Price v. Social Security Administration

Filing 22

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
CHESTER L. PRICE,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-16-079-KEW

OPINION AND ORDER

Plaintiff Chester L. Price (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

discussed

below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

Commissioner’s decision should be and is REVERSED and the case is
REMANDED to Defendant 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).
Security

Act

“only

if

A claimant is disabled under the Social
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

§423(d)(2)(A).

in

the

national

economy.

.

.”

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:

This Court’s review is limited to

first, whether the decision was supported by

1

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

substantial

evidence;

and,

standards were applied.

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

(10th Cir. 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 & Human

Servs., 933 F.2d 799, 800 (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 59 years old at the time of the ALJ’s decision.
Claimant completed his high school education.

Claimant has worked

in the past as a pest control technician, welder, and brand and
shear operator (sheet metal worker).

Claimant alleges an inability

to work beginning March 8, 2013 due to limitations resulting from
seizure disorder and back pain and spasms.

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Procedural History
On March 25, 2013, Claimant protectively filed for disability

insurance benefits under Title II (42 U.S.C. § 401, et seq.) of the
Social Security Act.

Claimant’s application was denied initially

and upon reconsideration.

On June 2, 2014, an administrative

hearing was held before Administrative Law Judge (“ALJ”) Lantz
McClain by video with Claimant appearing in Muskogee, Oklahoma and
the ALJ presiding in Tulsa, Oklahoma.

By decision dated October

27, 2014, the ALJ denied Claimant’s request for benefits.

The

Appeals Council denied review of the ALJ’s decision on January 27,
2016.

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
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) improperly

4

relying upon the testimony of the vocational expert; (2) depriving
Claimant of due process; (3) failing to find Claimant’s seizure
disorder

meets

or

equals

a

listing;

(4)

failing

to

properly

consider, weigh, and evaluate the medical evidence; (5) failing to
consider all of Claimant’s impairments properly throughout the
sequential

evaluation;

and

(6)

failing

to

perform

a

proper

credibility determination.

Vocational Expert Testimony
In his decision, the ALJ found Claimant suffered from the
severe

impairment

of

seizure

disorder.

(Tr.

21).

The

ALJ

determined Claimant retained the RFC to perform a full range at all
exertional levels with the non-exertional limitations of seizure
precautions,

i.e.

avoiding

hazards

such

as

machinery and not drive as a part of work.

heights

and

(Tr. 24).

open
After

consultation with a vocational expert, the ALJ found Claimant could
perform the representative jobs of hand packer and dishwasher, both

of which he found existed in sufficient numbers in the regional and
national economies.

(Tr. 29).

As a result, the ALJ determined

Claimant was not disabled from March 8, 2013 through the date of
the decision.

Id.

Claimant contends the vocational expert’s testimony conflicted
with the Dictionary of Occupational Titles (“DOT”) and the ALJ

5

failed to elicit an explanation for the conflict.

Claimant first

contends the ALJ and vocational expert identified his past relevant
work of hand packer as medium work when it is, in fact, designated
by the DOT to require light work.

The DOT from the source utilized

by this Court identifies the job of hand packager as requiring
medium work.

See DOT #920.587-018, 1991 WL 687916.

Claimant also

states that the hand packager job requires occasional proximity to
moving mechanical parts. This statement is also inaccurate, as the
DOT for both the hand packager job and the dishwasher job state,
“Moving Mech. Parts:
exist.”

Not Present – Activity or condition does not

Id.; DOT #318.687-010, 1991 WL 672755.

Consequently, no

conflict with the DOT exists in the vocational expert’s testimony.
Claimant next asserts the ALJ should have considered his hand
tremors and shoulder problems as precluding his ability to engage
in his past relevant work because both of these jobs require
constant reaching and handling. Claimant does not direct the Court
to the references to these conditions in the medical record.
However, as the ALJ notes, Dr. Gary Postelwait found Claimant to be
“negative” for tremors, in spite of Claimant’s complaints to the
contrary.

(Tr. 300).

