Cragg v. Social Security Administration
Filing
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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
ROBERT E. CRAGG, JR.,
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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of the Social )
Security Administration, 1
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Defendant.
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Case No. CIV-16-48-SPS
OPINION AND ORDER
The claimant Robert E. Cragg, Jr., requests judicial review of a denial of benefits
by the Commissioner of the Social Security Administration pursuant to 42 U.S.C.
§ 405(g).
The claimant appeals the Commissioner’s decision and asserts that the
Administrative Law Judge (“ALJ”) erred in determining he was not disabled.
As
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 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 on August 18, 1983, and was thirty years old at the time of
the administrative hearing (Tr. 62). He completed high school, and has worked as a fast
food worker, fast food cook, tractor driver, trust worker, and farm worker (Tr. 53, 164).
The claimant alleges he has been unable to work since May 16, 2009, due to bipolar
disorder and depression (Tr. 45, 163).
Procedural History
The claimant applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, on March 28, 2012 and for supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85, on
April 23, 2012. His applications were denied. ALJ Richard J. Kallsnick conducted an
administrative hearing and found that the claimant was not disabled in a written opinion
dated April 9, 2014 (Tr. 45-54). The Appeals Council denied review, so the ALJ’s
written opinion is the final decision of the Commissioner for purposes of this appeal. See
20 C.F.R. §§ 404.981, 416.1481.
Decision of the Administrative Law Judge
The ALJ made his final decision at step five of the sequential evaluation. He
found that the claimant retained the residual functional capacity (“RFC”) to perform a
full range of work at all exertional levels, but with the nonexertional limitations of
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performing simple tasks with routine supervision, relating to supervisors and peers on a
superficial work basis, and that he can adapt to a work situation, but cannot relate to the
general public (Tr. 49). The ALJ then 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., industrial cleaner, light hand packer, sorter, and sedentary hand
packer (Tr. 53-54).
Review
The claimant contends that the ALJ erred by: (i) failing to properly assess his
RFC, and (ii) failing to properly account for the opinion of one of his treatment providers.
The Court agrees with both of these contentions, and the Commissioner’s decision should
therefore be reversed for further proceedings.
The ALJ determined that the claimant had the severe impairments of bipolar
disorder and panic disorder (Tr. 48).
The relevant medical evidence in the record
indicates that the claimant has been treated for a number of years for bipolar disorder and
insomnia since prior to the alleged onset date (Tr. 230-295). Treatment notes indicate the
claimant frequently reported medications not working, or there was a need to
adjust/strengthen doses (Tr. 230-295)
Additionally, the claimant reported an
improvement on suicidal thoughts with medication, but continued need for additional
sleeping aids (Tr. 247, 241).
Treatment notes from Dr. Jeannie McCance, M.D., a psychiatrist, reflect that she
managed his mental health medications and assessed him with bipolar disorder and
AADD (Tr. 326, 355-360).
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On June 9, 2012, Dr. Beth Jeffries conducted a mental status examination of the
claimant. Upon examination, she assessed him with bipolar disorder by history and panic
disorder without agoraphobia (Tr. 329). In her “Prognosis and Recommendation,” Dr.
Jeffries stated that the claimant’s appearance and behaviors were consistent with his
symptoms, and that she estimated his intelligence in the low range but well above an IQ
of 80, noting that he could not interpret common proverbs or demonstrate concrete
thinking, but that his judgment and insight appeared to be intact (Tr. 329). She noted
there was no indication he had trouble concentrating, but that attention loss might be
attributed to panic and bipolar disorder (Tr. 330).
counseling and medication compliance (Tr. 330).
She recommended he continue
Finally, she found that he could
manage his concentration under low stress conditions, and could manage pace and
flexibility under structured and low stress conditions, including the ability to understand
both simple and complex instructions in low stress settings, but that he might have some
difficulty implementing information on a consistent basis. She also recommended that he
would benefit from an overseer of his funds (Tr. 330).
On December 1, 2012, Dr. Jeffries assessed the claimant a second time (Tr. 362).
