Holsey v. Social Security Administration

Filing 26

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
GREGORY G. HOLSEY,

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

Case No. CIV-16-42-SPS

OPINION AND ORDER
The claimant Gregory G. Holsey 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 that the Administrative Law Judge
(“ALJ”) erred in determining he 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 his physical or mental impairment or impairments are of such
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.

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
2

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 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 November 7, 1973, and was forty-one years old at the time
of the most recent administrative hearing (Tr. 112, 408). He completed a GED in 1996,
and has previously worked as a delivery route driver, pizza delivery driver, dish washer,
prep cook, and animal caretaker (though not all jobs were performed at the SGA level)
(Tr. 148, 367). The claimant alleges inability to work since August 5, 2007, due to
depression, ADD, social anxiety, and alcoholism (Tr. 144).
Procedural History
On September 29, 2009, the claimant applied for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The application was
denied. ALJ David W. Engel conducted an administrative hearing and determined that
the claimant was not disabled in a written opinion dated September 20, 2011 (Tr. 13-27),
but the Northern District of Oklahoma reversed in Case No. CIV-13-142-GKF-PJC, and
remanded with further instructions (Tr. 462-481). On remand, ALJ Engel conducted a
second administrative hearing and again determined the claimant was not disabled in a
written opinion date August 17, 2015. The Appeals Council again denied review, so ALJ
Engel’s 2015 written opinion represents the Commissioner’s final decision for purposes
of this appeal. See 20 C.F.R. § 404.981.

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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 had the residual functional capacity (RFC) to perform a range of medium,
light, or sedentary exertion work, but that he was unable to work in environments where
he would be exposed to unprotected heights and dangerous moving machinery parts.
Additionally, he found that the claimant could understand, remember, and carry out
simple instructions only in a work-related setting; he could interact with co-workers and
supervisors under routine supervision; and he could interact occasionally with the general
public, whether in person or over the phone (Tr. 260). The ALJ further stated that the
claimant was afflicted with symptoms from a variety of sources to include depression,
learning disorder, and anxiety, which were of sufficient severity to be noticeable to him at
all times, but that the claimant was nevertheless able to remain attentive and responsive
in a work setting, and that he would be able to perform work assignments within the
above-cited limitations (Tr. 360). 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, i. e., hand packager, housekeeper, and document preparer
(Tr. 367-369).
Review
The claimant contends that the ALJ erred by: (i) by failing to properly consider
the medical evidence, including a consultative examiner’s opinion and the state reviewing
physician opinions, and (ii) by ignoring a number of impairments and limitations related
to his mental impairments. Because the ALJ does appear to have ignored probative
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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 organic
mental disorder, anxiety, and depression (Tr. 358). The mental health evidence in the
record indicates that the claimant was treated by Dr. Troy Goldberg, M.D. from part of
2008 to the first half of 2009, who managed his medications at this time (Tr. 220-227). It
appears that Dr. Goldberg assessed the claimant with social anxiety disorder, and
treatment notes reflect that the claimant reported moods ranging from “ok” to “down,”
and that he had low motivation (Tr. Tr. 220-227). He reported being sober during this
time, but having a history of alcohol abuse (Tr. 220-227).
In 2010, the claimant received mental health treatment from Family and
Children’s Services.

On April 2, 2010, he was noted to have fair hygiene, with

untrimmed facial hair, intermittent eye contact, and normal speech (Tr. 265).

He

displayed depressive symptoms, and reported current suicidal ideation (Tr. 265). Upon
completing the assessment, the assessor stated that the claimant was in need of mental
health services, medication management, and case management, and that the prognosis
was “fair to good with client participation” (Tr. 266). The claimant was assessed with
major depressive disorder, recurrent, severe, without mention of psychotic behavior, as
well as alcohol dependence; sedative, hypnotic or anxiolytic abuse, unspecified; and
ADHD (Tr. 267). He was noted to have severe economic problems and severe problems
relating to social environment, along with moderate problems with obtaining health care
services, education/occupation, and with primary support group (Tr. 268).
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Records from the claimant’s childhood indicate that, inter alia, the claimant
struggled from early childhood with attention, cooperation, and self control, even though
he was also noted to be bright and tested with an average IQ (Tr. 294-318). Additionally,
he was placed on an IEP in 1981 for a behavioral disorder (Tr. 306-309). In 1985, the
claimant was evaluated and found to need two interventions: (i) therapy to deal with his
feelings of self worth, and (ii) a change of school to provide a positive but structured
environment (Tr. 316). The claimant was in fact placed in a special school to address and
accommodate his needs (Tr. 317-318). Following his placement in a more structured
school environment, the claimant was also referred for a stimulant medication, which was
prescribed following a finding that the claimant could only function with a combination
of stimulant medication and a highly structured educational environment (Tr. 320).
On February 17, 2010, Dennis A. Rawlings, Ph.D. conducted a mental status
examination of the claimant (Tr. 233).

