Foster v. Social Security Administration

Filing 20

OPINION AND ORDER by Magistrate Judge Steven P. Shreder REVERSING and REMANDING the decision of the ALJ. (tmb, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
LORESA S. FOSTER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration, 1
Defendant.

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) Case No. CIV-15-379-SPS
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OPINION AND ORDER
The claimant Loresa Foster requests judicial review of a denial of benefits by the
Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). She
appeals the Commissioner’s decision and asserts the Administrative Law Judge (“ALJ”)
erred in determining she was not disabled.

For the reasons set forth below, the

Commissioner’s decision is herby 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 h[er] physical or mental impairment or impairments are of
1

On January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security. In
accordance with Fed. R. Civ. P. 25(d), Ms. Berryhill is substituted for Carolyn W. Colvin as the
Defendant in this action.

such severity that [s]he is not only unable to do h[er] previous work but cannot,
considering h[er] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy[.]” Id. § 423 (d)(2)(A).
Social security regulations implement a five-step sequential process to evaluate a
disability claim. See 20 C.F.R. §§ 404.1520, 416.920. 2
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “‘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); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
substantiality of evidence must take into account whatever in the record fairly detracts
2

Step One requires the claimant to establish that she is not engaged in substantial gainful activity. Step
Two requires the claimant to establish that she has a medically severe impairment (or combination of
impairments) that significantly limits her ability to do basic work activities. If the claimant is engaged in
substantial gainful activity, or her impairment is not medically severe, disability benefits are denied. If
she does have a medically severe impairment, it is measured at step three against the listed impairments in
20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant has a listed (or “medically equivalent”) impairment,
she is regarded as disabled and awarded benefits without further inquiry. Otherwise, the evaluation
proceeds to step four, where the claimant must show that she lacks the residual functional capacity
(“RFC”) to return to her past relevant work. At step five, the burden shifts to the Commissioner to show
there is significant work in the national economy that the claimant can perform, given her age, education,
work experience, and RFC. Disability benefits are denied if the claimant can return to any of her past
relevant work or if her RFC does not preclude alternative work. See generally Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

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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
The claimant was born April 13, 1958, and was fifty-four years old at the time of
the administrative hearing (Tr. 80). She has a high school education and certified nursing
and medication assistant training, and has worked as a certified nursing aide, and a
certified medication aide (Tr. 93-94, 209). The claimant alleges that she has been unable
to work since November 10, 2010, due to systemic lupus, scleroderma, Raynaud’s
syndrome, Sjogren’s syndrome, and depression (Tr. 153, 208).
Procedural History
On March 7, 2011, the claimant filed an application for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Her application
was denied.

ALJ Richard J. Kallsnick conducted an administrative hearing and

determined that the claimant was not disabled in a written opinion dated October 12,
2012 (Tr. 56-63). The Appeals Council denied review, so the ALJ’s written opinion is
the Commissioner’s final decision for purposes of this appeal. See 20 C.F.R. §§ 404.981.
Decision of the Administrative Law Judge
The ALJ made his decision at steps four and five of the sequential evaluation. He
found that the claimant retained the residual functional capacity (“RFC”) perform the full
range of light work as defined in 20 C.F.R. § 404.1567(b) (Tr. 59). The ALJ concluded
that the claimant was not disabled because she could return to her past relevant work as a
certified medication aide and certified nurse’s aide, and because there was other work
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that she could perform in the national economy, e. g., arcade attendant, video clerk, and
clerical mailer (Tr. 61-62).
Review
The claimant contends that the ALJ erred by failing to: (i) consider all the
evidence in finding the claimant had no episodes of decompensation; (ii) consider and
account for all of her mental impairments; (iii) properly determine the mental demands of
her past relevant work; (iv) apply the Medical-Vocational Guidelines (the “Grids”) to
find her disabled; and (v) perform a proper credibility determination. The Court finds the
claimant’s last contention persuasive, and the decision of the Commissioner must
therefore be reversed and the case remanded to the ALJ for further proceedings.
The ALJ determined that the claimant had the severe impairments of limited
scleroderma, Sjogren’s syndrome, and Raynaud’s syndrome, but that her alleged
depression and anxiety were non-severe (Tr. 58-59).

