Glinn v. Social Security Administration

Filing 19

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
MELISSA ANN GLINN,

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

Case No. CIV-16-85-SPS

OPINION AND ORDER
The claimant Melissa Ann Glinn 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
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.

Security Act “only if h[er] physical or mental impairment or impairments are of 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

2

Step one requires the claimant to establish that she is not engaged in substantial gainful
activity, as defined by 20 C.F.R. §§ 404.1510, 416.910. 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. Id. §§ 404.1521, 416.921. If the
claimant is engaged in substantial gainful activity, or if her impairment is not medically severe,
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. If the claimant suffers from a listed
impairment (or impairments “medically equivalent” to one), she is determined to be disabled
without further inquiry. Otherwise, the evaluation proceeds to step four, where the claimant must
establish that she lacks the residual functional capacity (RFC) to return to her past relevant work.
The burden then shifts to the Commissioner to establish at step five that there is work existing in
significant numbers in the national economy that the claimant can perform, taking into account
her age, education, work experience and RFC. Disability benefits are denied if the Commissioner
shows that the claimant’s impairment does not preclude alternative work. See generally Williams
v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

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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
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 January 27, 1969, and was forty-five years old at the
time of the administrative hearing (Tr. 156, 354). She completed two years of college,
and has worked as a casino manager and sales clerk (Tr. 151, 395). The claimant alleges
she has been unable to work since August 24, 2010, due to bipolar disorder, anxiety,
seizures, heart disorder, sleep apnea, fibromyalgia, diabetes, and split personality
(Tr. 122, 394).
Procedural History
The claimant applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, and for supplemental security income benefits under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85, on October 29, 2012. Her
applications were denied. ALJ James Bentley conducted an administrative hearing and
found that the claimant was not disabled in a written opinion dated August 22, 2014
(Tr. 120-155). The Appeals Council denied review, so ALJ Bentley’s written opinion is
the final decision of the Commissioner for purposes of this appeal. See 20 C.F.R.
§§ 404.981, 416.1481.

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Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found the
claimant retained the residual functional capacity (“RFC”) to perform light work as
defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), i. e., she could lift/carry twenty pounds
occasionally and ten pounds frequently, and stand/walk and sit six hours in an eight-hour
workday, but that she had the additional postural limitations of occasionally stooping,
crouching, crawling, kneeling, balancing, and climbing ramps and stairs. Furthermore,
he found that she was unable to climb ropes, ladders, or scaffolds, and that she could
have no exposure to unprotected heights and dangerous moving machinery.

He

determined that she needed a sit/stand option, defined as a temporary change in position
every thirty minutes and without leaving the workstation so as not to diminish pace or
production.

Finally, he limited her to simple tasks with routine supervision, and

occasional contact with co-workers and supervisors, but no work-related contact with the
general public (Tr. 126). The ALJ concluded that although the claimant could not return
to her past relevant work, she was nevertheless not disabled because there was other work
that she could perform, i. e., small products assembler, garment bagger, and electronics
worker (Tr. 152).
Review
The claimant’s sole contention of error is that the ALJ erred in evaluating the
opinions of two treating physicians, Dr. Mark Rubertus and Dr. Charles Van Tuyl. The
Court agrees with the claimant, and the Commissioner’s decision should therefore be
reversed.
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The ALJ determined that the claimant had the severe impairments of obesity, sleep
apnea, seizure disorder (likely pseudoseizures), chronic pain syndrome, type II diabetes
mellitus, tachycardia, hypertension, hyperlipidemia, history of left humeral shaft fracture,
cervical radiculopathy, neck pain, mild cervical spinal stenosis, spondylitis, bipolar
disorder, mood disorder NOS, panic disorder with agoraphobia v. PTSD, borderline
personality disorder, and histrionic traits (Tr. 123).

