Bolding v. Social Security Administration

Filing 18

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
WILENE DENISE BOLDING,

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

Case No. CIV-16-29-SPS

OPINION AND ORDER
The claimant Wilene Denise Bolding 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 that the

Administrative Law Judge (“ALJ”) erred in determining she was not disabled. For the
reasons discussed below, the Commissioner’s decision is hereby REVERSED and
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 h[er] physical or mental impairment or impairments are of
1

On January 23, 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.

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
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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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
The claimant was born December 14, 1966, and was forty-six years old at the time
of the administrative hearing (Tr. 45, 132). She completed twelfth grade, and has worked
as a beautician and companion (Tr. 63, 179). The claimant alleges inability to work since
June 1, 2005, due to bipolar disorder, depression, anxiety, high blood pressure, and
arthritis (Tr. 178).
Procedural History
On April 26, 2012, the claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental benefits
under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. The applications were
denied. ALJ J. Frederick Gatzke conducted an administrative hearing and determined
that the claimant was not disabled in a written opinion dated March 20, 2014 (Tr. 24-36).
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.
Decision of the Administrative Law Judge
The ALJ made his decision at steps four and 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) and 416.967(b), except that she could not climb
ropes, ladders, or scaffolds. Additionally, he determined that she retained the ability to
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perform detailed, non-complex tasks, but should have only incidental contact with the
public (Tr. 29). The ALJ then concluded that the claimant was not disabled because she
had the RFC to perform her past work as a companion. Alternatively, he found that the
claimant was not disabled because she could perform the jobs of garment bagger and
price marker (Tr. 34-35).
Review
The claimant contends that the ALJ erred: (i) by failing to properly weigh the
findings of consultative examiner, Dr. Shalom Palacio-Holmon, and (ii) by failing to
properly evaluate her subjective symptoms.

Because the ALJ does appear to have

ignored probative evidence regarding the claimant’s impairments, the decision of the
Commissioner must be reversed.
The ALJ determined that the claimant had the severe impairments of fibromyalgia,
hypertension, obesity, bipolar disorder, generalized anxiety disorder, and major
depressive disorder (Tr. 26).

The relevant medical evidence demonstrates that the

claimant received regular medication management (largely only pharmacological
management) at Mental Health Services Durant (Tr. 281-343). Treatment notes reflect
the claimant sometimes had difficulty sleeping, but that she also took a trip to California
in 2011 to stay with a friend for five days (Tr. 287). In April 2012, the claimant reported
continued stressors and the notes indicated that the claimant’s mood was fair and she was
“really unchanged” (Tr. 281). She was assessed with bipolar I disorder, most recent
episode mixed-severe, as well as generalized anxiety disorder (Tr. 283).

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The claimant also received mental health treatment at Mental Health Services of
Southern Oklahoma in Ardmore, Oklahoma, and treatment records reflect that in July
2012, the claimant’s symptoms were moderate to severe (Tr. 401).

She reported

continued stress and fleeting thoughts of suicide, but no plan (Tr. 407).

