Evans 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
SUSAN ANNETTE EVANS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration, 1
Defendant.

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) Case No. CIV-15-456-SPS
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OPINION AND ORDER
The claimant Susan Annette Evans 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 June 30, 1963, and was fifty years old at the time of the
administrative hearing (Tr. 44). She has a master’s degree in counseling, and has worked
as a caseworker, therapist, and mental retardation aide (Tr. 47, 68). The claimant alleges
that she has been unable to work since August 4, 2011, due to migraine headaches, back
problems, hypertension, bipolar disorder with psychotic features, anxiety, arthritis,
degenerative scoliosis, an enlarged heart, attention deficit/hyperactivity disorder,
dizziness, sleep apnea, pain and numbness in her hands and feet, and shortness of breath
(Tr. 179).
Procedural History
On November 30, 2011, 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. §§ 138185. Her applications were denied. ALJ Bernard Porter conducted an administrative
hearing and determined that the claimant was not disabled in a written opinion dated
March 24, 2014 (Tr. 18-34). 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.

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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”) perform a limited range of
light work, i. e., she could lift/carry/push/pull twenty pounds occasionally and ten pounds
frequently; could sit/stand/walk for six hours each during an eight-hour workday; could
frequently handle, finger, feel, balance, stoop, and crouch; could occasionally kneel, use
hand and foot controls, and climb ramps or stairs; but could never crawl, climb ladders or
scaffolds, work at unprotected heights or around moving mechanical parts, or work in
environments with temperature extremes or exposure to dust, fumes, and gasses (Tr. 24).
The ALJ also found the claimant required a sit/stand option allowing for a change in
position at least every thirty minutes (Tr. 24). The ALJ further found the claimant could
perform simple tasks and simple work related decisions with no interaction with the
general public (Tr. 24). Due to episodic symptomology, the ALJ also found the claimant
would be off task up to five percent of the workday (Tr. 240). 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 national economy, e. g.,
inspector packer, small product assembler, and electrical accessory assembler (Tr. 32-33).
Review
The claimant contends that the ALJ erred by failing to: (i) adequately account for
her moderate difficulties with concentration, persistence, or pace; and (ii) properly
evaluate the opinion of Dr. Everett Bayne. The Court agrees that the ALJ erred in

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analyzing Dr. Bayne’s opinion, 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 hypertension,
lumbar disc disease, migraine headaches, degenerative scoliosis, early chronic obstructive
pulmonary disease, obesity, major obstructive sleep apnea, history of polysubstance
abuse, bipolar disorder, schizoaffective disorder, attention deficit/hyperactivity disorder,
anxiety disorder, and posttraumatic stress disorder (Tr. 20).

The relevant medical

evidence reveals that the claimant received inpatient mental health care on two separate
occasions, and subsequently required ongoing medication management (Tr. 420-40, 61,
575-92). The claimant was first hospitalized at Rolling Hills Hospital from August 4,
2011, through August 22, 2011, due to depression, suicidal ideation, and hallucinations
(Tr. 430-34). The claimant’s treatment consisted of medication management as well as
group and individual therapy (Tr. 431-33). At discharge, Dr. Bayne noted the claimant’s
hands were trembling, and that she had no suicidal ideations or intent (Tr. 433). He
diagnosed her with bipolar disorder, mixed, with psychosis, and anxiety disorder
(Tr. 433). The claimant was next treated at Rolling Hills Hospital from September 9,
2011, through October 3, 2011, after police discovered her “wandering around town half
naked.” (Tr. 420-24). Upon admission, Dr. Bayne noted the claimant was confused,
forgetful, and distracted; had delusions; and that her immediate recall and recent and
remote memory were poor (Tr. 421). During treatment, which also included medication
management and therapy, the claimant became more lucid, could carry on a conversation,
and had fewer loose associations (Tr. 422-23). At discharge, Dr. Bayne noted the
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claimant was pleasant, smiling, and quiet, but would engage in conversation (Tr. 423).
He diagnosed her with bipolar disorder, depressed, with psychotic features, and delirium
(Tr. 423).
On October 10, 2011, Dr. Bayne completed a Medical Source Statement wherein
he opined that the claimant could not remember, comprehend, and carry out simple and
complex instructions on an independent basis; could not respond to work pressure,
supervision, and coworkers; but could handle funds (Tr. 442). Dr. Bayne’s observations
on this form very closely match those he made upon admitting the claimant to Rolling
Hills Hospital in September 2011, except he additionally described the claimant’s daily
activities as “does not want to do anything no interest.” (Tr. 420-23, 442).
Dr. Raymond Fuchs conducted a psychological consultative examination on
January 1, 2012 (Tr. 463-69). Dr. Fuchs observed that the claimant was alert, attentive,
and oriented, and displayed no elements of possible distraction or psychotic-like
decompensations (Tr. 463, 467). He noted she had a very flat affect, depressed and sad
mood, downward gaze, and a somewhat threat-sensitive reaction, but indicated that her
expressiveness increased through the interview, and that some of her threat sensitivity
may result from excessive substance abuse (Tr. 465, 467). As to the claimant’s speech,
Dr. Fuchs noted it was brief, to the point, somewhat tense, and downcast in volume and
tone, but increased in positivism and force as the interview progressed (Tr. 467). As to
the claimant’s cognitive functioning, he indicated her intelligence and fund of knowledge
were average, and her recall and memory appeared normal (Tr. 467). The claimant’s
thought processes were conversational (but minimal), non-tangential, and without
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decompensating elements (Tr. 467).

