Wilson v. Social Security Administration

Filing 19

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
PATRICE WILSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration, 1
Defendant.

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) Case No. CIV-15-397-SPS
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OPINION AND ORDER
The claimant Patrice Wilson 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 hereby 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 March 1, 1972, and was forty-one years old at the time of
the administrative hearing (Tr. 40). She has a high school education, some college, and
has worked as a bill collector, claims clerk, receptionist, and medical record clerk
(Tr. 66, 188). The claimant alleges that she has been unable to work since February 23,
2009, due to major depression, bipolar disorder, hypothyroidism, hypersensitive
cardiovascular disease, brittle diabetes, a sleep disorder, anxiety, and other (unspecified)
psychiatric disorders (Tr. 65, 241).
Procedural History
On February 29, 2012, the claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her
applications were denied. ALJ Bernard Porter conducted an administrative hearing and
determined that the claimant was not disabled in a written opinion dated May 2, 2014
(Tr. 15-27). 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,
416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant retained the residual functional capacity (“RFC”) to perform light work as
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defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), except that she was limited to frequent
handling, fingering, and feeling; occasional use of hand controls, climbing ramps and
stairs, and interaction with supervisors and co-workers; and could never climb ladders or
scaffolds, crawl, work at unprotected heights or around moving mechanical parts, be
exposed to temperature extremes, or interact with the public (Tr. 20). The ALJ further
found the claimant required a sit/stand option that allowed a change of position at least
every thirty minutes, and was limited to simple tasks and simple work related decisions
(Tr. 20). Due to episodic symptomology, the ALJ also found the claimant may miss one
day per month (Tr. 20). The ALJ concluded that although the claimant could not return
to her past relevant work, she was nevertheless not disabled because there was work that
she could perform in the regional and national economies, e. g., small products
assembler, electrical assembler, and conveyor line bakery worker (Tr. 25-27).
Review
The claimant contends that the ALJ erred by failing to properly: (i) account for her
mental impairments, and (ii) assess her credibility. The Court finds these contentions
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 bipolar
disorder, history of polysubstance abuse, diabetes mellitus, obesity, hypertension, sleep
apnea, anxiety disorder, history of carpal tunnel with corrective surgery, personality
disorder, and thyroid disorder (Tr. 18). The medical record reveals the claimant was
admitted to Laureate Psychiatric Clinic and Hospital for psychiatric stabilization on May
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1, 2008, after reporting increased irritability, a depressed mood, lethargy, fatigue, and a
general decrease in her level of functioning (Tr. 260-69). She was discharged on May 5,
2008, and was diagnosed with major depressive disorder, recurrent, severe; cannabis
abuse; amphetamine abuse; hypertension; hypothyroidism; and diabetes (Tr. 269). Dr.
Michael Dubriwny noted he was unclear whether the claimant’s lethargy was related to
her mood disorder or substance abuse, but that her financial distress contributed to her
symptoms (Tr. 269). Dr. R.T. Bowden managed the claimant’s psychotropic medications
from August 2011 through May 2012, when he discharged her from his care due to
noncompliance (Tr. 854-60, 902). The claimant also participated in counseling with
Gayle McDonald from October 2011 through September 2012 (Tr. 657-77).

Ms.

McDonald regularly noted the claimant had a bright affect and was making good progress
as to her treatment plan, however, on November 15, 2011, and again on November 22,
2011, the claimant’s progress was moderate, and her affect was depressed and anxious,
respectively (Tr.657-77).
The claimant established care with Dr. Nance Weddle on June 24, 2009 (Tr. 73234). Dr. Weddle regularly managed the claimant’s medications for hypertension and
diabetes, but her treatment for the claimant’s panic disorder and depression was sporadic
(Tr. 687-754, 904-43, 956-61).

Dr. Weddle occasionally counseled the claimant

regarding her depression and periodically prescribed psychotropic medications, but
regularly noted upon examination that the claimant was oriented and alert, had an
appropriate mood/ affect, and that her insight and judgment were good (Tr. 687-733, 90730, 957-61).

On July 24, 2012, Dr. Weddle noted the claimant’s mood/affect was
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appropriate, but flat, and that her insight and judgment were reasonably intact (Tr. 92325). She prescribed an antianxiety medication, and encouraged the claimant to keep
looking for a job, opining that “getting busy and active and contributing to the household
would be very good for her.” (Tr. 924). On February 21, 2012, in response to a request
for a narrative report regarding the claimant’s ability to work, Dr. Weddle stated she did
not have “any reason to think [the claimant] could not hold down a full time job. She is
not disabled in my medical opinion.” (Tr. 766).
Dr. Kathleen Ward performed a psychological consultative examination on April
10, 2012 (Tr. 862-66).

Dr. Ward observed the claimant was sometimes “silly and

distracted,” appeared younger than her stated age, and had a chatty, rambling demeanor
(Tr. 864).

She found the claimant had normal thought processes and content, was

oriented, and had average intellectual ability, but did have some deficits in social
judgment and problem solving (Tr. 864-65). Dr. Ward diagnosed the claimant with
bipolar disorder, amphetamine dependence in early remission, and cannabis dependence
in early remission, and opined that her long-term prognosis would likely depend on
treatment compliance and relapse prevention (Tr. 865).
State reviewing psychologist Dr. Dan M. Cox completed a Psychiatric Review
Technique form on May 23, 2012 (Tr. 870-83). Dr. Cox found that the claimant's mental
impairments were nonsevere and consisted of bipolar disorder and amphetamine and
cannabis dependence in early remission (Tr. 870-79. As a result, Dr. Cox found that the
claimant was mildly impaired in the functional categories of activities of daily living,

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maintaining social functioning, and maintaining concentration, persistence, or pace
(Tr. 880).
At the administrative hearing, the claimant testified as to her past work history, her
impairments, and her medical treatment (Tr. 33-72). She stated the primary reasons she
could not work were her diabetes and cloudy mental status (Tr. 49). As to her mental
impairments, she stated she has taken a number of medications and nothing has been
effective in treating her confusion and memory loss (Tr. 49-52).

