King v. Social Security Administration

Filing 20

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
RHONDA A. KING,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-15-442-KEW

OPINION AND ORDER

Plaintiff Rhonda A. King (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

discussed

below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

Commissioner’s decision should be and is REVERSED and 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).
Security

Act

“only

if

A claimant is disabled under the Social
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

§423(d)(2)(A).

in

the

national

economy.

.

.”

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:

This Court’s review is limited to

first, whether the decision was supported by

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).

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substantial

evidence;

and,

standards were applied.

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

(10th Cir. 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 & Human

Servs., 933 F.2d 799, 800 (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 September 25, 1968 and was 45 years old
at the time of the ALJ’s decision.
school education.

Claimant completed her high

Claimant has worked in the past as an EKG/EEG

technician at a hospital, residential care coordinator at an2011
assisted living facility, and the services director at a nursing
home. Claimant alleges an inability to work beginning June 1, 2011

3

due to limitations resulting from anxiety attacks, shoulder, back,
and neck pain, and migraine headaches.
Procedural History
On July 12, 2012, Claimant protectively 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.

Claimant’s

applications were denied initially and upon reconsideration.

January 22, 2014,

On

an administrative hearing was held before

Administrative Law Judge (“ALJ”) Luke Liter in Tulsa, Oklahoma. By
decision dated March 21, 2014, the ALJ denied Claimant’s requests
for benefits.

The Appeals Council denied review of the ALJ’s

decision on September 16, 2015.

As a result, the decision of the

ALJ represents the Commissioner’s final decision for purposes of
further appeal.

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 determined that while Claimant suffered from severe

impairments, he did not meet a listing and retained the residual
functional capacity (“RFC”) to perform a full range of light work
with limitations.
Errors Alleged for Review

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Claimant asserts the ALJ committed error in (1) failing to find
Claimant’s impairments meet or equal a listing; (2) failing to
properly evaluate opinion evidence; and (3) performing an improper
credibility analysis.

Consideration of the Listing
In his decision, the ALJ found Claimant suffered from the
severe impairments of a mood disorder, pain disorder, borderline
personality disorder, spine impairment, and lumbar radiculopathy.
(Tr. 17).

The ALJ determined Claimant retained the RFC to perform

a full range of light work.

(Tr. 20).

In so doing, he found

Claimant was limited to lifting/carrying and pushing/pulling 20
pounds occasionally and 10 pounds frequently; sitting for six hours
and standing or walking for six hours in an eight hour workday; no
climbing ladders, ropes, or scaffolds, but occasionally climbing
ramps and stairs.

Claimant could also occasionally stoop, kneel,

crouch, and crawl.
tolerate

exposure

The ALJ determined Claimant was unable to
to

hazards

such

dangerous moving machinery parts.

as

unprotected

heights

or

Claimant was limited to simple

and some complex tasks (defined as semi-skilled work with a
specific vocational preperation (SVP) of 3-4).

Claimant’s contact

with the public, co-workers, and supervisors should be superficial
(defined as brief and cursory contact).

5

(Tr. 20).

After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of office
helper,

sorter,

and

clerical

mailer,

all

of

which

the

ALJ

determined existed in sufficient numbers in both the regional and
national economies.

(Tr. 29-30).

As a result, the ALJ determined

Claimant was not under a disability from June 1, 2011 through the
date of the decision.

(Tr. 30).

Claimant contends the ALJ should have determined that she met
or equaled Listing 5.08 regarding digestive disorders.
three,

Claimant

bears

the

burden

of

demonstrating

At step
that

her

condition meets or equals all of the specified criteria of the
particular listing.
Claimant

Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

specifically

asserts

she

meets

the

requirements

for

Listing 5.08, which requires “[w]eight loss due to any digestive
disorder despite continuing treatment as prescribed, with BMI (Body
Mass

Index)

of

less

than

17.50

calculated

on

at

least

two

evaluations at least 60 days apart within a consecutive 6–month
period.” 20 C.F.R. § 404, Subpt. P, App. 1, Listing 5.08 (emphasis
omitted). The formula for calculating a person's BMI is: BMI =
Weight in pounds / (Height in Inches x Height in Inches) x 703.
See Id. § 5.00(G)(2)(b).

6

The ALJ recognized Claimant suffered from gastritis, but
concluded the condition imposed no more than minimal limitations.
(Tr. 18).

The problem in this case appears to be an accurate

measure of Claimant’s height.

In a record from August 14, 2012,

Claimant’s height is recorded as 63" and her weight at 100 pounds.
(Tr. 334).

This would result in a BMI of 17.71.

Claimant is

pulling the height measurement from one record and applying it to
a

different

point

in

time.

In

order

to

accurately

compare

Claimant’s fluctuations in the BMI, the height measurement within
the same record should logically be utilized in the mathematical
BMI formula. Thus, Claimant’s BMI on August 14, 2012 does not meet
the criteria of Listing 5.08.

Indeed, the record also cited by

Claimant from November 26, 2012 indicates Claimant’s height was 62"
and her weight was 101 pounds.

(Tr. 588).