Additionally, the claimant was focal and had

topically appropriate thought content without exaggerations, preoccupations, fragments,
or loose associations (Tr. 467). Dr. Fuchs diagnosed the claimant with polysubstance
abuse, chronic, apparently in remission, possible impact on psychosis; bipolar disorder
with psychotic features; and major depressive disorder, recurrent (Tr. 468). He opined
that the claimant’s ability to concentrate and complete tasks was “intermittently various
from adequate to good to extremely impaired by internal preoccupations, trauma, and
possible decompensating elements of early states of psychotic-like disability,” and that
her judgment was somewhat impaired by episodes of psychosis, but was clear and
thoughtful during episodes of positive mental health (Tr. 468). Dr. Fuchs indicated the
claimant’s prognosis was poor to fair at best (Tr. 468).
At the administrative hearing, the claimant testified as to her past work history, her
impairments, and her medical treatment (Tr. 40-72). She stated her mental impairments
were the primary reason she could not work (Tr. 51).

She further stated she gets

confused easily, has not driven in more than a year due to anxiety, and that her anxiety
increases when she has to “deal with people.” (Tr. 52). Regarding the symptoms related
to her anxiety, the claimant indicated she cries frequently, experiences chest pain and
shortness of breath, and hurts “all the time.” (Tr. 53).

The claimant testified that

treatment has not helped “at all,” and that her medications are only somewhat effective
(Tr. 53). She stated her memory decreased as her overall mental health decreased, and
that she was unable to recall any details from her psychotic episodes (Tr. 60). When
asked if she could maintain attention and concentration during a thirty minute television
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show, the claimant indicated that she could not always do so because of distracting
hallucinations (Tr. 60). When asked if she watched movies, the claimant said she didn’t
because she is unable to stay focused long enough or recall what the movie was about
(Tr. 63). The claimant indicated she experiences hallucinations daily, and that they are
triggered when people around her argue (Tr. 65).
In his written decision, the ALJ summarized the medical evidence, the claimant’s
hearing testimony, a Third Party Function Report submitted by her husband, and a letter
from her counselor (Tr. 24-32). The ALJ gave little weight to Dr. Bayne’s October 10,
2011, Medical Source Statement because it was inconsistent with his October 3, 2011,
discharge summary and Dr. Fuchs’ exam (Tr. 31). Nonetheless, the ALJ limited the
claimant to simple tasks and simple work related decisions with no interaction with the
general public, and found that she would be off task up to five percent of the workday
due to episodic symptomology (Tr. 31).
As an initial matter, the Court notes that the ALJ found Dr. Bayne never
established a treatment relationship with the claimant because he only saw her during her
inpatient hospitalizations (Tr. 31). The Court also notes that as part of her assertion that
the ALJ did not properly analyze Dr. Bayne’s opinion, the claimant argues that Dr. Bayne
was a treating physician. The Court need not address this issue, however, because the
ALJ’s analysis of Dr. Bayne’s opinion is erroneous regardless of how his treatment is
categorized. “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
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factors in determining what weight to give any medical opinion.” Hamlin v. Barnhart,
365 F.3d 1208, 1215 (10th Cir. 2004), citing Goatcher v. United States Department of
Health & Human Services, 52 F.3d 288, 290 (10th Cir. 1995). The pertinent factors
include the following: (i) the length of the treatment relationship and the frequency of
examination; (ii) the 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. See Watkins v.
Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003), citing Drapeau v. Massanari, 255
F.3d 1211, 1213 (10th Cir. 2001).
Although the ALJ referenced the correct analysis at the outset of step four, and
thoroughly summarized Dr. Bayne’s Medical Source Statement, he provided no analysis
at all in relation to the pertinent factors. This was important because Dr. Bayne raised
questions about the claimant’s ability to perform skilled or unskilled work. Additionally,
The ALJ rejected Dr. Bayne’s opinion partly because his October 2011 discharge
summary reflected improvement in the claimant’s mental status upon discharge from
inpatient care (Tr. 31). In doing so, however, the ALJ disregarded the highly structured
environment the claimant experienced during her lengthy hospitalization. See, e. g., 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00 (“[A claimant’s ability to complete tasks in
settings that are highly structured, or that are less demanding or more supportive than
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typical work settings does not necessarily demonstrate [a claimant’s] ability to complete
tasks in the context of regular employment during a normal workday or workweek.”).
Lastly, the ALJ engaged in improper picking and choosing when he referenced only some
of Dr. Fuchs’ report as support for his finding that Dr. Bayne’s opinion was inconsistent
(Tr. 31). The ALJ noted Dr. Fuchs’ finding that the claimant was “alert, oriented, and
displayed no elements of possible distraction or psychotic decompensations with
appropriate recall, memory and thought content,” but ignored his opinions as to her
ability to concentrate and complete tasks, judgment, and prognosis (Tr. 467-68). 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.”). The ALJ should have explained why he found
certain aspects of Dr. Fuchs’ report 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. . . . [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.”).
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

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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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