She testified her

diabetes causes a lack of energy, and negatively impacts her psychological state (Tr. 5354). She further stated that her medication for depression is effective “to an extent.”
(Tr. 54). When asked how she got along with people, the claimant indicated she did not
do well with crowds, and although she isn’t completely uncomfortable with people in a
room, she communicates much better on the phone, and that her anxiety increases if she
has a lot of things going on at once (Tr. 58). The claimant also testified that it takes a lot
of effort for her to maintain attention and concentration, and that she gets exhausted
doing so for long periods (Tr. 59).
In his written decision, the ALJ summarized the claimant’s testimony, as well as
some of the medical evidence. Regarding the claimant’s mental impairments, the ALJ
discussed Dr. Ward’s findings as to the claimant’s ability to sustain focus at step three,
but did not mention or discuss any of her findings at step four, nor did he assign them any
weight (Tr. 19-25). At step four, the ALJ noted that Dr. Bowden managed the claimant’s
medication for her mental impairments, but he did not mention or discuss the claimant’s
inpatient mental health treatment in May 2008 (Tr. 24-25).
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The ALJ devoted the

majority of his step four analysis to his reasons for not finding the claimant credible,
including noncompliance and drug use (Tr. 20-25). He then found the claimant not
disabled at step five (Tr. 26-27).
“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 adopted Dr. Ward’s findings regarding the presence of
the claimant’s severe mental impairments (Tr. 18). Additionally, he appeared to adopt
Dr. Ward’s findings as to the claimant’s ability to sustain focus because he referenced
such findings in concluding that the claimant was moderately limited in her ability to
maintain concentration, persistence, or pace; however, he entirely ignored Dr. Ward’s
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opinions as to the claimant’s social judgment and problem solving ability (Tr. 419, 425).
It was error for the ALJ to “pick and choose” in this way, i. e., to cite findings supportive
of her own determination while disregarding unsupportive findings. See, e. g., Hardman
v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004) (noting that the ALJ may not “pick and
choose among medical reports, using portions of evidence favorable to his position while
ignoring other evidence.”), citing Switzer v. Heckler, 742 F.2d 382, 385–86 (7th Cir.
1984) (“Th[e] report is uncontradicted and the Secretary's attempt to use only the portions
favorable to her position, while ignoring other parts, is improper.”). In addition to
evaluating Dr. Ward’s findings according to the appropriate standards and indicating
what weight he was assigning to them, the ALJ should have explained why he found
certain aspects of Dr. Ward’s findings persuasive but not others. See Haga v. Astrue, 482
F.3d 1205, 1208 (10th Cir. 2007) (“[T]he ALJ should have explained why he rejected
four of the moderate restrictions on Dr. Rawlings' RFC assessment while appearing to
adopt the others. An ALJ is not entitled to pick and choose through an uncontradicted
medical opinion, taking only the parts that are favorable to a finding of nondisability. . . .
[T]he ALJ did not state that any evidence conflicted with Dr. Rawlings' opinion or mental
RFC assessment. So it is simply unexplained why the ALJ adopted some of Dr.
Rawlings' restrictions but not others.”).
Additionally, 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, 362 F.3d at 678, quoting Soc. Sec. Rul.
96-7p, 1996 WL 374186 (July 2, 1996). But the Commissioner issued a ruling on March
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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 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). Thus, even if the ALJ’s credibility analysis was 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. Moreover, the ALJ relied
heavily on the claimant’s failure to follow prescribed treatment for her impairments when
discrediting her subjective statements without considering whether the claimant had an
acceptable reason for such noncompliance. See Frey v. Bowen, 816 F.2d 508, 517 (10th
Cir.1987), citing Weakley v. Heckler, 795 F.2d 64, 66 (10th Cir.1986), quoting Teter v.
Hecker, 775 F.2d 1104, 1107 (10th Cir.1985) (“In reviewing the impact of a claimant's
failure to undertake treatment on a determination of disability, we consider four elements:
(1) whether the treatment at issue would restore claimant's ability to work; (2) whether
the treatment was prescribed; (3) whether the treatment was refused; and, if so, (4)
whether the refusal was without justifiable excuse.”) [emphasis added]. This analysis,
which is entirely absent in the ALJ’s opinion, was particularly important here because
both the claimant and Dr. Weddle attributed some of her noncompliance to her
depression (Tr. 956), and there are numerous references to the claimant’s inability to
afford treatment (Tr. 261-62, 269, 299, 305, 374, 449, 743, 863). See, e. g., Thompson v.
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Sullivan, 987 F.2d 1482, 1489-90 (10th Cir. 1993) (An inability to pay may justify the
failure to follow treatment); McCleave v. Colvin, 2013 WL 4840477, at *6 n. 6 (W.D.
Okla. Sept. 10, 2013) (Bipolar disorder may justify the failure to follow treatment), citing
20 C.F.R. §§ 404.1530(c), 416.930(c) and Jelinek v. Astrue, 662. F.3d 805, 814 (7th Cir.
2011) (“ALJ’s assessing claimants with bipolar disorder must consider possible
alternative explanations before concluding that noncompliance with medication supports
and adverse credibility inference.”). 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

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