The medical record as to the

claimant’s mental impairments reveals that the claimant was admitted to St. John
Hospital due to depression on June 30, 2004, and that she was receiving ongoing
counseling for major depressive disorder as of July 12, 2004, but there are no specific
treatment notes in the record related to this hospitalization (Tr. 250, 255, 260, 266, 271,
277, 283, 289).

Providers at Sanford Family Medicine managed the claimant’s

depression and anxiety from April 2008 through March 2010 (Tr. 248-92).
Dr. William T. Bryant performed a psychological consultative examination on
June 6, 2011 (Tr. 346-48). The claimant described her physical impairments, and stated
that her depression was caused by her illness (Tr. 347). Dr. Bryant found that the
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claimant’s depressive symptoms were mild, and that her mental status was excellent
except for abstracting and judgment (including use of inappropriate language), which he
thought suggested that the stress from her illness was affecting some of her higher
cognitive functions (Tr. 348).
State reviewing psychologist Michelle Butler, Psy.D., completed a Psychiatric
Review Technique Form (“PRT”) on June 9, 2011 (Tr. 349-62). Dr. Butler opined that
the claimant was mildly limited in her ability to maintain concentration, persistence, or
pace, but that she was not at all limited in her activities of daily living and ability to
maintain social functioning, and had no episodes of decompensation (Tr. 359). Dr.
Butler noted the claimant’s June 2004 inpatient hospitalization, as well as Dr. Bryant’s
consultative exam, and indicated that the claimant wasn’t currently receiving mental
health treatment or taking any medications for her mental health (Tr. 361).
Barbara Osborne, a licensed professional counselor, assessed the claimant’s
mental status on August 11, 2011 (Tr. 426-35). The claimant reported suicidal thoughts
that began two to three months earlier; severe sadness eight hours per day, seven days per
week; and that she was only awake eight hours per day (Tr. 430).

Ms. Osborne

diagnosed the claimant with depressive disorder not otherwise specified, assigned a
Global Assessment of Functioning (“GAF”) score of forty-nine, and rated the claimant’s
severity level at moderate (Tr. 433). Ms. Osborne indicated the claimant’s prognosis was
fair based on adherence to treatment, and that she could benefit from medication
management, group psychotherapy, psychiatric-social rehabilitation group, and case
management (Tr. 435).
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On August 17, 2011, the claimant presented to psychiatrist Dr. Vanessa Werlla,
and reported a depressed mood and excessive sleep (Tr. 448). Dr. Werlla diagnosed the
claimant with major depressive disorder secondary to chronic pain, lupus, and
scleroderma, and prescribed an anti-depressant (Tr. 448).

The claimant reported

decreased depression at a follow-up appointment on September 12, 2011, and Dr. Werlla
noted the claimant's symptoms were fairly improved (Tr. 449).

She diagnosed the

claimant with pain disorder related to psychological factors, and major depressive
disorder (Tr. 449). At a follow-up appointment on October 11, 2011, the claimant
reported decreased depression, but significant pain in her feet (Tr. 447). Dr. Werlla
provided the claimant with the contact information for clinics that could help with her
physical impairments (Tr. 447).

