Matthews v. Social Security Administration

Filing 21

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
PATRICIA L. MATTHEWS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-15-411-KEW

OPINION AND ORDER

Plaintiff Patricia L. Matthews (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 March 17, 1955 and was 59 years old at
the time of the ALJ’s decision.
through the eleventh grade.
home health provider.

Claimant completed her education

Claimant has worked in the past as a

Claimant alleges an inability to work

beginning June 1, 2012 due to limitations resulting from high blood
pressure, arthritis, foot problems, and right arm problems.

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Procedural History
On

October

11,

2012,

Claimant

protectively

filed

for

disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) of the Social Security Act.

On September 20, 2012, Claimant

filed an application for supplemental security income pursuant to
Title XVI (42 U.S.C. § 1381, et seq.).

Claimant’s applications

were denied initially and upon reconsideration.

On May 13, 2014,

an administrative hearing was held before Administrative Law Judge
(“ALJ”) Bernard Porter by video presiding from McAlester, Oklahoma.
While Claimant’s representative appeared at the hearing, Claimant
failed

to

appear.

The

ALJ

proceeded

with

the

hearing

but

questioned whether a supplemental hearing should be held. He issued
a Request to Show Cause to Claimant to which Claimant’s attorney
responded that Claimant’s ride to the hearing site in Ada, Oklahoma
backed out at the last minute and she could not call.

The ALJ

determined Claimant failed to show good cause as to why she did not
appear and found that she had constructively waived her right to
appear. He issued an unfavorable decision on August 25, 2014. The
Appeals Council denied review of the ALJ’s decision on August
2015.

25,

As a result, the decision of the ALJ represents the

Commissioner’s final decision for purposes of further appeal.
C.F.R. §§ 404.981, 416.1481.

4

20

Decision of the Administrative Law Judge
The ALJ made his decision at step four of the sequential
evaluation. He determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform her past relevant work. He
also determined Claimant could perform medium work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly

develop

the

record

regarding

Claimant’s

physical

impairments; and (2) failing to perform a proper credibility
determination.
Duty to Develop the Record
In his decision, the ALJ found Claimant suffered from the
severe

impairments

obesity.

(Tr. 13).

of

neck

strain/sprain,

hypertension,

The ALJ determined Claimant retained the RFC

to perform her past relevant work as a home health provider.
16).

and

He also found Claimant could perform medium work.

(Tr.
In so

doing, he found Claimant was limited to lifting/carrying 50 pounds
occasionally and 25 pounds frequently; sitting for six hours and
standing or walking for six hours; pushing or pulling as much as
she could lift/carry; occasionally climb ramps and stairs but never
climb ladders, ropes, or scaffolds and never crawl.

Claimant was

unable to read small print but can read ordinary newspaper or book-

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style print.

She could not work around unprotected heights or

moving mechanical parts.
by normal breaks.

Her time off task could be accommodated

(Tr. 14).

After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of cook helper,
laundry worker, and cleaner II, all of which the ALJ determined
existed in sufficient numbers in both the regional and national
economies. (Tr. 18). As a result, the ALJ determined Claimant was
not under a disability from June 1, 2012 through the date of the
decision.

Id.

Claimant contends the ALJ should have ordered a consultative
examination to evaluate her physical impairments.
Claimant

asserts

that

her

neck,

shoulder,

and

Specifically,
back

problems

constituted severe impairments which should have been examined
because the record suggested a reasonable possibility that she had
severe impairments in these areas.

Claimant sought treatment for

pain in the bilateral posterior neck and bilateral shoulder areas
on October 31, 2013.

(Tr. 354-58).

The problem continued in

December of 2013 when she was treated for inflammation of the
collar bone, back pain, and shoulder joint pain. Claimant received
Hydrocodone for the condition.

(Tr. 371-73).

She continued

treatment for shoulder joint pain and back pain during March of
2014, receiving Norco for the problem.

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(Tr. 367-69).

Claimant

also suffered from pain when turning her neck in April of 2014.
(Tr.

363-66).

Ultimately,

the

ALJ

strain/sprain to be a severe impairment.

found

Claimant’s

neck

(Tr. 13).

A social security disability hearing is nonadversarial and the
ALJ bears responsibility for ensuring that “an adequate record is
developed during the disability hearing consistent with the issues
raised.”

Branam v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004)

quoting Henrie v. United States Dep't of Health & Human Services,
13 F.3d 359, 360-61 (10th Cir. 1993).

As a result, “[a]n ALJ has

the duty to develop the record by obtaining pertinent, available
medical records which come to his attention during the course of
the hearing.”

Id. quoting Carter v. Chater, 73 F.3d 1019, 1022

(10th Cir. 1996).

This duty exists even when a claimant is

represented by counsel.

Baca v. Dept. of Health & Human Services,

5 F.3d 476, 480 (10th Cir. 1993).

The court, however, is not

required to act as a claimant’s advocate.

Henrie, 13 F.3d at 361.

The duty to develop the record extends to ordering consultative
examinations and testing where required. Consultative examinations
are used to “secure needed medical evidence the file does not
contain such as clinical findings, laboratory tests, a diagnosis or
prognosis

necessary

for

decision.”

20

C.F.R.

§

416.919a(2).

Normally, a consultative examination is required if
(1) The additional evidence needed is not contained in
the records of your medical sources;

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(2) The evidence that may have been available from your
treating or other medical sources cannot be obtained for
reasons beyond your control, . . .
(3) Highly technical or specialized medical evidence that
we need is not available from your treating or other
medical sources;
(4) A conflict, inconsistency, ambiguity or insufficiency
in the evidence must be resolved, and we are unable to do
so by recontacting your medical source; or
(5) There is an indication of a change in your condition
that is likely to affect your ability to work.
20 C.F.R. § 416.909a(2)(b).

The overall medical record is sparse in this case.

Claimant

has not helped her cause by failing to show for consultative
appointments and the administrative hearing due to transportation
issues.

However, the goal of these proceedings is to accurately

ascertain Claimant’s impairments and functional limitations and
ability to engage in basic work activities.

Certainly, Claimant’s

problems with neck, back, and shoulder pain are consistently
documented in the treatment record but an insufficiency in the
evidence exists such that further consultative opinion evidence is
required to accurately and adequately develop the record.

On

remand, the ALJ shall order such examinations and, in order to
limit future issues for appeal, obtain medical source statements on
the functional limitations posed by this condition.

8

Credibility Determination
The ALJ found Claimant was not “entirely credible.” (Tr. 15).
He based this conclusion on the lack of treatment, the adequacy of
over the counter treatment for her conditions, and the lack of
objective medical evidence. (Tr. 15-16). Since the ALJ’s decision
in this matter, the Social Security Administration has revised its
rulings

on

evaluating

statements

related

to

the

intensity,

persistence, and limiting effects of symptoms in disability claims what heretofore has been known as “credibility” assessments.

Soc.

Sec. R. 16-3p, 2106 WL 1119029 (March 16, 2016), superceding Soc.
Sec. R. 96-7p, 1996 WL 374186 (July 2, 1996).

On remand, the ALJ

shall

Sec.

apply

the

new

guidelines

under

Soc.

R.

16-3p

in

evaluating Claimant’s testimony regarding “subjective symptoms”.

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.

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IT IS SO ORDERED this 31st day of March, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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