Smith v. Social Security Administration
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
LEE E. RUSHING SMITH,
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration, 1
Case No. CIV-15-396-SPS
OPINION AND ORDER
The claimant Lee E. Rushing Smith requests judicial review of a denial of benefits
by the Commissioner of the Social Security Administration pursuant to 42 U.S.C.
§ 405(g). He appeals the Commissioner’s decision and asserts the Administrative Law
Judge (“ALJ”) erred in determining he was not disabled. For the reasons set forth below,
the Commissioner’s decision is hereby REVERSED and the case REMANDED to the
ALJ 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
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.
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[.]” 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,
Step one requires the claimant to establish that he is not engaged in substantial gainful
activity. Step two requires the claimant to establish that he has a medically severe impairment (or
combination of impairments) that significantly limits his ability to do basic work activities. If the
claimant is engaged in substantial gainful activity, or his impairment is not medically severe,
disability benefits are denied. If he 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, he is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that he lacks the residual functional capacity (RFC) to return to his 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 his age, education, work
experience and RFC. Disability benefits are denied if the claimant can return to any of his past
relevant work or if his RFC does not preclude alternative work. See generally Williams v. Bowen,
844 F.2d 748, 750-51 (10th Cir. 1988).
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
from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also
Casias, 933 F.2d at 800-01.
The claimant was born on October 26, 1964, and was forty-nine years old at the
time of the administrative hearing (Tr. 44).
He has a high school education and
vocational training in welding, and has worked as a forklift driver and infantryman
(Tr. 44-45, 70-71). The claimant alleges that he has been unable to work since August
11, 2009, due to posttraumatic stress disorder and peripheral neuropathy (Tr. 49, 267).
The claimant applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, on March 30, 2012 (Tr. 233-34). The claimant’s
application was denied. ALJ Edward L. Thompson conducted an administrative hearing
and found that the claimant was not disabled in a written decision dated March 17, 2014
(Tr. 19-34). The Appeals Council denied review, so the ALJ’s decision represents 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 had the residual functional capacity (“RFC”) to perform a limited
range of medium work, i. e., he could occasionally lift and/or carry (including upward
pulling) fifty pounds; frequently lift and/or carry (including upward pulling) twenty-five
pounds; sit/stand/walk (with normal breaks) for a total of six hours each in an eight-hour
workday; and occasionally reach overhead bilaterally, crawl, and climb ladders, ropes or
scaffolds (Tr. 27-28).
Additionally, the ALJ found the claimant could understand,
remember, and carry out simple and some complex work tasks for a sustained period of
time, at an appropriate pace, with only limited contact with the general public (Tr. 28).
The ALJ concluded that the claimant was not disabled because he could return to his past
relevant work as a forklift driver, and alternatively because there were other jobs in the
national economy that he could perform, i. e., hand packager, salvage laborer,
housekeeping cleaner, extrusion press operator, and label coder (Tr. 32-34).
The claimant contends that the ALJ erred by failing to: (i) properly evaluate the
opinion of consultative examiner Dr. Shalom Palacio-Holman, and (ii) account for his
peripheral neuropathy in determining his RFC.
The Court finds both contentions
persuasive, and the decision of the Commissioner must therefore be reversed.
The ALJ found that the claimant had the severe impairments of peripheral
neuropathy, lower extremities, mild to moderate, mixed sensory motor axonal
degenerating in type, distal more than proximal; degenerative joint disease, bilateral
shoulders; affective disorder; anxiety-related disorder; alcohol abuse; and a substance
abuse disorder (Tr. 21). The record reveals the claimant was largely treated at the Jack C.
Montgomery Veterans Affairs Medical Center (“VAMC”) by nurse practitioner Vickie
Holland for his physical impairments and by Drs. Trost, Ford, and Locke for his mental
impairments (Tr. 336-644, 658-756).