Relevant medical records reflect

treatment notes from Dr. Rubertus for the claimant from 2007 through 2015. Notes
reflect treatment related to various impairments, including seizure disorder (that was
largely considered to be pseudoseizures), obesity, PTSD, fibromyalgia, type II diabetes,
borderline personality disorder, sleep apnea, panic disorder, GERD (Tr., e. g., 576-757,
1155-1166). Once the claimant’s sleep apnea was diagnosed around 2011, Dr. Rubertus
noted the claimant had more energy and reported feeling better (Tr. 600). On June 4,
2013, Dr. Rubertus noted that her somnolence and memory loss could be traced to her
medications, but that her psychosis was not part of her medications (Tr. 1157).
In February 2010, the claimant underwent an inpatient/intensive outpatient
treatment program at Carl Albert Community Mental Health Center. At discharge, she
was stable on her medications and had learned coping skills. Her diagnoses included
major depressive disorder (recent, severe, with psychotic features), and borderline
personality disorder, and she was assessed with a Global Assessment of Functioning
(GAF) score of 50 (Tr. 505). On March 16, 2011, the claimant was again treated for
suicidal ideation and was assessed with a mood disorder NOS, rule out malingering, as
well as borderline personality disorder, and was assigned a GAF of 24 (Tr. 503-504).
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She was considered to be in stable condition, but had a high risk assessment regarding
harm to self or others (Tr. 504).
Additionally, the record contains treatment notes from Dr. Van Tuyl, the
claimant’s psychiatrist, who treated the claimant from 2006, through at least 2009, when
he completed a Medical Source Statement. Although the content of their appointments
was largely suppressed for confidentiality purposes, the information available
nevertheless reflects that her diagnoses included PTSD secondary to sexual abuse, sleep
problems, bipolar I disorder, dissociative identity disorder, panic disorder with
agoraphobia, with GAF scores ranging from 40-60 (Tr. 720-765). Further Behavioral
Treatment notes from a different facility indicate the claimant in 2013 complained of
worsening anxiety, irritability, and insomnia, and noted she had minimal improvement
since admission to the service (Tr. 761-762).
On October 22, 2009, Dr. Van Tuyl completed a Medical Source Opinion of
Ability to do Work-Related Activities (Mental), in which he indicated that the claimant
had extreme limitation in five areas, including the ability to maintain attention and
concentration for extended periods in order to perform simple tasks, the ability to work
close to others without being distracted, and the ability to accept instructions and
criticism from supervisors (Tr. 496-497). He stated that she was unable to plan and acted
impulsively without a plan for long-term consequences, and stated that she had both
manic and depressive episodes with her mood disorder, she may have dissociative
identity disorder, and that she lacked social skills. He concluded, stating that he did not
consider her employable (Tr. 497).
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On February 19, 2013, Dr. Jack Howard completed a physical exam of the
claimant, at which time he assessed her with bipolar disorder, anxiety, depression,
fibromyalgia, diabetes, and tachycardia (Tr. 781-783). He further noted she had some
limited range of motion of the back, neck, and shoulders, as well as weak heel/toe
walking (Tr. 784-787). The claimant’s restricted range of motion was again confirmed in
May 2014 when an MRI revealed mild cervical spondylosis with no high grade central
canal or foraminal stenosis, resulting in diagnoses of cervical radiculopathy, cervical
spondylosis, neck pain, and low back pain (Tr. 1257-1258).
On February 22, 2013, Dr. Kathleen Ward conducted a mental status exam of the
claimant (Tr. 978). Her diagnostic impression was that the claimant was a marginally
reliable historian, who presented with very dramatic, extremely poor performance on
certain tasks, with her borderline personality disorder and histrionic traits predominating
(Tr. 981). Dr. Ward further noted the claimant was anxious and mood disordered, and
recommended continued mental health care and to stay in talk therapy, also stating that
the claimant’s “presentation of emotional modulation is significantly worse than what is
reported during physician visits” (Tr. 981).

She assessed the claimant with mood

disorder not otherwise specified and panic disorder with agoraphobia v. PTSD, as well as
borderline personality disorder and histrionic traits (Tr. 981).
On September 11, 2013, Dr. Rubertus completed a number of forms related to the
claimant’s ability to perform work. In support of his statements regarding her inability to
perform even sedentary work requirements, he cited her high anxiety, social phobia, poor
concentration, and chronic pain (Tr. 1211). As to her pain, he noted her fibromyalgia,
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PTSD, and panic disorder, indicating, inter alia, that her prescribed medication would
totally restrict her from performing at a productive level of work, that pain causes such a
reduction in basic mental work activities that rest and/or medication are necessary
(Tr. 1212).
Sate reviewing physicians found that the claimant could perform light work but
could never climb ladders/ropes/scaffolds, and was to avoid all exposure to hazards
(Tr. 233-234, 267-268).