She was

considered stable on her medications (Tr. 407).
On May 3, 2012, Dr. Palacio-Holmon, Psy.D., conducted a mental
status/diagnostic examination of the claimant (Tr. 347). Upon exam, he noted that her
communication skills were fair and that she appeared restless during the exam, but that
her grooming was fair, her hygiene was good, and she had normal thought processes (Tr.
348). He stated that she appeared to be depressed, but that she was alert and oriented,
and appeared to be of average intelligence (Tr. 349). He found that her concentration
was mildly impaired, but that her insight was fair and her impulse control was poor (Tr.
349). He assessed her with clinical depression, bipolar II (Tr. 349). In his “Prognosis
and Recommendations,” Dr. Palacio-Holmon stated that the claimant’s appearance and
behavior were consistent with her reported symptoms, but that her prognosis was poor, as
was her overall adjustment to stress, including likelihood of decompensation with
continued stress (Tr. 350). He recommended that she continue counseling, but stated that
she appeared to have psychological, cognitive, or emotional deficits that would
significantly interfere with her ability to perform occupationally (Tr. 350). Continuing,
he stated that she did not have the ability to understand, remember, and carry out both
simple and complex instructions within a work setting, nor did she have the ability to
adapt, persist, and keep pace with a work setting, or have the social ability to interact
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with the public, co-workers, and supervisors (Tr. 350). He believed she would be a good
candidate for vocational rehabilitation (Tr. 350).
On June 23, 2012, Dr. William Cooper, D.O., conducted a physical examination of
the claimant. He noted, inter alia, that the claimant had pain with range of motion testing
of the cervical and lumbar spine, thoracic spine, and both shoulders, and that her gait was
slower than normal but safe and stable (Tr. 363, 368). He further noted that she had
18/18 positive tender points for fibromyalgia, and that she had tense musculature in the
upper back, lower back, and neck (Tr. 369). He assessed her with depression, anxiety,
hypertension, and chronic pain secondary to fibromyalgia (Tr. 364).
A state reviewing physician found that, with regard to mental impairments, the
claimant was moderately limited in the typical three areas of: ability to understand and
remember detailed instructions, carry out detailed instructions, and interact appropriately
with the general public (Tr. 384-385). She concluded that the claimant could perform
simple and some complex tasks, relate to others on a superficial work basis, and adapt to
a work situation (Tr. 386). As to her physical impairments, a state reviewing physician
found that the claimant could perform medium work with no additional limitations (Tr.
390-396).
In his written opinion, the ALJ summarized the claimant’s hearing testimony as
well as the medical evidence in the record. In typical boilerplate language, he found the
claimant not credible. He noted that she repeatedly complained of joint pain and fatigue,
but found that records from March 2009 and April 2010 and 2011 were “essentially
normal,” when she presented to a clinic for treatment of sinusitis and cough, and a
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medication refill (Tr. 31, 269-278). The ALJ recited Dr. Cooper’s findings, but provided
no analysis of his opinion (Tr. 31). He gave significant weight to the opinions of the state
reviewing physicians who found the claimant could perform medium work, but gave the
claimant “the benefit of the doubt” and reduced her RFC to light work (Tr. 33). As to her
mental impairments, the ALJ gave significant weight to the state reviewing physicians
because their opinions “reflect a thorough review of the record and are supportable” (Tr.
33). He then assigned little weight to Dr. Palacio-Holmon’s opinion, finding it not
consistent with his own evaluation because Dr. Palacio-Holmon found the claimant was
of average intelligence, her concentration was only mildly impaired, and he relied
“heavily” on the claimant’s subjective reports (Tr. 33). He thus found the claimant could
perform light work with the above-mentioned restrictions (Tr. 34).
The claimant asserts that the ALJ erred in his analysis with regard to Dr. PalacioHolmon’s consultative exam, and the Court agrees and reverses on this basis. As part of
this discussion, however, the Court points out the ALJ’s additional error with regard to
his lack of analysis of Dr. Cooper’s opinion (which also lends support to the argument for
reversal), but notes that the basis for reversal here lies in the ALJ’s error with regard to
Dr. Palacio-Holmon opinion. “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 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.
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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, 1300-1301 (10th Cir. 2003), citing
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001).
Here, the ALJ provided a summary of Dr. Palacio-Holmon’s consultative
examination, but failed to conduct the proper analysis. First, the ALJ’s opinion failed to
take into account that “[t]he practice of psychology is necessarily dependent, at least in
part, on a patient’s subjective statements.” Thomas v. Barnhart, 147 Fed. Appx. 755, 759
(10th Cir. 2005). See also Wise v. Barnhart, 129 Fed. Appx. 443, 447 (10th Cir. 2005)
(“[A] psychological opinion does not need to be based on ‘tests;’ those findings can be
based on ‘observed signs and symptoms.’ Dr. Houston’s observations of Ms. Wise do
constitute specific medical findings.”), citing Robinson v. Barnhart, 366 F.3d 1078, 1083
(10th Cir. 2004), citing 20 C.F.R. Subpt. P, app. 1 § 12.00(B).

