Rounds v. Social Security Administration
Filing
19
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
MELISSA F. ROUNDS,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-16-026-KEW
OPINION AND ORDER
Plaintiff Melissa F. Rounds (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.
discussed
below,
it
is
the
finding
of
this
For the reasons
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 June 25, 1979 and was 36 years old at the
time of the ALJ’s decision.
through the tenth grade.
daycare center aide.
beginning
October
2,
Claimant completed he education
Claimant has worked in the past as a
Claimant alleges an inability to work
2007
due
to
limitations
affective mood disorder (bipolar) and seizures.
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resulting
from
Procedural History
On
March
23,
2012,
Claimant
protectively
filed
for
supplemental security income pursuant to Title XVI (42 U.S.C. §
1381, et seq.) of the Social Security Act.
Claimant’s application
was denied initially and upon reconsideration.
On March 2, 2015,
an administrative hearing was held before Administrative Law Judge
(“ALJ”)
B.D.
Crutchfield
in
Tulsa,
Oklahoma.
He
issued
an
unfavorable decision on August 8, 2015. The Appeals Council denied
review of the ALJ’s decision on December 24, 2015.
the
decision
of
the
ALJ
represents
the
decision for purposes of further appeal.
As a result,
Commissioner’s
final
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, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform a full range of work at all
exertional levels.
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
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the
record
by
obtaining
further
consultative
evaluations
of
Claimant’s mental limitations.
RFC Evaluation and Duty to Develop the Record
In his decision, the ALJ found Claimant suffered from the
severe impairment of affective mood disorder.
(Tr. 12).
The ALJ
determined Claimant retained the RFC to perform a full range of
work at all exertional levels with the non-exertional limitations
of
performing
simple
tasks
with
routine
supervision;
her
psychiatric symptoms have a moderate impact on her functioning but
with mediation compliance they should not interrupt her ability to
work; she could relate to supervisors and peer on a superficial
work basis; she could not relate to the general public; she may
have moderate difficulty with receiving constructive feedback from
supervisors; she may have occasional distracting behavior at the
workplace due to her symptoms; and she could adapt to a work
situation.
(Tr. 14).
After consulting with a vocational expert, the ALJ concluded
that
Claimant
could
perform
the
representative
jobs
of
hand
packager, laundry worker, and dishwasher, all of which the ALJ
determined existed in sufficient numbers in both the regional and
national economies.
(Tr. 20).
As a result, the ALJ determined
Claimant was not under a disability since March 23, 2012, the date
the application was filed.
Id.
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Claimant contends that the ALJ erred in his RFC assessment.
Claimant first asserts that his mental impairments would preclude
sustained employment.
In particular, Claimant states that the
report of Dr. Robert Spray contradicts the ALJ’s RFC conclusions.
On September 6, 2012, Dr. Spray conducted a mental diagnostic
evaluation
of
Claimant.
Among
his
findings
was
a
moderate
impairment of Claimant’s concentration and attention.
He also
found Claimant persisted well during the exam, but her ability to
persist with job-like tasks may wax and wane depending upon her
mood.
Dr. Spray also noted that variable motivation due to her
mood disorder and intrusion of thoughts and flashbacks from trauma
could interfere with her ability to complete work-like tasks in a
timely manner.
malingering.
He noted no indications of symptom exaggeration or
(Tr. 377).
This Court cannot identify in the ALJ’s decision where Dr.
Spray’s opinion was weighed and considered.
The ALJ must evaluate
every medical opinion in the record, and he will consider several
factors in deciding the weight that should be given to any medical
opinion.
Salazar v. Barnhart, 468 F.3d 615, 625-626 (10th Cir.
2006)(citing
20
C.F.R.
§
416.927(d)).
In
evaluating
medical
opinions, the ALJ must accord each opinion the proper weight on the
basis
of:
(1)
the
examining
relationship;
(2)
the
treatment
relationship; (3) the length of the treatment relationship and the
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frequency of examinations; (4) the nature and extent of the
treatment relationship; (5) how well the opinion is supported; (6)
its consistency with other evidence; and (7) whether the opinion is
from a specialist.
Id. at 626.
See also Watkins v. Barnhart, 350
F.3d 1297, 1301 (10th Cir. 2003); 20 C.F.R. §§ 404.1527(d),
416.927(d). The ALJ must give good reasons for the weight assigned
to a medical opinion and set forth specific, legitimate reasons for
rejecting an opinion of an acceptable treating source.
350 F.3d at 1300-1301.
Watkins,
While the ALJ evaluated several other
opinions which were somewhat consistent with Dr. Spray’s opinion,
he did not specifically weigh Dr. Spray’s opinion.
On remand, the
ALJ shall consider this professional’s opinion and its effect upon
the RFC.
Moreover, this Court agrees with Claimant’s assessment of the
amorphous and vague terms used by the ALJ in setting out the nonexertional limitations in the RFC.
Terms such as “occasional
distracting behavior” and the use of the term “moderate difficulty”
and “moderate impact” do little to define the restrictions upon
Claimant’s ability to engage in basic work activities.
On remand,
the ALJ shall strive to define these terms in order to refine the
job base which Claimant can either perform or not.
Claimant contends the ALJ should have ordered a further
consultative
psychological
examination
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in
order
to
develop
Claimant’s possible conversion disorder, which is referenced in the
record on two occasions as well as Claimant’s mental condition.
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
disability.
and
other
evidence
of
the
existence
of
the
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).
claimant is represented by counsel.
This duty exists even when a
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
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does not contain such as clinical findings, laboratory tests, a
diagnosis or prognosis necessary for decision.”
416.919a(2).
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
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).
This Court does not perceive that any of these conditions
exist such that an additional consultative examiner should be
directed.
No error is attributed to the ALJ’s conduct on the
development of the record.
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 evaluating Dr.
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Spray’s opinion and further defining his RFC, he should also
reassess
his
hypothetical
questioning
to
accommodate
any
alterations to the RFC that he might make.
Credibility Determination
Claimant also challenges the adequacy of the ALJ’s credibility
findings.
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).
guidelines
under
Soc.
On remand, the ALJ shall apply the new
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
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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