As to her mental impairments, state reviewing physicians

determined that she was moderately limited in the ability to understand and remember
detailed instructions, carry out detailed instructions, accept instructions and respond
appropriately to criticism from supervisors, and get along with coworkers or peers
without distracting them or exhibiting behavioral extremes.

Furthermore, she was

markedly limited in the ability to interact appropriately with the general public (Tr. 236237, 270-271). The physician concluded that the claimant could understand, retain, and
perform routine tasks on a sustained basis, she had difficulty with interpersonal relations
and would perform better in jobs with limited requirements to interact with co-workers,
would not interact well with the public, can work with normal supervision and in a setting
where she can work mostly alone, and can adjust to the mental demands of the workplace
and carry out simple instructions (Tr. 237, 271).
In his written opinion, the ALJ extensively summarized the evidence in the record,
as well as the claimant’s hearing testimony. As to Dr. Rubertus, he appeared to describe
the content of every appointment she had with him over the years, and noted Dr.
Rubertus’s 2013 Medical Source Statement, also summarizing it at length (Tr. 128-146).
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He then “acknowledged” that Dr. Rubertus had a long-term treating relationship with the
claimant, but gave little weight to his opinion, finding that it was inconsistent with his
treating notes and findings on examination (Tr. 147).

Specifically, the ALJ found

contradictory Dr. Rubertus’s statement that the claimant’s medications kept her from
operating at a productive level for work with his treatment notes indicating that he was
trying to wean her off multiple redundant medications (Tr. 147). The ALJ also noted that
the claimant had been informed her seizures were not real, and his statements regarding
trigger points were contradicted by consultative examiner Dr. Howard (Tr. 147). Finally,
the ALJ pointed out that Dr. Rubertus stated the claimant needed to elevate her legs, but
only one treatment note from 2009 referred to edema (Tr. 147). As to Dr. Van Tuyl, the
ALJ noted that his assessment was completed prior to the alleged onset date, and gave it
little weight because: (i) he stated she may have dissociative identity disorder but no
subsequent provider had diagnosed her with such; (ii) although most of the records were
suppressed for confidentiality, the GAF scores in the record suggest she had no more than
moderate symptoms at the time; (iii) the claimant was dramatic in her presentation and
suspected of malingering; and (iv) the extreme degree of limitation was lacking in
objective medical evidentiary support (Tr. 147). The ALJ performed no separate analysis
of Dr. Howard’s or Dr. Ward’s opinions, although he did refer to them at various points
in the lengthy opinion, summarized them, and appeared to rely on them (Tr. 142-151).
Medical opinions from a treating physician are entitled to controlling weight if
they are “‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques . . . [and] consistent with other substantial evidence in the record.’” See
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Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004), quoting Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir. 2003). If a treating physician’s opinion is not entitled to
controlling weight, the ALJ must determine the proper weight to give it by analyzing the
factors set forth in 20 C.F.R. §§ 404.1527 and 416.927. Id. at 1119 (“Even if a treating
physician’s opinion is not entitled to controlling weight, ‘[t]reating source medical
opinions are still entitled to deference and must be weighed using all of the factors
provided in [§§ 404.1527 and 416.927].’”), quoting Watkins, 350 F.3d at 1300. Those
factors are: (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. Watkins, 350 F.3d at 13001301, citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) [quotation
omitted]. Finally, if the ALJ decides to reject a treating physician’s opinions entirely, “he
must . . . give specific, legitimate reasons for doing so[,]” id. at 1301 [quotation marks
omitted; citation omitted], so it is “clear to any subsequent reviewers the weight [he] gave
to the treating source’s medical opinion and the reasons for that weight.” Id. at 1300
[quotation omitted].
The ALJ was required to evaluate for controlling weight any opinions as to the
claimant’s functional limitations expressed by her treating physicians.
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The ALJ’s

analysis, as described above, falls short in this case for the opinions of Dr. Rubertus and
Dr. Van Tuyl. The claimant asserts that the ALJ erred in his assessment by elevating the
opinions of the consultative examiners above the claimant’s treating physicians, and the
Court agrees. Although the ALJ noted the proper analysis at the outset of step four, he
failed to properly apply it when he chose to rely on consultative and reviewing physician
opinions to discount the treating physicians. The government argues that the ALJ’s
weighing of the opinions in this way was valid because the ALJ relied on the objective
findings of Dr. Howard, and that it was Dr. Ward’s “clinical observations,” rather than
her opinion that the ALJ found inconsistent. However, such one-time examinations are
not replacements for long-term treatment relationships. Indeed, much was made of Dr.
Rubertus’s own efforts to reduce the claimant’s medications, which were stated to have
caused many of her side effects, but ignored the fact that his assessments regarding her
impairments remained even with the medications. For instance, Dr. Rubertus explicitly
stated that the claimant’s psychosis would remain even if her redundant medications had
been removed.