Additionally, the

claimant’s average intelligence and “only mildly impaired” concentration are not reasons
to discount the limitations found by Dr. Palacio-Holmon, because he specifically noted
concerns about her ability to perform occupationally with regard to adapting, persisting,
keeping pace, and interacting with others. See Haga v. Astrue, 482 F.3d 1205, 1208
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(10th Cir. 2007) (“An ALJ is not entitled to pick and choose through an uncontradicted
medical opinion, taking only the parts that are favorable to a finding of nondisability.”).
This error becomes of additional concern when combined with the ALJ’s error in failing
to assess Dr. Cooper’s opinion at all, which also raises occupational concerns in light of
her 18/18 positive fibromyalgia trigger points. Instead, the ALJ chose to rely on the nonexamining opinion from the state reviewing physician.
Furthermore, the Court also finds that the ALJ erred in formulating the claimant’s
RFC. “The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e. g., laboratory
findings) and nonmedical evidence (e. g., daily activities, observations).” Soc. Sec. Rul.
96-8p, 1996 WL 374184, at *7 (July 2, 1996). See also Wells v. Colvin, 727 F.3d 1061,
1065 (10th Cir. 2013), quoting Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *7. “When the
ALJ has failed to comply with SSR 96-8p because he has not linked his RFC
determination with specific evidence in the record, the court cannot adequately assess
whether relevant evidence supports the ALJ’s RFC determination.”

Jagodzinski v.

Colvin, 2013 WL 4849101, at *2 (D. Kan. Sept. 11, 2013), citing Brown v. Commissioner
of the Social Security Administration, 245 F. Supp. 2d 1175, 1187 (D. Kan. 2003). Here,
the ALJ has failed to connect the claimant’s RFC to the medical evidence in the record,
including, inter alia, when he failed to specify how the limitation to light work properly
accounted for her fibromyalgia, and how the nonexertional limitations specifically
account for her bipolar disorder, generalized anxiety disorder, and major depressive
disorder.
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Finally, the claimant contends that the ALJ failed to properly evaluate the
claimant’s subjective symptoms under the proper standard. At the time of the ALJ’s
decision, a credibility determination was governed by Soc. Sec. Rul. 96-7p. See, e .g.,
Hardman v. Barnhart, 362 F.3d 676, 678 (10th Cir. 2004), quoting Soc. Sec. Rul. 96-7p,
1996 WL 374186 (July 2, 1996). But the Commissioner issued a ruling on March 16,
2016, that eliminated the term “credibility” and provided new guidance for evaluating the
intensity, persistence, and limiting effects of a claimant’s symptoms. Soc. Sec. Rul. 163p, 2016 WL 1119029 (Mar. 16, 2016). “Generally, if an agency makes a policy change
during the pendency of a claimant’s appeal, the reviewing court should remand for the
agency to determine whether the new policy affects its prior decision.” Frantz v. Astrue,
509 F.3d 1299, 1302 (10th Cir. 2007), quoting Sloan v. Astrue, 499 F.3d 883, 889 (8th
Cir. 2007).
Because the ALJ failed to properly evaluate the evidence available in the record,
the decision of the Commissioner must be reversed and the case remanded to the ALJ for
a proper analysis in accordance with the appropriate standards. If such analysis results in
adjustment to the claimant’s RFC, the ALJ should re-determine what work, if any, the
claimant can perform and ultimately whether she is disabled.
Conclusion
The Court hereby FINDS that correct legal standards were not applied by the ALJ,
and the Commissioner’s decision is therefore not supported by substantial evidence. The
decision of the Commissioner is accordingly REVERSED and the case is REMANDED
for further proceedings consistent herewith.
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DATED this 22nd day of September, 2017.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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