crouch. The basis for this finding was
Claimant’s morbid obesity.

(Tr. 534).

Dr. Ewing continued on the form to find Claimant’s reaching in
all directions and handling were limited.

Fingering was not

limited as long as Claimant was sitting and feeling was unlimited.
The clinical basis was Claimant’s inability to lift his arm.
535).

(Tr.

Claimant was also found by Dr. Ewing to be limited in

exposure to noise, dust, and hazards such as machinery and heights.
Id.
The ALJ acknowledged the opinion in his decision and gave it
“little weight.”

The stated basis for doing so included the ALJ’s

inability to discern the identity of the author of the source
statement and that some of the limitations contained in the
statement are more restrictive than the medical evidence supported.
(Tr. 17).

6

Defendant appears to admit that the source statement was
written by Dr. Ewing.

The signature supports such a conclusion.

Because of this confusion by the ALJ, he expressly did not know
that he was evaluating the opinion of a treating physician under
the controlling weight standard.
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
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

7

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
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 give due consideration to Dr. Ewing’s
opinion

as

a

treating

physician.

Additionally,

considerable

support is present in the medical record for limitations in the use
of his upper extremity. (Tr. 238, 247, 305, 328-29, 370, 380, 503,
566, 587).

The ALJ shall consider this medical evidence in

evaluating the weight to be afforded Dr. Ewing’s source statement.
Claimant

also

asserts

the

8

ALJ

should

have

found

some

functional limitation from his sleep apnea, gout, arthritis, and
obesity.

The ALJ cited to various medical records which indicated

that these conditions did not pose a significant limitation upon
his ability to function or were treated effectively.

(Tr. 15-17).

He also made the required findings to demonstrate he considered
Claimant’s obesity and the combined effects it had upon other
conditions.

(Tr. 13).

Claimant also challenges the credibility findings made by the
ALJ.

The ALJ found Claimant’s statements were not “entirely

credible.”

(Tr. 14).

Other than reciting the medical findings

during Claimant’s visits to medical professionals and the findings
of the consultative examiners as well as Claimant’s testimony on
his activities of daily living, the ALJ did not link the facts of
record with any conflicts with the medical record.
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

9

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.”
(10th Cir. 2000).

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

On remand, the ALJ shall specifically consider

Claimant’s statements and affirmatively link his findings to the
record.
Step Five Evaluation
Claimant contends the ALJ failed to include all of his
limitations in his RFC findings and, in turn, failed to include the

10

restrictions
expert.

in

his

hypothetical

Since

the

ALJ

must

questions

re-evaluate

to

the

Dr.

vocational

Ewing’s

source

statement and Claimant’s credibility, he shall also reconsider his
RFC and questions posed to the vocational expert and insure that
they contain the totality of Claimant’s functional limitations.
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 8th day of September, 2016.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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