Additionally, the three reasons given for assigning little weight to Dr.

Rubertus’s opinion do not account for the longitudinal treatment record.
As to Dr. Van Tuyl’s treating assessment, the ALJ noted that Dr. Ward believed
her presentation was “significantly worse” than was reported during her treatment visits
with Dr. Robertus. However, the extensive mental health treatment notes have all been
suppressed except for diagnoses. Moreover, the ALJ made much of the two places in the
record where the claimant was suspected of malingering (with Dr. Ward and at Carl
Albert where the assessment was rule out malingering), without acknowledging even Dr.
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Ward assessed her with histrionic traits, which is a diagnosable mental health condition.
Additionally, the ALJ assigned little weight to Dr. Van Tuyl’s assessment because she
was stable on her medications in 2010 and only described as “moderately ill” at one point
in 2013, although treatment records also indicate that she made minimal progress and she
was hospitalized or placed in outpatient treatment on several occasions due to her mental
impairments.

It thus appears the ALJ made a number of assumptions about the

claimant’s mental health treatment in order to reject Dr. Van Tuyl’s assessment.
Indeed, the ALJ devoted much of his discussion at step four to questioning his
determination at step two, i. e., the severity of the listed impairments. See McCleave v.
Colvin, 2013 WL 4840477, at *6 n.6 (W.D. Okla. Sept. 10, 2013) (“Additionally, the
ALJ found Plaintiff’s subjective complaints not credible in part because of evidence of
her noncompliance with prescribed psychotropic medications. However, the ALJ did not
consider whether Plaintiff had an acceptable reason for failing to follow her prescribed
treatment, which could include her bipolar disorder.”) [emphasis added], citing 20 C.F.R.
§§ 404.1530(c), 416.930(c) and Jelinek v. Astrue, 662 F.3d 805, 814 (7th Cir. 2011)
(“ALJ’s assessing claimants with bipolar disorder must consider possible alternative
explanations before concluding that non-compliance with medication supports an adverse
credibility inference.”).

This was an improper assessment where, as here, the ALJ

appeared to devote much of his time at step four to pointing out the inconsistencies in the
record rather than determining the claimant’s RFC. Drapeau v. Massanari, 255 F.3d
1211, 1214 (10th Cir. 2001) (A reviewing court is “‘not in a position to draw factual
conclusions on behalf of the ALJ.’”), quoting Prince v. Sullivan, 933 F.2d 598, 603 (7th
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Cir. 1991). See also 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) (“Th[e] report is uncontradicted and the
Secretary’s attempt to use only the portions favorable to her position, while ignoring
other parts, is improper.”) [citations omitted].
Moreover, it is evident that the ALJ failed to properly evaluate all of the
claimant’s impairments in combination, in particular failing to connect the repeated
findings regarding the limited range of motion to the claimant’s specific RFC, as well as
the effect of the claimant’s mental impairments on her physical impairments. This failure
to consider all impairments—singly and in combination—was error at step four. See Hill
v. Astrue, 289 Fed. Appx. 289, 292 (10th Cir. 2008) (“In determining the claimant’s RFC,
the ALJ is required to consider the effect of all of the claimant’s medically determinable
impairments, both those he deems ‘severe’ and those ‘not severe.’”).
Finally, the undersigned Magistrate Judge notes that the Social Security
Administration eliminated the term “credibility” in Soc. Sec. Rul. 16-3p, 2016 WL
1119029 (Mar. 16, 2016), and has provided new guidance for evaluating statements
pertaining to intensity, persistence, and limiting effects of symptoms in disability claims.
“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).
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Because the ALJ failed to conduct a proper assessment of the evidence in the
record, the undersigned Magistrate Judge finds he did not properly consider it.
Consequently, the decision of the Commissioner should be reversed and the case
remanded to the ALJ for further proper analysis of the claimant’s RFC in light of all the
evidence and all of the claimant’s impairments. If on remand there is any 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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