This would result in a

BMI of 18.47, also outside of the requirements of Listing 5.08. As
a result, Claimant has failed to meet her burden of demonstrating
that she met or equaled Listing 5.08.
Claimant also contends she meets or equals Listing 5.06B5. To
meet

this

Listing,

“[i]nflammatory

bowel

Claimant

must

disease

(IBD)

show

she

documented

suffers
by

from

endoscopy,

biopsy, appropriate medically acceptable imaging, or operative
findings with:

7

*

*

*

5. Involuntary weight loss of at least 10 percent from baseline, as
computed in pounds, kilograms, or BMI, present on at least two
evaluations at least 60 days apart.”

20 C.F.R. § Pt. 404, Subpt.

P, App. 1, Listing 5.06B5.
Claimant has failed to identify a diagnosis in the record of
inflammatory bowel disease documented by one of the approved
diagnostic measures.

Claimant only cites to a reference to a

thickening of the colon wall in the face of repeated biopsies which
were negative.

(Tr. 441, 369, 421-23, 429, 432, 438).

Moreover,

the medical records cited do not document a ten percent weight loss
over a 60 day period - only a single ten pound weight loss between
two visits.

Claimant has again failed to demonstrate that she

meets or equals Listing 5.06B5.
Evaluation of the Opinion Evidence
Claimant contends the ALJ improperly evaluated and rejected
the opinion of consultative mental examiner, Dr. Beth Jeffries. On
October

27,

2012,

Dr.

Jeffries

completed

a

mental

status

examination of Claimant. Dr. Jeffries diagnosed Claimant with pain
disorder, mood disorder, NOS, and borderline personality disorder,
provisional.

(Tr. 530).

She concluded her report by stating

I believe that although she might have the ability to
maintain concentration over an 8 hour work day, and a 40
8

hour work week, due to personality disturbance and mood
lability she likely could not do so consistently. I do
not believe she could manage pace or flexibility within
an occupational setting without becoming emotionally
labile, and potentially acting out on her frustrations
with aggression.
She demonstrated adequate social
skills, but a manipulative quality was strongly present.
She has the ability to understand simple and complex
instructions, and she likely could retain the information
but may struggle to implement those instructions as
needed. Prognosis is guarded at best, given the strong
likelihood of a personality disorder pattern.
(Tr. 531).
The ALJ gave Dr. Jeffries’ opinion “little weight”.

His sole

basis for doing so was that Claimant reported she had no drug use
for eight years when the evidence indicated Claimant had used drugs
on multiple occasions.

The ALJ then called all of Claimant’s

statements to Dr. Jeffries into question and the rejection of the
opinion.

(Tr. 24).

The problem with the ALJ’s evaluation of Dr.

Jeffries’ opinion is he bases his rejection entirely upon one
inaccuracy in Claimant’s statements to the consultative examiner
without

recognizing

testing

and

evaluation.

noted

that

Dr.

probable

Jeffries

administered

manipulation

in

her

objective

professional

Yet, Dr. Jeffries found limitations in her ability to

engage in basic work activities.

She did not accept Claimant’s

testimony without qualification or condition.
The ALJ is required to evaluate every medical opinion. Salazar

9

v. Barnhart, 468 F.3d 615, 625-26 (10th Cir. 2006).

Even non-

treating consultative physician’s opinions must be evaluated under
the factors listed in 20 C.F.R. §§ 1527(d) and 416.927(d).
v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003).

reference in that section are:

Doyal

The factors

(1) the length of the treatment

relationship and the frequency of examination; (2) the nature and
extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the
degree to which the physician's opinion is supported by relevant
evidence; (4) consistency between the opinion and the record as a
whole; (5) whether or not the physician is a specialist in the area
upon which an opinion is rendered; and (6) other factors brought to
the ALJ's attention which tend to support or contradict the
opinion.

After considering these factors, the ALJ must “give good

reasons” for the weight he ultimately assigns the opinion.

20

C.F.R. § 404.1527(d)(2); Robinson v. Barnhart, 366 F.3d 1078, 1082
(10th Cir. 2004)(citations omitted).

Any such findings must be

“sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinions and the reason for that weight.”

Id.

“Finally, if the

ALJ rejects the opinion completely, he must then give specific,
legitimate reasons for doing so.”

10

Watkins, 350 F.3d at 1301

(quotations omitted). The single basis for the wholesale rejection
of Dr. Jeffries’ opinion did not provide a specific and legitimate
basis for entirely discounting the opinion.
shall

reassess

Dr.

Jeffries’

opinion,

On remand, the ALJ
noting

her

stated

professional opinion on Claimant’s manipulation yet reaching an
opinion on Claimant’s occupational abilities.
Claimant also challenges the manner in which the ALJ evaluated
the third party statement of Claimant’s daughter. This Court finds
the ALJ’s evaluation of this opinion evidence to be well-supported
by the record.
Credibility Determination
Claimant’s testimony regarding her level of limitation and
pain was questioned by the ALJ.
the

record

testimony.

which

were

He cited to specific portions of

directly

inconsistent

with

This Court finds no error in the analysis.

Claimant’s
However,

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). Given the fact this case is being remanded on other

11

grounds, the ALJ shall apply the new guidelines under Soc. Sec. 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, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), 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 31st day of March, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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