Old v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Steven P. Shreder REVERSRING and REMANDING the decision of the ALJ. (tmb, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
JAMES DAVID OLD,

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

Case No. CIV-15-481-SPS

OPINION AND ORDER
The claimant James David Old 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
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 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,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
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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).

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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.
Claimant’s Background
The claimant was born April 4, 1965, and was forty-nine years old at the time of
the administrative hearing (Tr. 40, 186). He completed three years of college, and has
worked as a correctional officer, instructor, recruiter, and maintenance supervisor of
firefighter equipment (Tr. 33). The claimant alleges he has been unable to work since
February 28, 2013, due to arthritis in his back, knees, hips, and shoulder; high blood
pressure; post-traumatic stress disorder (PTSD); being a carrier of Hepatitis C; asthma;
and sleep apnea (Tr. 213).
Procedural History
On May 17, 2013, the claimant applied for disability insurance benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401-434. His application was denied. ALJ
James Bentley held an administrative hearing and found that the claimant was not
disabled in a written opinion dated April 24, 2015 (Tr. 22-35). The Appeals Council
denied review, so the ALJ’s opinion is the final decision of the Commissioner for
purposes of this appeal. See 20 C.F.R. § 404.981.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant had the residual functional capacity (RFC) to perform light work as defined
in 20 C.F.R. § 404.1567(b), i. e., except that he required a sit/stand option defined as a
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temporary change in position from sitting to standing and vice versa with no more than
one change in position every twenty minutes and without leaving the work station so as
not to diminish pace or productions. Additionally, the ALJ determined that the claimant
could only perform occasional climbing of ramps and stairs, stooping, kneeling,
crouching, and crawling; as well as frequent but not constant handling and fingering
bilaterally; and that he was to avoid unprotected heights and dangerous moving
machinery, as well as exposure to concentrated dust, fumes, and poorly ventilated areas.
Finally, the ALJ stated that the claimant could perform simple tasks with routine
supervision, and that he could interact with others on a superficial basis (Tr. 27). The
ALJ concluded that although the claimant could not return to his past relevant work, he
was nevertheless not disabled because there was work he could perform, e. g., document
preparer, touch-up screener, and semi-conductor bonder (Tr. 33-34).
Review
The claimant argues that the ALJ erred: (i) by failing to properly account for his
Veterans Affairs (VA) disability rating, and (ii) that evidence submitted to the Appeals
Council undermines the ALJ’s determination. The Court agrees with the claimant’s
contentions, and the Commissioner’s decision must therefore be reversed and the case
remanded for further proceedings.
The ALJ determined that the claimant had the severe impairments of degenerative
disc disease of the lumbar spine, arthritis of the knee and shoulders, sleep apnea,
Hepatitis C, carpal tunnel syndrome, major depressive disorder, PTSD, and recently
reported episodes of syncope of unknown etiology (Tr. 24).
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The relevant medical