On February 17, 2010, the claimant presented to Dr. Dennis Trost and reported
nervousness, irritability, poor sleep, social isolation, panic attacks, and excessive alcohol
consumption, all of which he stated began after he was discharged from active duty in
August 2009 (Tr. 601-04). The claimant indicated his alcohol use was problematic and
that he last drank eight days earlier (Tr. 602). Dr. Trost noted the claimant was pleasant,
cooperative, alert, oriented, and coherent; made good eye contact; and had normal speech
and thoughts, fair judgment, and a mildly constricted affect (Tr. 604). He diagnosed the
claimant with panic disorder without agoraphobia, alcohol dependence, and insomnia
probably related to alcohol withdrawal and/or obstructive sleep apnea, and began titrating
antidepressant and antianxiety medications (Tr. 604). Dr. Trost also referred the claimant
to an intensive outpatient substance use disorder program, which he participated in for the
following eight weeks (Tr. 519-98). A discharge summary dated April 13, 2010, reflects
that the claimant made good progress during the program, demonstrated insight into his
behaviors and their consequences, and would benefit from aftercare and working
At a follow-up appointment on April 14, 2010, the claimant’s mood,
irritability, sleep, and social isolation were improved (Tr. 517). Dr. Trost noted the
claimant had no side effects from his medications, and was compliant with treatment
The claimant later reported in March 2011 that he stopped taking his
medications after two months of therapy, but he subsequently resumed mental health
treatment in August 2012 (Tr. 488-96, 703-05). On September 6, 2012, Dr. William Ford
noted the claimant’s mood and anxiety were improved, but that he had decreased
intellectual functioning, concentration, motivation, and insight as compared to his exam a
month earlier (Tr. 699). The claimant reported he was doing well with limiting his
drinking, but his wife reported he was still drinking heavily (Tr. 698). Dr. Ford further
noted the claimant was not open to doing anything about his drinking, concluded that he
was “very much in denial” about his extremely serious drinking problem, and opined that
it complicated his physical functioning (Tr. 699).
On July 7, 2011, Dr. Thomas Hoffman performed a mental status examination in
connection with the claimant’s compensation and pension examination (Tr. 477-86). Dr.
Hoffman noted the claimant had tense psychomotor activity; spontaneous, but
impoverished speech; an attentive, but suspicious and guarded attitude; a constricted
affect; and an anxious mood (Tr. 480-81). He diagnosed the claimant with posttraumatic
stress disorder (“PTSD”) and alcohol abuse, and opined that the claimant’s alcohol abuse
had a negative impact on his social and occupational functioning (Tr. 485). Dr. Hoffman
further opined that the claimant’s PTSD reduced his reliability and productivity, but did
not preclude gainful employment (Tr. 485-86).
Dr. Shalom Palacio-Holman performed a consultative mental status examination
on June 8, 2012 (Tr. 646-49). She noted the claimant was relaxed and oriented with
normal speech and a logical, goal-directed thought process (Tr. 647). The claimant’s
mood was normal, but his affect was flat (Tr. 647). Dr. Palacio-Holman indicated the
claimant had average intelligence, an average fund of information, and demonstrated
some ability for abstract thought (Tr. 647). She stated his attention, concentration, and
memory were intact, and that he had good judgment, insight, and impulse control
(Tr. 647). The claimant was able to interpret common proverbs, but could not discuss
leisure reading or current events (Tr. 647). Dr. Palacio opined that the claimant’s overall
ability to adjust to stress was poor, and that he would likely decompensate with continued
stress based on his report of repeated episodes of decompensation (Tr. 648).
concluded that the claimant had psychological, cognitive, and emotional deficits that
would significantly interfere with his ability to perform occupationally (Tr. 648). More
specifically, she concluded that the claimant could not understand, remember, and carry
out both simple and complex instructions within a work setting; could not adapt, persist,
and keep pace within a work setting; and did not have the social ability to interact with
the public, co-workers, and supervisors (Tr. 648).
On November 15, 2013, the claimant presented paperwork to Dr. Locke regarding
a disability claim for his mental impairments (Tr. 742). Dr. Locke opined that the
claimant’s mental impairments were not disabling, and filled out the paperwork
accordingly (Tr. 742). Dr. Locke recommended the claimant resume mental health care,
but the claimant stated he could not do so due to work and distance (Tr. 742).
As to the claimant’s physical impairments, he established care with nurse
practitioner Vickie Holland on February 11, 2010 (Tr. 609-12).