Following this exam, she assessed him with bipolar disorder with psychotic features
(Tr. 364). In the “Prognosis and Recommendations,” Dr. Jeffries stated that she believed
the claimant would have difficulty managing work in a fast-paced environment and in
interacting socially with others on a consistent basis (Tr. 365). She state that she thought
he would be capable of managing working with very low stress and at a very slow pace
(Tr. 365). In support, she stated that she thought there was an impairment in judgment
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and insight, as well as an impairment in his ability to balance his moods, which might
make it difficult for him to interact with others appropriately on a consistent basis
(Tr. 365). She again stated she had concerns about mismanagement of money and that he
would benefit from an overseer of his funds (Tr. 365).
On July 18, 2012, a state reviewing physician found that the claimant had mild
restrictions of activities of daily living, and moderate difficulties in maintaining social
functioning and in maintaining concentration, persistence, or pace (Tr. 342). She then
completed the mental RFC form, indicating that the claimant was markedly limited in the
three typical areas of understanding and remembering detailed instructions, carrying out
detailed instructions, and interacting appropriately with the general public (Tr. 346-347).
She then concluded that the claimant could perform simple tasks with routine
supervision, relate to supervisors and peers on a superficial work basis, and could adapt
to a work situation, but could not relate to the general public (Tr. 348).
On January 31, 2014, Dr. Charles Lester completed a mental Medical Source
Statement (MSS), indicating that the claimant had marked limitations in the ability to
understand and remember very short and simple directions, understand and remember
detailed instructions, carry out detailed instructions, maintain attention and concentration
for extended periods, work in coordination with or proximity to others without being
distracted by them, complete a normal workday and workweek without interruptions
from psychologically-based symptoms, and to respond appropriately to changes in the
work setting (Tr. 405-406). He also indicated the claimant had moderate limitations in
ten other areas (Tr. 405-406).
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On February 25, 2014, it appears that Dr. Lester completed another Mental MSS,
in which he indicated that the claimant had marked limitations in the ability to complete a
workday and workweek, in addition to seven moderate limitations and eleven mild
limitations (Tr. 410-411).
Plaintiff’s counsel apparently submitted treatment records from Dr. Lester to the
ALJ, but they were not made part of the official record until the Appeals Council
reviewed the record. The assessment reflects that on August 20, 2013, Dr. Lester had
diagnosed the claimant with major depression rule out bipolar disorder, ADHD, and
panic disorder (Tr. 13). Dr. Lester’s treatment notes indicate that the claimant’s anxiety
was only sometimes under control, but that he struggled with anger and focus as well
(Tr. 9-12). Therapist Alicia Dickens, who worked at the same clinic, noted on February
5, 2014, that the claimant’s diagnoses were bipolar I disorder, MRE manic, moderate, as
well as ADHD, combined type (Tr. 15).
In his written opinion, the ALJ summarized the claimant’s hearing testimony, as
well as much of the medical evidence in the record. The ALJ gave great weight to both
of Dr. Jeffries’ consultative examination assessments (Tr. 50-51). Likewise, he accorded
significant weight to the state agency reviewing physician opinions because “they are
deemed experts and highly knowledgeable in the area of disability” (Tr. 52-53). As to
Dr. Lester’s assessments, the ALJ noted that one assessment indicated Dr. Lester was an
LPC while one indicated he was an M.D., but found that there was no evidence Dr. Lester
had treated the claimant (despite the claimant’s own testimony at the administrative
hearing to that effect (Tr. 64)), and thus gave his opinion no weight (Tr. 52).
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The claimant first argues that the RFC assigned by the ALJ did not account for his
limitations in concentration, persistence, and pace, nor did it account for his need for a
low-stress environment. The Court agrees. Although the ALJ found that the claimant’s
bipolar disorder and panic disorder were severe impairments, he failed to connect these
impairments to his RFC assessment (much less consider all his impairments in
combination). See Timmons v. Barnhart, 118 Fed. Appx. 349, 353 (10th Cir. 2004)
(finding the ALJ should have “explained how a ‘severe’ impairment at step two became
‘insignificant’ at step five.”) [unpublished opinion]; see also Hamby v. Astrue, 260 Fed.