evidence reveals that the claimant received most of his treatment through Department of
Veterans Affairs (VA) facilities, but he was also treated at the Warren Clinic. With
regard to his treatment at the VA, the claimant was given upon discharge a 100% serviceconnected disability rating based on limited motion of the arm (20%), limited extension
of thigh (10%), limited flexion of knee (10%), degenerative arthritis of the spine (10%),
PTSD (30%), hemorrhoids (20%), migraine headaches (30%), sleep apnea syndrome
(50%), tinnitus (10%), limited extension of thigh (10%), limited flexion of knee (10%),
knee condition (10%), hiatal hernia (10%), and sinusitis, maxillary, chronic (10%), as
well as the additional impairments of scars, paralysis of superficial peroneal nerve,
hypertensive vascular disease, residuals of foot injury, deformity of the penis, allergic or
vasomotor rhinitis, and residuals of foot injury that were rated at 0% (Tr. 873-874).
Evidence submitted to the Appeals Council included the VA’s Rating Decision
issued May 21, 2013 (Tr. 933-955). The Rating Decision set forth the percentage of
service-connected disability for each impairment, as well as the reasons for these ratings
and the evidence relied upon in reaching this decision (Tr. 950-951).
In his written opinion, the ALJ summarized the claimant’s hearing testimony, as
well as the medical evidence in the record. As to the claimant’s disability rating, the ALJ
recited the percentage limitations, then gave this opinion diminished weight, stating that a
decision by another agency is not binding on the Social Security Administration (Tr. 3132). He also gave little weight to the claimant’s wife’s Third Party Function Report,
made no analysis of the mental consultative examination in the record, and assigned
diminished weight to the opinions from the state reviewing physicians, stating that “more
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recently submitted evidence tends to suggest claimant is more limited, both physically
and mentally,” without specifying how (Tr. 30-31).
The Court agrees with the claimant that the ALJ’s treatment of the claimant’s
disability rating was deficient. The ALJ simply stated that the finding of disability went
to an issue reserved to the Commissioner but did not explain why it was not persuasive.
Baca v. Department of Health & Human Services, 5 F.3d 476, 480 (10th Cir. 1993)
(“‘Although findings by other agencies are not binding on the Secretary, they are entitled
to weight and must be considered.’”), quoting Fowler v. Califano, 596 F.2d 600, 603 (3d
Cir. 1979). See also Kanelakos v. Astrue, 249 Fed. Appx. 6, 8 (10th Cir. 2007) (“[T]he
ALJ mentioned the VA rating and appropriately stated that the SSA and VA standards
differ. But he completely ‘fail[ed] to discuss the significance of the VA’s disability
evaluation.’”) [unpublished opinion], quoting Grogan v. Barnhart, 399 F.3d 1257, 12621263 (10th Cir. 2005) (“Although another agency’s determination of disability is not
binding on the Social Security Administration, 20 C.F.R. § 416.904, it is evidence that
the ALJ must consider and explain why he did not find it persuasive.”), citing Baca, 5
F.3d at 480. An ALJ is not required to give controlling weight to the disability ratings by
the VA, see, e. g., 20 C.F.R. § 404.1527(d)(1) (“We are responsible for making the
determination or decision about whether you meet the statutory definition of disability . .
. A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not
mean that we will determine that you are disabled.”), but he is required to determine the
proper weight to give such findings by applying the factors in 20 C.F.R. §§ 404.1527,
416.927. This is particularly important where, as here, the claimant largely received
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treatment at the VA, and the VA disability rating considered the claimant’s impairments
both singly and in combination. Furthermore, while the ALJ noted a compensation and
pension exam related to the claimant’s PTSD, he ignored functional evaluations related to
the claimant’s physical impairments (Tr. 287-362), which is important to consider in light
of the ALJ’s rejection of nearly every other opinion in the record and their use as
functioning evaluations from the claimant’s treating facility.
The claimant’s contention that the ALJ failed to properly evaluate all the medical
evidence, including his VA disability rating, is also bolstered by evidence submitted to
the Appeals Council after the hearing, which included additional treatment records and
the actual rating decision from the VA. The Appeals Council was required to consider
this evidence if it is: (i) new, (ii) material, and (iii) “related to the period on or before the
date of the ALJ’s decision.” Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir.
2004), quoting Box v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995). The Appeals Council
did consider this evidence (Tr. 2), and the Court therefore has no difficulty concluding
that it does qualify.
Evidence is new if it “is not duplicative or cumulative.” Threet v. Barnhart, 353
F.3d 1185, 1191 (10th Cir. 2003), quoting Wilkins v. Sec’y, Dep’t of Health & Human
Svcs., 953 F.2d 93, 96 (4th Cir. 1991). These additional records were clearly new
evidence. Second, evidence is material “if there is a reasonable possibility that [it] would
have changed the outcome.” Threet, 353 F.3d at 1191, quoting Wilkins, 953 F.2d at 96.
The evidence must “reasonably [call] into question the disposition of the case.” Threet,
353 F.3d at 1191. See also Lawson v. Chater, 1996 WL 195124, at *2 (10th Cir. April
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23, 1996). In finding the claimant could perform a limited range of light work, the ALJ
relied, at least in part, on his own finding that the claimant’s medical conditions had not
worsened prior to his retirement from the army. But the evidence submitted provides
more insight into the claimant’s disability rating, as well as the progression of his
syncope and other impairments that persisted even after medications. See Frantz v.
Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007) (noting that other source opinions should be
evaluated with the relevant evidence “on key issues such as impairment severity and
functional effects” under the factors in 20 C.F.R. §§ 404.1527, 416.927), quoting Soc.
Sec. Rul. 06-03p, 2006 WL 2329939 at *1. This evidence suggests the claimant has
impairments discounted or completely unaccounted for in his RFC, and it is therefore
clearly material.
Finally, the evidence is chronologically relevant because at least a portion of it
pertains to the time “period on or before the date of the ALJ’s Decision.” Kesner v.
Barnhart, 470 F. Supp. 2d 1315, 1320 (D. Utah 2006), citing 20 C.F.R. § 404.970(b).
The evidence presented by the claimant after the administrative hearing thus does qualify
as new and material evidence under C.F.R. §§ 404.970(b) and 416.1470(b), and the
Appeals Council considered it, so the newly-submitted evidence “becomes part of the
record . . . in evaluating the Commissioner’s denial of benefits under the substantialevidence standard.” Chambers, 389 F.3d at 1142, citing O’Dell v. Shalala, 44 F.3d 855,
859 (10th Cir. 1994). In light of this new evidence, the Court finds that the decision of
the Commissioner is not supported by substantial evidence because the ALJ had no
opportunity to perform a proper analysis of the newly-submitted evidence in accordance
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with the authorities cited above, and the Commissioner’s decision must therefore be
reversed and the case remanded for further proceedings. On remand, the ALJ should reassess the claimant’s RFC in light of the new evidence, and then re-determine the work
he can perform, if any, and ultimately whether he is disabled.
Conclusion
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 22nd day of March, 2017.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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