The claimant did not show for her follow-up

appointment on November 1, 2011, and there are no further treatment records from Dr.
Werlla in the record (Tr. 446).
Evidence submitted to the Appeals Council reveals that the claimant presented to
Dr. Cornelia Mertz on May 31, 2013, and reported a depressed mood, diminished
interest/pleasure, somewhat difficult functioning, and fatigue (Tr. 25). She also reported
that her depression was aggravated by conflict, stress, and social interactions (Tr. 25).
Dr. Mertz prescribed an anti-depressant, and indicated she needed “to discuss in further
detail at next visit.” (Tr. 25-27). At a follow-up appointment on July 16, 2013, Dr.
Christopher Thurman noted the claimant wanted to refrain from medication for
depression at that time, but would re-evaluate at her next appointment (Tr. 21-24). There
are no further treatment notes from Oklahoma State Physicians in the record.
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In his written decision, the ALJ summarized some of the medical evidence, the
claimant’s hearing testimony and function report, and a Third Party Function Report
submitted by her husband (Tr. 58-59).

At step two, he discussed the claimant’s

impairments, explaining those he deemed severe and those he deemed non-severe
(Tr. 44).

The ALJ referred to Dr. Butler’s opinion in determining the claimant’s

depression and anxiety were non-severe, and found she was mildly restricted in her
activities of daily living, social functioning, and ability to maintain concentration,
persistence, or pace (Tr. 58-59). At step four, he found the claimant not credible due to:
(i) her normal physical consultative exam, (ii) lack of medical treatment from August
2010 through October 2011, (iii) her failure to follow-up with a rheumatologist beyond
December 2009, (iv) absence of lupus diagnosis in the record, (v) absence of regular
treatment for irritable bowel syndrome after diagnosis, (vi) an inconsistency between her
testimony related to her hands and the medical record, and (vii) her activities of daily
living (Tr. 59-60). He then found the claimant not disabled at step five (Tr. 61-63).
The claimant contends, inter alia, that the ALJ erred in analyzing her credibility.
At the time of the ALJ’s decision, a credibility determination was governed by Soc. Sec.
Rul. 96-7p. See, e .g., Hardman v. Barnhart, 362 F.3d 676, 678 (10th Cir. 2004), quoting
Soc. Sec. Rul. 96-7p, 1996 WL 374186 (July 2, 1996). But the Commissioner issued a
ruling on March 16, 2016, which eliminated the term “credibility” and provided new
guidance for evaluating the intensity, persistence, and limiting effects of a claimant’s
symptoms. Soc. Sec. Rul. 16-3p, 2016 WL 1119029 (Mar. 16, 2016). “Generally, if an
agency makes a policy change during the pendency of a claimant’s appeal, the reviewing
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court should remand for the agency to determine whether the new policy affects its prior
decision.” Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007), quoting Sloan v.
Astrue, 499 F.3d 883, 889 (8th Cir. 2007). Although the ALJ’s credibility analysis was
arguably sufficient under the old standard, the record does not reflect how the ALJ would
have evaluated the claimant’s subjective statements under Soc. Sec. Rul. 16-3p. 3
Consequently, the decision of the Commissioner must be reversed and the case remanded
to the ALJ for evaluation in accordance with the new standard.
Conclusion
In summary, the Court finds that correct legal standards were not applied by the
ALJ, and the decision of the Commissioner is therefore not supported by substantial
evidence. The decision of the Commissioner of the Social Security Administration is
accordingly hereby REVERSED and the case REMANDED for further proceedings
consistent herewith.
DATED this 27th day of March, 2017.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

3

While it is arguable that the evidence cited by the ALJ in support of his credibility determination would
likewise have satisfied Soc. Sec. Rul. 16-3p, thus obviating the need for reversal and remand, see, e. g.,
Wellenstein v. Colvin, 2015 WL 5734438, at *11 (N.D. Iowa Sept. 30, 2015) (noting that the Court of
Appeals for the Eighth Circuit denied remand for consideration of a new social security ruling upon
finding that “although the policy changed during the pendency of the case, the policy did not affect the
case.”), citing Van Vickle v. Astrue, 539 F.3d 825, 829 n.6 (8th Cir. 2008), the undersigned Magistrate
Judge finds that any re-evaluation of the evidence in light of the new standard is not for this court to make
on review but rather for the ALJ to consider in the first instance.

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