Bungart v. Social Security Administration
Filing
19
OPINION AND ORDER by Magistrate Judge Kimberly E. West : The courts finds the ruling of the Commissioner of Social Security Administration should be and is REVERSED and the matter REAMNDED for further proceedings consistent with this Opinion and Order. (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
BRIAN W. BUNGART,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-15-227-KEW
OPINION AND ORDER
Plaintiff Brian W. Bungart (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 initially evaluate a disability claim.
See,
20 C.F.R. §§ 404.1520, 416.920.1
In a case of medical improvement such as this one, the
Commissioner has established an eight step evaluation process for
determining whether a disability continues under Title II and a
seven step evaluation process to determine whether a disability
1
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
continues under Title XVI.
20 C.F.R. § 404.1594(f); 20 C.F.R. §
416.994.
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:
substantial
first, whether the decision was supported by
evidence;
and,
standards were applied.
(10th
Cir.
This Court’s review is limited to
second,
whether
the
correct
legal
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 November 15, 1976 and was 37 years old at
3
the time of the ALJ’s decision. Claimant completed his high school
education and special education classes.
Claimant has worked in
the past as a construction flagger. In a prior decision, Defendant
determined Claimant was disabled as of March 8, 2005.
On July 18,
2012, Defendant determined Claimant was no longer disabled as of
that date. Claimant appealed that decision. Claimant continues to
allege an inability to work due to limitations resulting from lower
back pain and memory and concentration problems.
Procedural History
Previously, Claimant 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 and was awarded benefits.
He was
determined to have made medical improvement and benefits were
terminated. A hearing officer upheld Defendant’s decision to cease
benefits on February 18, 2013 which Claimant appealed.
On January
9, 2014, an administrative hearing was held before Administrative
Law Judge (“ALJ”) Bernard Porter by video with Claimant appearing
in Poteau, Oklahoma and the ALJ presiding in McAlester, Oklahoma.
He issued an unfavorable decision on February 7, 2014. The Appeals
Council denied review of the ALJ’s decision on April 24, 2015.
As
a result, the decision of the ALJ represents the Commissioner’s
final decision for purposes of further appeal.
4
20 C.F.R. §§
404.981, 416.1481.
Decision of the Administrative Law Judge
The ALJ determined Claimant had made medical improvement in
his
severe
impairments
such
that
he
retained
the
residual
functional capacity (“RFC”) to perform light work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) finding
Claimant experienced medical improvement; (2) finding that any
medical improvement which occurred related to Claimant’s ability to
work; (3) reaching an RFC for the period beginning July 18, 2012
which was not supported by substantial evidence; and (4) finding at
step five that Claimant could perform other jobs.
Medical Improvement
In his decision, the ALJ found Claimant suffered from the
medically
determinable
attention
deficit
impairments
hyperactivity
of
disorder
a
learning
(“ADHD”);
disorder;
depressive
disorder; cognitive disorder; personality disorder; history of
neurofibromatosis; migraine headaches; Tarlov cysts of the lumbar
spine; cervical disc disease; and degenerative joint disease of the
left shoulder.
(Tr. 55).
The ALJ determined Claimant had made
medical improvement as of July 18, 2012, finding there had been a
decrease in medical severity of his impairments at the time of the
comparison point decision.
(Tr. 57).
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The ALJ found that Claimant
continued to have a severe impairment or combination of impairments
beginning on July 18, 2012.
(Tr. 60).
He concluded Claimant as of
the specified date, Claimant retained the RFC to perform light
work.
In so doing, the ALJ found Claimant could lift/carry 20
pounds occasionally and 10 pounds frequently; stand/walk for six
hours in an eight hour workday; sit for six hours in an eight hour
workday;
occasionally
use
foot
controls;
occasionally
lift
overhead; occasionally climb ramps and stairs but never climb
ropes,
ladders,
and
scaffolds
or
crawl;
avoid
exposure
to
unprotected heights, moving mechanical parts, and temperature
extremes; and requires a sit/stand option that allows Claimant to
change positions at least every 30 minutes. Due to psychologically
based factors, Claimant could perform simple tasks and make simple
work-related decisions. Claimant could have occasional interaction
with the public, co-workers, and supervisors.
(Tr. 59).
After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of small
products assembler, electrical accessories assembler, and bakery
worker, all of which the ALJ determined existed in sufficient
numbers in both the regional and national economies. (Tr. 72). As
a result, the ALJ determined Claimant’s disability ended on July
18, 2012 and he had not become disabled again since that date.
(Tr. 73).
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Claimant first contends that he did not achieve medical
improvement. The basis of the ALJ’s finding of medical improvement
primarily
Continuing
rests
upon
Disability
Claimant’s
Review
responses
Report
dated
set
forth
January
on
25,
the
2012.
Claimant reported that the condition which limited his ability to
work was chronic back and neck pain.
(Tr. 250).
The ALJ found
Claimant was only taking medication for pain and that he had not
been treated for any mental condition including emotional or
learning problems within the preceding 12 months.
He also found
Claimant’s sole problem to which he testified which kept him from
working was pain.
(Tr. 57).
According to the ALJ, Claimant was originally found to be
disabled based upon a cognitive disorder and personality disorder.
Claimant was found to be unable to maintain consistency to perform
even simple, routine tasks.
(Tr. 55).2
Claimant stated in a
mental diagnostic evaluation by Dr. Patricia J. Walz dated October
18, 2012 that he obtained disability benefits because he had “a
tumor on my lower spine about the size of a golf ball.”
stated that he was a “slow learner.
468).
He also
I can’t do anything.”