Dr. Rawlings noted the claimant’s hygiene

appeared good, but that he had an almost haunted quality to his appearance, and that his
eye contact was mostly avoidant and downcast, although he had good cooperation
(Tr. 233). Upon taking a history and conducting some testing, Dr. Rawlings observed
that while the claimant did not meet the criteria for PTSD, he looked “like he may have
experienced very severe early developmental trauma affecting his ability to function”
(Tr. 235). He indicated the claimant’s thought processes were normal, that the claimant
had social phobia with onset in early grade school years that was still a problem, that he
had most of the symptoms of Generalized Anxiety Disorder, and that suicidal ideation
was reported to occur on a regular basis (Tr. 237-238).
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The claimant’s affective

expression was “almost completely flattened,” and the mood was described as “irritable
and anxious with profound feelings of helplessness, hopelessness, worthlessness, and
cynicism” (Tr. 238). He assessed the claimant with social phobia with panic attacks,
generalized anxiety disorder, alcohol dependence in remission, and active cannabis
dependence, as well as borderline personality disorder with avoidance personality
features and dependent personality traits (Tr. 238-239). Dr. Rawlings gave the claimant a
fair to guarded prognosis with treatment and sobriety (Tr. 239).
On March 24, 2010, state reviewing physician Don B. Johnson, Ph.D., reviewed
the claimant’s records and determined that he had mild restriction of activities of daily
living, and moderate difficulties in maintaining social functioning and in maintaining
concentration, persistence, and pace, but that there was insufficient evidence regarding
episodes of decompensation (Tr. 252). He summarized much of the medical evidence,
including Dr. Rawlings’s assessment, but provided no commentary or analysis (Tr. 254).
He then completed a mental RFC assessment in which he found the claimant markedly
limited in the three typical categories of understanding and remembering detailed
instructions, carrying out detailed instructions, and interacting appropriately with the
general public (Tr. 256-257). Dr. Johnson then stated that the claimant could perform
simple tasks with routine supervision, could relate to supervisors and peers on a
superficial work basis, could not relate to the general public, and could adapt to a work
situation (Tr. 258).

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On July 27, 2010, Dorothy Millican-Wynn, Ph.D., also reviewed the record, and
made nearly identical findings (Tr. 284, 288-290). After summarizing the evidence, she
did provide an “analysis,” stating in its entirety, “Simple work, no public” (Tr. 286).
In his written opinion, the ALJ summarized the claimant’s hearing testimony as
well as much of the medical evidence in the record. As to Dr. Rawlings’s opinion, the
ALJ summarized his mental status examination report in some detail, underlining every
reference to substance use and/or abuse in the ALJ’s opinion, and reciting Dr. Rawlings’s
recommendations (Tr. 364-365). The ALJ made no analysis of this opinion. (Tr. 365367).

He then turned to the reviewing opinions provided by Dr. Johnson and Dr.

Millican-Wynn (Tr. 365-366). He assigned Dr. Johnson’s opinion little weight because
the ALJ found that the evidence indicated the claimant could interact with the general
public on an occasional basis such that a limitation of “no interaction” was inconsistent
with the record (Tr. 365).

He then similarly summarized Dr. Millican-Wynn’s

assessment, and found that the limitation to no interaction with the public was
unwarranted for the same reasons as set forth regarding Dr. Johnson’s opinion (Tr. 365366).

The ALJ then noted the claimant’s childhood records regarding cooperation,

attention, and concentration, but found there was no evidence for antisocial behaviors or
a significant personality disorder, and further decided that the claimant’s primary
problem was motivation because he did not appear motivated to work or obtain treatment
or a medication regimen (Tr. 366-367). He found that the claimant’s part-time work
history indicated that he was “capable of performing work activity when he sets his mind
to it” (Tr. 367). The ALJ also noted nearly every reference in the record to the claimant’s
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history of substance abuse, but made no findings as to how that affected the claimant’s
RFC.
“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. 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. Rawlings’s

consultative examination, but failed to conduct the proper analysis and did not specify
how the exam did or did not support the assigned RFC. This was important to do because
Dr. Rawlings specifically pointed out concerns related to the claimant’s ability to perform
in a work setting (which tended to support, at least, the findings related to contact with
the general public). See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“An ALJ
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is not entitled to pick and choose through an uncontradicted medical opinion, taking only
the parts that are favorable to a finding of nondisability.”). Nor did the ALJ provide any
such explanation for why he ignored this opinion. Instead, he adopted the reviewing
physician’s reports (with the exception of the finding related to contact with the general
public), which ignored the most concerning part of Dr. Rawlings’s assessment related to
the likelihood of significant developmental trauma affecting his overall functioning and
distorting his personality, a direct contradiction to the ALJ’s assumption that the claimant
merely lacked motivation (Tr. 238, 367).
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.
DATED this 22nd day of September, 2017.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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