In a consultative examination, Dr. Beth

Jeffries stated that she did not observe any tremors during the
examination.

(Tr. 290).

The ALJ was within his prerogative to

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reject this limitation.
problems”

to

which

Other than stiffness, the “shoulder

Claimant

supported by medical evidence.

refers

in

the

briefing

are

not

This Court attributes no error to

this analysis or to the vocational expert’s testimony.
Denial of Due Process (Duty to Develop the Record)
Claimant couches his next contention as one concerning a
denial of due process.
to

adequately

In fact, Claimant contends the ALJ failed

develop

the

record

by

not

ordering

consultative physical and neurological examinations.

further
Claimant

appears to argue that the ALJ should have ordered a consultative
examination

of

undefined

“nonsevere

impairments.”

He,

then,

contends that an unsatisfactory record of Claimant’s anticonvulsant
blood levels exists in the record.
The

relevant

Ruling

anticonvulsant blood levels.

addresses

the

evaluation

of

low

It does provide that “information

concerning current blood levels should be purchased when the
existing

evidence

does

not

contain

blood

drug

levels

and

a

favorable decision appears to be indicated.” Soc. Sec. R. 87-6 *3,
1987

WL

109184.

Claimant’s

seizure

In

this

disorder

instance,
was

the

ALJ

controlled

by

determined

that

medication

as

indicated by Dr. Harold Goldman’s medical record dated October 1,
2013.

(Tr. 26, 348).

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The problem with this conclusion lies with the failure to
recognize the subsequent records from Dr. Goldman which indicate
Claimant’s seizure condition continued.

Dr. Goldman stated on

March 11, 2014 that he “tried multiple medications and [the
seizures] are not amenable to medication. He has seizures at least
six to eight times a month.

These are minor motor seizures but

they are accompanied by unconsciousness and period of confusion
after the seizure. . . . I am afraid that this is a case in which
his seizures will not be able to be controlled.”

(Tr. 346).

The record is incomplete as to the anticonvulsant blood levels
as required by the Ruling and the ALJ did not adequately address
the lack of testing, instead relying upon an incomplete conclusion
that Claimant’s condition was controlled in order to conclude that
a favorable decision was not indicated.

On remand, the ALJ shall

obtain this testing in order to adequately develop the record in
accordance with Soc. Sec. R. 87-6.
Claimant also contends the ALJ should have ordered further
neurological testing based upon Dr. Jeffries findings that testing
would “provide more specific information in terms of whether theses
are pseudo seizures, or some other type of seizures and more
importantly,

what

the

impact

is

on

Mr.

Price’s

ability

to

function.” (Tr. 290). While giving Dr. Jeffries opinions rendered

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in the case “significant weight,” he did not explain the basis for
not obtaining the additional testing advised by Dr. Jeffries.
remand,

the

ALJ

shall

explain

the

failure

to

obtain

On
the

neurological testing or order the testing to be performed.
Listing Evaluation
Claimant also contends the ALJ should have concluded his
seizure condition met or equaled a listing.

The ALJ evaluated

Claimant for Listing 11.02 (convulsive epilepsy) and 11.03 (nonconvulsive epilepsy). He cited to the requirements of Soc. Sec. R.
87-6 and found that Claimant lacked (1) a satisfactory description
by the treating physician of the treatment regimen and response and
corroboration of the nature and frequency of seizures, to permit an
informed judgment and impairment severity; and (2) a record of
anticonvulsant

blood

levels.

(Tr.

24).

Without

further

explanation, other than that the information was not included in
the record, the ALJ found Claimant did not meet these listings.
(Tr. 23).
This Court has already determined that the ALJ failed in
developing the record in not purchasing the anticonvulsant blood
level testing.

Additionally, the expectations of the ALJ are

unclear as to the treatment records from Dr. Goldman, Claimant’s
treating physician.

Many of the records were submitted post-

9

hearing but should have been considered. They contain considerable
information on Claimant’s treatment.

(Tr. 305, 340-366).