Dr. Walz concluded Claimant had dysthymia, mild cognitive
impairment, and personality disorder with cluster B traits.
472).
(Tr.
(Tr.
Dr. Walz found Claimant’s IQ was in the low average range,
2
The prior decision finding Claimant disabled is not a part of the
record in this appeal.
7
his attention and concentration were impaired, he persisted well,
the speed of information processing was very slow but that he did
not qualify for a diagnosis of mental retardation.
(Tr. 473).
Dr. Walz also completed a mental medical source statement
dated November 13, 2012. She found Claimant to be markedly limited
in the functional areas of the ability to maintain attention and
concentration for extended periods; ability to perform activities
within a schedule, maintain regular attendance, and be punctual
within customary tolerances; ability to sustain an ordinary routine
without special supervision; ability to work in coordination with
or proximity to others without being distracted by them; ability to
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods; ability
to interact appropriately with the general public; ability to
accept instructions and respond appropriately to criticism from
supervisors; and ability to maintain socially appropriate behavior
and to adhere to basic standards of neatness and cleanliness. (Tr.
464-65).
In her narrative statement, Dr. Walz wrote that Claimant was
limited in social and coping skills.
She also noted Claimant had
chronic depression and mild cognitive impairment which affects his
ability to tolerate stress.
(Tr. 466).
8
The ALJ gave Dr. Walz’s report “diminished weight” because it
was not consistent with the record as a whole.
finding
of
marked
limitation
in
the
He discounted the
ability
to
maintain
concentration and attention by stating Claimant gave a “very
detailed report” to Dr. Walz and he plays video games.
(Tr. 67).
The ALJ also concluded that Dr. Walz was paid for her statement and
was retained through an attorney referral and for this appeal which
presumably caused the ALJ to discount Dr. Walz’s findings.
68).
(Tr.
This type of reasoning smacks of the old “physician’s report
appears to have been prepared as an accommodation to a patient”
statement that has been roundly rejected as a basis for reducing
the weight afforded a physician’s opinion.
Miller v. Chater, 99
F.3d. 972, 976 (10th Cir. 1996) citing Frey v. Bowen, 816 F.2d 508,
515 (10th Cir. 1987).
Moreover, the ALJ cites with approval and gives “great weight”
to the medical source statement prepared by Dr. Traci Baker on
December 3, 2013 which generally found Claimant to only have
moderate or lesser limitations in mental functioning.
71).
(Tr. 668-
Dr. Baker’s report was also prepared because Claimant was
“[n]eeding disability papers filled out” but, because presumably
her opinion supported a finding of non-disability, the ALJ gave the
opinion “great weight.”
(Tr. 68).
An ALJ “is not entitled to pick
and choose through an uncontradicted medical opinion, taking only
9
the parts that are favorable to a finding of nondisability.”
Haga
v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
This Court is also disturbed by the ALJ’s partial reliance
upon Claimant’s ability to accurately complete the disability
report to include all of his conditions which affect his ability to
work when his cognitive limitations could preclude his ability to
accurately identify his cognitive limitations.
Ultimately, “[t]he
Commissioner bears the burden of showing medical improvement by
establishing that the claimant's medical condition has improved,
the improvement is related to the claimant's ability to work, and
the claimant is currently able to engage in substantial gainful
activity. . . . In deciding whether to terminate benefits, a
claimant's impairments are considered together. See 20 C.F.R. §
404.1594(d).” Knapp v. Barnhart, 68 Fed. App'x 951, 952 (10th Cir.
2003).
The ALJ failed to establish that Claimant’s cognitive
impairment found to exist in 2005 had improved such that he was
able
to
engage
in
substantial
gainful
activity,
except
to
improperly reject Dr. Walz’s opinion and rely upon Claimant to
identify his own cognitive limitations.
On remand, the ALJ shall
rectify these deficiencies.
Claimant also contends the ALJ failed to properly weigh the
opinion of his treating physician, Dr. Ford Barnes.
Dr. Barnes
authored a physical medical source statement on October 29, 2012.
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He found Claimant was limited to occasionally lift/carry less than
10 pounds and frequently lift/carry no weight; stand less than two
hours in an eight hour workday; require periodic alternate sitting
and standing; limit upper and lower extremities; never crouch or
crawl; limit reaching in all directions, fingering and feeling; and
limit exposure to temperature extremes, hazards, and humidity and
wetness.
(Tr. 460-61).
The
ALJ
gave
Dr.
Barnes’
opinion
“diminished
weight.”
Primarily, he did so believing Dr. Barnes expressed an opinion “in
an effort to assist a patient with whom he or she sympathizes for
one reason or another.”
insufficient
physician.
basis
(Tr. 67).
for
Again, this statement forms an
rejecting
Miller, supra.
the
opinion
of
a
treating
On remand, the ALJ shall evaluate Dr.
Barnes’ opinions under the rubric of Watkins v. Barnhart, 350 F.3d
1297,
1300
(10th
Cir.
2003)
speculating
about
physicians’
and
refrain
motivations
from
in
subjectively
reaching
their
opinions.
The ALJ’s evaluation of Claimant’s credibility is also lacking
since he found Claimant’s assertions of pain was not supported by
the evidence.
certainly
Dr. Barnes’ treatment records and source statement
lend
support
attributable to pain.
to
his
statements
of
limitations
On remand, the ALJ shall re-evaluate
Claimant’s credibility.
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Step Five Analysis
Since
the
ALJ
improperly
determined
Claimant’s
RFC
by
rejecting medical evidence without foundation, he shall reassess
his findings at step five, including the hypothetical questioning
of the vocational expert.
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 15th day of September, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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