Appx. 108, 112 (10th Cir. 2008) (“In deciding Ms. Hamby’s case, the ALJ concluded that
she had many severe impairments at step two. He failed to consider the consequences of
these impairments, however, in determining that Ms. Hamby had the RFC to perform a
wide range of sedentary work.”) [unpublished opinion]. Indeed, the ALJ gave great
weight to the findings of Dr. Jeffries, and yet his opinion is devoid of how he accounted
for her repeated findings related to the claimant’s need for a low stress environment,
which is the only way she indicated that he could maintain pace. This is improper
picking and choosing. See Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004)
(noting that the ALJ may not “pick and choose among medical reports, using portions of
evidence favorable to his position while ignoring other evidence.”), citing Switzer v.
Heckler, 742 F.2d 382, 385-386 (7th Cir. 1984). The Commissioner attempts to argue
that the ALJ’s RFC did account for the claimant’s limitations regarding concentration,
persistence, and pace, as well as his need to work in a low stress environment, but such
arguments are improper post hoc rationale that the Court declines to adopt. See Haga v.
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Astrue, 482 F.3d 1205, 1207-1208 (10th Cir. 2007) (“[T]his court may not create or adopt
post-hoc rationalizations to support the ALJ’s decision that are not apparent from the
ALJ’s decision itself.”) [citations omitted]. The error here is that the ALJ himself did not
connect the evidence to the actual RFC limitations.
Additionally, the claimant argues that the ALJ erred in completely disregarding
Dr. Lester’s opinions. Although the evidence that Dr. Lester was the claimant’s treating
physician beginning August 2013 was somehow not made part of the original
administrative record, it was made part of the record when the Appeals Council reviewed
it (Tr. 412). As such, a proper analysis requires the Appeals Council to consider this
additional evidence if it is: (i) new, (ii) material, and (iii) “relate[d] 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. 2-6), and the undersigned Magistrate Judge 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). The additional records submitted to the Appeals
Council were clearly new evidence. In particular, Dr. Lester’s treating notes were never
presented to the ALJ prior to his decision, and in fact were the reason the ALJ gave his
opinions no weight at the administrative level. They are thus neither duplicative nor
cumulative. 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
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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 23, 1996). In formulating the claimant’s RFC, the ALJ relied, at least in part, on
the lack of statements by any treating physician with regard to the claimant’s limitations.
But Dr. Lester’s assessment strongly suggests the claimant could not work on a full-time
basis due to his mental impairments (Tr. 9-34,405-412). 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 if 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 claimant meets the insured
status through the date of the ALJ’s decision, so all of the records (which pertain to dates
prior to the ALJ’s decision) are relevant to the claimant’s condition as to the existence or
severity of her impairments. See Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir.
1984) (“[M]edical evidence of a claimant’s condition subsequent to the expiration of the
claimant’s insured status is relevant evidence because it may bear upon the severity of the
claimant’s condition before the expiration of his or her insured status.”), citing Bastian v.
Schweiker, 712 F.2d 1278, 1282 n.4 (8th Cir. 1983); Boyd v. Heckler, 704 F.2d 1207,
1211 (11th Cir. 1983); Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981); Poe v.
Harris, 644 F.2d 721, 723 n. 2 (8th Cir. 1981); Gold v. Secretary of H.E.W., 463 F.2d 38,
41-42 (2d Cir. 1972); Berven v. Gardner, 414 F.2d 857, 861 (8th Cir. 1969).
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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). The ALJ had no opportunity to perform the proper analysis, and
while the Appeals Council considered this new evidence, they failed to analyze it in
accordance with the appropriate standards described below.
Because the ALJ failed to properly assess the evidence in determining the
claimant’s RFC, including the treating physician opinion evidence, the decision of the
Commissioner should be reversed and the case remanded to the ALJ for further analysis
of the claimant’s RFC. If on remand there is any adjustment to the claimant’s mental
RFC, the ALJ should re-determine what work, if any, the claimant can perform and
ultimately whether he 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.
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STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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