At this initial
appointment, the claimant reported insomnia, cramps in his legs and shoulders, low back
pain, and a history of numbness in his hands, hypertension, night sweats, depression, and
alcohol abuse (Tr. 609, 613). Ms. Holland’s physical exam was normal apart from the
presence of a lipoma, bilateral breast enlargement, and an enlarged liver (Tr. 611). She
provided the claimant with bilateral night wrist splints for his hand numbness and
prescribed medication for hypertension and hypothyroidism (Tr. 612). She also strongly
advised the claimant to stop all alcohol consumption, and ordered an ultrasound of his
liver, the results of which showed probable fatty infiltration of the liver (Tr. 369). At a
follow-up appointment on March 2, 2010, the claimant reported the wrist splints relieved
the numbness in his hands (Tr. 575). On July 18, 2011, the claimant reported numbness
in his legs and cramping in his calves (Tr. 421-24). On examination, Ms. Holland noted
the claimant’s pulses and deep tendon reflexes were normal, but that he had muscle
rigidity and loss of sensation between his ankles and knees (Tr. 421). She ordered an
electromyography test, which revealed peripheral neuropathy in both legs (Tr. 419-420).
Thereafter, Ms. Holland treated the claimant’s pain with medication (Tr. 412-13, 417,
On June 23, 2012, Dr. Traci Carney performed a consultative physical
examination (Tr. 651-57). Her exam of the claimant’s legs revealed onychomycosis, but
no point tenderness or swelling, adequate peripheral pulses, normal deep tendon reflexes,
and no sensory or motor deficit (Tr. 653). Dr. Carney found the claimant had a safe,
stable gait, did not ambulate with an assistive device, and had no identifiable muscle
atrophy (Tr. 653). Her assessment included, inter alia, peripheral neuropathy, long term
history of alcohol abuse, posttraumatic stress disorder, and anxiety (Tr. 653).
State reviewing psychologist Dr. Ron Cummings completed a Mental Residual
Functional Capacity Assessment on July 12, 2012, and indicated that the claimant was
moderately limited in his ability to understand, remember, and carryout detailed
instructions and to interact with the general public (Tr. 95-97). Dr. Cummings concluded
that the claimant could perform simple and some complex work tasks for a sustained
period of time and at an appropriate pace with only limited contact with the general
public (Tr. 97). His findings were affirmed on review (Tr. 109-10).
State reviewing physician Dr. Kenneth Wainner completed a Physical Residual
Functional Capacity Assessment on July 17, 2012, and indicated that the claimant could
perform medium work with the postural limitations of occasional crawling and climbing
ladders, ropes or scaffolds; and the manipulative limitation of occasional overhead
reaching bilaterally (Tr. 324-31). His findings were affirmed on review (Tr. 107-09).
At the administrative hearing, the claimant testified that his neuropathy causes a
daily, painful, needle-like sensation on the bottom of his feet (Tr. 49-50). He also
testified that his hands cramp “just about every day” (Tr. 51). As to his legs, the claimant
stated that he experiences swelling from his calves to his ankles which he relieves by
elevating his feet for approximately an hour (Tr. 53-54). When asked if he had problems
concentrating and staying on task, the claimant replied that he did, and that he would go
back and forth to complete a task, but was not sure if he could follow a thirty minute
television show (Tr. 58-59). Regarding his sleep, the claimant indicated he slept a total
of six hours per day, but experiences nightmares and cramps in his legs (Tr. 59). The
claimant further testified he is able to tolerate crowds only once in a while because he
does not like people walking up behind him (Tr. 61). As to specific limitations, the
claimant stated he could sit for forty-five minutes before needing to stand or lie down,
stand for thirty to forty-five minutes, walk approximately one block, and lift up to ten
pounds (Tr. 62-63).
In his written opinion, the ALJ discussed the claimant’s hearing testimony and the
Third Party Function Report prepared by the claimant’s wife, and summarized the
medical evidence. The ALJ gave the Dr. Palacio-Holman’s opinions “little weight,”
finding they were wholly inconsistent with the body of her report (Tr. 30). He then gave
“great weight” to state agency reviewing opinions, finding Dr. Pearce’s opinion was
consistent with the claimant’s treatment history and Dr. Cummings’ opinion, and finding
Dr. Wainner’s opinion and Dr. Bailey’s opinion were consistent with the claimant’s
treatment history and Dr. Carney’s consultative exam (Tr. 30). The ALJ included a
limitation for the claimant’s shoulders in his RFC despite the VA’s conclusion that he
had no shoulder limitations (Tr. 30).
