Rundel v. Social Security Administration
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
CHRISTOPHER M. RUNDEL,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-15-484-KEW
OPINION AND ORDER
Plaintiff Christopher M. Rundel (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.
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
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. . .”
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).
This Court’s review is limited to
first, whether the decision was supported by
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).
standards were applied.
Hawkins v. Chater, 113 F.3d 1162, 1164
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
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
The court may not re-weigh the evidence nor substitute
its discretion for that of the agency.
Casias v. Secretary of
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.”
Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also, Casias, 933 F.2d
Claimant was born on November 19, 1980 and was 33 years old at
the time of the ALJ’s decision.
Claimant obtained his GED.
Claimant has no past relevant work.
Claimant alleges an inability
to work beginning February 1, 2010 due to limitations resulting
from PTSD, severe fear and anxiety, and other mental problems.
On June 4, 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.
applications were denied initially and upon reconsideration.
February 27, 2014, an administrative hearing was held by video
Claimant appearing in Poteau, Oklahoma and the ALJ presiding from
McAlester, Oklahoma. He issued an unfavorable decision on June 13,
The Appeals Council denied review of the ALJ’s decision on
October 19, 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
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) reaching an
RFC which is not supported by substantial evidence; (2) finding at
step five that Claimant could perform other jobs; (3) performing an
erroneous credibility assessment; and (4) failing to fully develop
Claimant’s mental limitations.
RFC Evaluation and Duty to Develop the Record
In his decision, the ALJ found Claimant suffered from the
severe impairments of anxiety disorder with agoraphobia, depressive
disorder, schizoaffective disorder, personality disorder, and a
history of polysubstance abuse.
The ALJ determined
Claimant retained the RFC to perform medium work. In so doing, the
ALJ found that Claimant could lift/carry 50 pounds occasionally and
25 pounds frequently, stand or walk for six hours in an eight hour
workday, and sit for six hours in an eight hour workday.
could push/pull within his lifting and carrying weight limitations.
The ALJ determined Claimant could not climb ladders or scaffolds
and should not work around unprotected heights or moving mechanical
Claimant could perform simple tasks and could make simple
work-related decisions. Claimant could have occasional interaction
with co-workers or supervisors, but he should have no interaction
with the general public.
The ALJ estimated Claimant would be off
task for up to five percent of the workday.
After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of industrial
cleaner, laundry worker, and hand packager, all of which the ALJ
determined existed in sufficient numbers in both the regional and
As a result, the ALJ determined
Claimant was not under a disability from February 1, 2010 through
the date of the decision.
Claimant contends that the ALJ erred in his RFC assessment.
Claimant first asserts that his mental impairments would preclude
In particular, Claimant states that the
report of Dr. Robert Spray contradicts the ALJ’s RFC conclusions.
On April 14, 2014.
Dr. Spray found Claimant’s limitations were
“extreme” in the areas of understanding and remembering complex
instructions, carrying out complex instructions, and the ability to
instructions, carrying out simple instructions, the ability to make
appropriately with the public, supervisors, and co-workers, and
responding appropriately to usual work situations and to changes in
memory” and “confused thinking.”
He stated that his
findings were supported by Claimant’s “violent ideation and/or fear
of same” and “social avoidance.”
The affect upon Claimant’s work
attendance would also be “extreme.”
The ALJ gave Dr. Spray’s opinion “partial weight.”
portion of the opinion regarding social functioning was given
“significant weight” but the remainder of the opinion was give
“little weight” as not supported by the majority of the objective
In particular, the ALJ indicated Dr. Spray’s
findings were inconsistent with the findings of mental health
specialists - particularly Terry Efird, Ph.D. “who conducted a
A review of Dr. Spray’s report
gives every indication that Dr. Spray also conducted a thorough
During his examination of Claimant, Dr. Efird found his mood
to be anxious and agitated, his affect somewhat intense and
primarily logical, relevant, and goal-directed.
oriented as to person, place, and time.
He was alert and
Claimant’s answers to
questioning indicated he was probably around the low average range
of intellectual functioning.
Dr. Efird diagnosed Claimant with
anxiety disorder, NOS, depressive disorder, NOS, alcohol abuse vs.
(borderline traits). He estimated Claimant’s GAF at between 50 and
Dr. Efird found Claimant could perform most activities of
daily living adequately.
He communicated and interacted in a
“reasonably socially adequate, yet somewhat anxious manner.”
demonstrated the capacity to perform basic cognitive tasks required
for basic work-like activities. He completed most tasks during the
evaluation. Claimant appeared able to track and respond adequately
for the evaluation.
He also completed most tasks in an adequate
Dr. Efird noted no malingering.
Williams, a licensed professional counselor.
Mr. Williams found
Claimant suffered from a “very serious limitation” in managing
money, social interaction, coping skills, and productivity and
He also noted a “serious limitation” in managing time and
A review of the records by Dr. Kelly Abesie indicated only a
moderate limitation in the ability to sustain an ordinary routine
without special supervision, ability to complete a normal workday
and workweek, ability to respond appropriately to changes in the
work setting, and ability to set realistic goals or make plans
independently of others.
While this Court agrees with Defendant that the ALJ did not
ignore Dr. Spray’s findings as Claimant alleges, a problem remains
with comparing the findings of the examining professionals - in
particular Dr. Spray and Dr. Efird.
Dr. Spray made specific
findings on functional deficiencies while Dr. Efird made more
generalized findings in cognitive and social functioning.
makes comparing these two professionals’ findings almost impossible
under the present circumstance. Additionally, the ALJ’s acceptance
of Dr. Spray’s findings on social functioning and rejection of the
remainder of the report appears to smack of picking and choosing
among a report to arrive at a desired disability result which is
Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
The appearance of the violation of this rule is exacerbated by the
interaction by Dr. Efird.
Claimant contends the ALJ should have ordered a further
consultative psychological examination to resolve the apparent
conflict in the record between these two professionals. Generally,
the burden to prove disability in a social security case is on the
claimant, and to meet this burden, the claimant must furnish
medical and other evidence of the existence of the disability.
Branam v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004) citing
Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
A social security
disability hearing is nonadversarial, however, and the ALJ bears
responsibility for ensuring that “an adequate record is developed
during the disability hearing consistent with the issues raised.”
Id. 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
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. §
Normally, a consultative examination is required if
(1) The additional evidence needed is not contained in
the records of your medical sources;
(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
(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 evident and significant conflict in the psychological
professional and possible recontact of the sources that did examine
On remand, the ALJ shall develop the record further by
obtaining an additional consultative examination.
assessment and modify his findings as required.
Step Five Evaluation
Claimant also contends the ALJ’s hypothetical questioning of
the vocational expert was flawed since the questions did not
include an accurate RFC.
Since the ALJ will be re-examining his
consultative examination, he should also reassess his hypothetical
questioning to accommodate any alterations to the RFC that he might
Claimant also challenges the adequacy of the ALJ’s credibility
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 apply the new
testimony regarding “subjective symptoms”.
substantial evidence and the correct legal standards were not
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 29th day of March, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?