On

remand, the ALJ shall re-evaluate his step three findings after
obtaining the blood level testing and examining the treatment
record.
Consideration of the Medical Opinion Evidence
Claimant contends the ALJ did not properly consider and weigh
the medical opinion evidence. The ALJ found Dr. Goldman’s opinions
were not entitled to “controlling weight” because of “inconsistency
regarding the effectiveness of the claimant’s seizure medication.
. . .”

He also criticized the absence of seven years of treatment

records which he found “clouds” the nature and extent of Dr.
Goldman’s

treatment

relationship

with

Claimant.

(Tr.

27).

Rejecting the opinion of a treating physician on the basis of the
ALJ’s perceived effectiveness of medical treatment smacks of the
impermissible substitution of an ALJ’s medical opinion for that of
a qualified medical professional.

Hamlin v. Barnhart, 365 F.3d

1208, 1220 (10th Cir. 2004). As for the lack of treatment records,
the ALJ certainly may consider this fact but the longitudinal
record is still extensive, covering approximately two and a half
years during which Dr. Goldman attended Claimant on numerous
occasions.

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Additionally, even if the ALJ was justified in declining to
give

Dr.

Goldman’s

opinion

controlling

weight,

he

was

still

obligated to explain the reduced weight he did accord the opinion.
See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).

He

did not do this. On remand, the ALJ shall re-examine Dr. Goldman’s
opinion, his treatment records, and provide an appropriate analysis
of

the

weight

he

gave

the

opinion

of

this

primary

treating

physician.
Claimant also contends the ALJ should have evaluated the
opinion of Dr. Gary L. Postelwait.

While this Court does not note

any opinions per se that Dr. Postelwait provided on Claimant’s
condition other than diagnoses which the ALJ noted, the ALJ should
re-evaluate all opinion evidence on remand.
Claimant asserts the ALJ failed to properly consider Dr.
Jeffries’
disorder.

opinions

that

Claimant

suffered

from

a

cognitive

This Court has stated that additional neurological

testing should be ordered consistent with Dr. Jeffries’ opinion.
The ALJ should re-evaluate her opinion after the testing is
obtained.
Consideration of Impairments at All Steps
Claimant argues a “catch all” issue that numerous other
conditions which he alleged at various times should have been

11

considered by the ALJ.

This Court has rejected the argument that

tremors should have been accommodated in the RFC.

The effects of

the remaining conditions, though non-severe, should be addressed by
the ALJ.
Credibility Determination
The actual testimony which the ALJ determined to be “not
entirely credible” is unclear. He cites to testimony that Claimant
quit working because of his seizures, which the ALJ concluded was
Claimant’s only “credible severe impairment.”

(Tr. 26).

He also

cited to the third party statements of his wife and sister which he
found to be of “limited weight.”

(Tr. 27).

It is well-established that “findings as to credibility should
be closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.”
F.3d 387, 391 (10th Cir. 1995).

Kepler v. Chater, 68

“Credibility determinations are

peculiarly in the province of the finder of fact” and, as such,
will not be disturbed when supported by substantial evidence.

Id.

Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or
other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of

12

any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other
symptoms; (6) any measures other than treatment the individual uses
or has used to relieve pain or other symptoms (e.g., lying flat on
his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) any other factors concerning the
individual's functional limitations and restrictions due to pain or
other symptoms.

Soc. Sec. R. 96-7p; 1996 WL 374186, 3.

An ALJ

cannot satisfy his obligation to gauge a claimant’s credibility by
merely making conclusory findings and must give reasons for the
determination based upon specific evidence.
391.

He

is

certainly

under

the

Kepler, 68 F.3d at

obligation

statements by Claimant are not credible.

to

state

which

The ALJ should also re-

evaluate Claimant’s credibility in light of his insights into any
new evidence developed in the record.
Additionally, 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

13

374186 (July 2, 1996). The ALJ shall apply the new guidelines under
Soc. 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, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is

REVERSED and the

matter REMANDED to Defendant for further proceedings.
IT IS SO ORDERED this 25th day of September, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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