The claimant first argues that the ALJ erred in rejecting the opinions of
consultative examiner Dr. Palacio-Holman.
“An ALJ must evaluate every medical
opinion in the record, although the weight given each opinion will vary according to the
relationship between the disability claimant and the medical professional. . . . An ALJ
must also consider a series of specific factors in determining what weight to give any
medical opinion.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) [internal
citation omitted], citing Goatcher v. United States Department of Health & Human
Services, 52 F.3d 288, 290 (10th Cir. 1995). The pertinent factors are: (i) the length of
treatment relationship and frequency of examination; (ii) nature and extent of the
treatment relationship, including the treatment provided and the kind of examination or
testing performed; (iii) the degree to which the physician’s opinion is supported by
relevant evidence; (iv) consistency between the opinion and the record as a whole;
(v) whether or not the physician is a specialist in the area upon which an opinion is
rendered; and (vi) other factors brought to the ALJ’s attention which tend to support or
contradict the opinion. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003),
citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001). Here, the ALJ
succinctly summarized Dr. Palacio-Holman’s conclusions and rejected them because they
were inconsistent with the body of her report, but did not specify any inconsistencies or
note any of her findings on exam, nor did he mention, much less connect the evidence in
the record, to any of the other pertinent factors. The Commissioner argues that Dr.
Palacio-Holman’s findings that the claimant had average intelligence; some ability for
abstract thought; intact attention, concentration, and memory; good judgment, insight,
and impulse control; and her recommendation that the claimant be evaluated for
vocational rehabilitation support the ALJ’s determination that her opinions were
“wholly” inconsistent with her report. Additionally, the Commissioner argues that Dr.
Palacio-Holman’s opinions are inconsistent with other substantial evidence in the record
including Dr. Hoffman’s July 2011 examination and opinions. However, the ALJ offered
no such explanation for declining to impose any of Dr. Palacio-Holman’s restrictions
when forming the claimant’s RFC. See, e.g., Haga v. Astrue, 482 F.3d 1205, 1207–08
(10th Cir. 2007) (“[T]his court may not create or adopt post hoc rationalizations to
support the ALJ's decision that are not apparent from the ALJ's decision itself.”).
The claimant also argues, and the Court agrees that the ALJ did not properly
address his peripheral neuropathy when forming his RFC. In his written opinion, the ALJ
determined that the claimant’s peripheral neuropathy was a severe impairment at step
two, but neglected to include any limitations corresponding to this impairment in the
claimant’s RFC at step four or explain why no such limitations were needed (Tr. 27-32).
Indeed, most of the analysis at step four was devoted to discrediting the claimant’s
complaints and essentially calling into question the findings of severity at step two. What
the ALJ should have done instead was provide an explanation as to how an impairment
found to be severe at step two became so insignificant as to require no corresponding
limitations in the RFC at step four. See, e. g., Timmons v. Barnhart, 118 Fed. Appx. 349,
353 (10th Cir. 2004) (finding the ALJ should have “explained how a ‘severe’ impairment
at step two became ‘insignificant’ at step five.”); see also Hamby v. Astrue, 260 Fed.
Appx. 108, 112 (10th Cir. 2008) (“In deciding Ms. Hamby’s case, the ALJ concluded that
she had many severe impairments at step two. He failed to consider the consequences of
these impairments, however, in determining that Ms. Hamby had the RFC to perform a
wide range of sedentary work.”).
Because the ALJ failed to properly evaluate the medical evidence, and further
failed to explain how the claimant’s severe impairment of peripheral neuropathy
determined at step two became so insignificant as to require no limitations in his RFC at
step four, the decision of the Commissioner must be reversed and the case remanded to
the ALJ for further analysis. If such analysis results in any adjustment to the claimant’s
RFC, the ALJ should then re-determine what work, if any, the claimant can perform and
ultimately whether he is disabled.
In summary, the Court finds that correct legal standards were not applied by the
ALJ, and the Commissioner’s decision is therefore not supported by substantial evidence.
Accordingly, the decision of the Commissioner is hereby REVERSED, and the case is
REMANDED for further proceedings consistent with this Opinion and Order.
DATED this 17th day of March, 2017.
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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