Owens v. Social Security Administration

Filing 23

OPINION AND ORDER by Magistrate Judge Kimberly E. West - This case is reversed and the matter remanded to Defendant for further proceedings. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DENISE A. OWENS,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-16-181-KEW

OPINION AND ORDER

Plaintiff Denise A. Owens (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

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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).

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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 24 years old at the time of the ALJ’s decision.
Claimant completed her high school education.

Claimant has worked

in the past as a grocery bagger and store laborer/stocker. Claimant
alleges an inability to work beginning January 30, 2013 due to
limitations

resulting

from

cerebral

palsy,

degenerative

disease, depression, hip pain, weakness, and leg pain.

3

disc

Procedural History
On January 23, 2013, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) and for

supplemental security income pursuant to Title XVI (42 U.S.C. §
1381, et seq.) of the Social Security Act. Claimant’s applications
were denied initially and upon reconsideration.

On June 17, 2014,

an administrative hearing was held before Administrative Law Judge
(“ALJ”) Bernard Porter in McAlester, Oklahoma.
September

15,

2014,

the

ALJ

denied

By decision dated

Claimant’s

requests

for

benefits. The Appeals Council denied review on March 15, 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 her decision at step five of the sequential
evaluation.

He determined that while Claimant suffered from severe

impairments, she did not meet a listing and retained the residual
functional

capacity

(“RFC”)

to

perform

sedentary

work

with

limitations.

Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to

4

properly evaluate, consider, and weigh the medical evidence; (2)
reaching a flawed RFC; and (3) performing an improper credibility
determination.

Consideration of the Medical Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of cerebral palsy and degenerative disc disease
of the lumbar spine.

(Tr. 28).

The ALJ determined Claimant

retained the RFC to perform sedentary work, in that she could
lift/carry
frequently.

up

to

ten

pounds

occasionally

and

five

pounds

The ALJ determined Claimant must be allowed to change

positions briefly for three to four minutes at a time every 30
minutes, was limited to occasional use of foot controls, could
occasionally climb ramps and stairs, but could never climb ladders,
ropes, or scaffolds.

Claimant was limited to frequent balancing,

stooping, and crouching.

According to the ALJ, Claimant could

occasionally kneel and climb ramps and stairs, but could never
crawl.

Claimant could not work around unprotected heights or

moving mechanical parts.

She must avoid any environments where

there are temperature extremes.

Due to episodic symptomatology,

Claimant may be off task for up to five percent of the day.

(Tr.

30).
After consultation with a vocational expert, the ALJ found

5

Claimant could perform the representative jobs of credit card call

out operator, election clerk, and surveillance system monitor, all
of which were found by the ALJ to exist in sufficient numbers in
both the national and regional economies.

(Tr. 35).

As a result,

the ALJ determined Claimant was not disabled from January 30, 2013
through the date of the decision.

Id.

Claimant contends the ALJ failed to evaluate and weigh all of
the medical opinions appearing in the record.

Specifically,

Claimant alleges the ALJ failed to consider the opinion of Dr.
David G. Malone, a treating physician.

Dr. Malone examined

Claimant in 2014 and found she had negative straight leg raising
but

positive

Patrick’s

sign

testing

bilaterally.

Her

motor

strength was 5/5 in the deltoid, biceps, triceps, wrist flexor,
wrist extensor and intrinsics.

She was 5/5 in the hip flexor and

quadriceps but her dorsiflexor and plantar flexors were slightly
weak.

She could not heel walk but could toe walk.

with a broad-based spastic type gait.

Claimant walked

Dr. Malone diagnosed

Claimant with low back pain and possible spondylolisthesis and
spondylolysis.

He recommended further CT and MRI scans.

(Tr.

420).
On February 6, 2014, Dr. Malone concluded that Claimant had a
grade

I,

almost

grade

II

spondylolisthesis

6

and

bilateral

spondylolysis at L5-S1.
her weakness.”

He recommended “surgical therapy due to

(Tr. 418).

The ALJ referenced Dr. Malone’s

findings in his decision but did not specifically weigh the opinion
or consider the effect upon Claimant’s ability to engage in basic
work

activity.

He

merely

dismissed

the

conclusion,

finding

Claimant “has not followed up with him since that time.” (Tr. 31).
In deciding how much weight to give the opinion of a treating
physician, an ALJ must first determine whether the opinion is
entitled to “controlling weight.”

Watkins v. Barnhart, 350 F.3d

1297, 1300 (10th Cir. 2003). An ALJ is required to give the opinion
of a treating physician controlling weight if it is both: (1) “wellsupported by medically acceptable clinical and laboratory diagnostic
techniques”; and (2) “consistent with other substantial evidence in
the record.”

Id. (quotation omitted).

“[I]f the opinion is

deficient in either of these respects, then it is not entitled to
controlling weight.”

Id.

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 20 C.F.R. § 404.1527.”

Id. (quotation omitted).

factors reference in that section are:

The

(1) the length of the

treatment relationship and the frequency of examination; (2) the

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nature and extent of the treatment relationship, including the
treatment provided and the kind of examination or testing performed;
(3) the degree to which the physician's opinion is supported by
relevant evidence; (4) consistency between the opinion and the
record as a whole; (5) whether or not the physician is a specialist
in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ's attention which tend to support or contradict
the opinion.

Id. at 1300-01 (quotation omitted). After considering

these factors, the ALJ must “give good reasons” for the weight he
ultimately

assigns

the

opinion.

20

C.F.R.

§

404.1527(d)(2);

Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004)(citations
omitted).

Any such findings must be “sufficiently specific to make

clear to any subsequent reviewers the weight the adjudicator gave
to the treating source’s medical opinions and the reason for that
weight.”

Id.

“Finally, if the ALJ rejects the opinion completely,

he must then give specific, legitimate reasons for doing so.”
Watkins, 350 F.3d at 1301 (quotations omitted).
Defendant claims that the opinions rendered by Dr. Malone were
not statements of functional limitation which needed to be addressed
by Claimant.

The opinions clearly pertain to functional matters

such as walking and pain which should have been weighed and
specifically addressed by the ALJ.

Claimant also contends the ALJ failed to weigh and consider
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the opinion of Dr. Jack Weaver, another treating physician, in the
decision. However, the only finding which Claimant contends should
have been evaluated by the ALJ is that Dr. Weaver “allow[ed] her to
do activity as she can tolerate.”

(Tr. 409).

This is not the type

of opinion evidence which lends itself for evaluation by the ALJ
and need not to have been specifically addressed in the functional
assessment.
Claimant asserts that the ALJ only partially considered and
addressed the opinion of Dr. Jack Howard, a consultative examiner.
The ALJ noted Dr. Howard’s examination findings that Claimant “had
a slightly limited range of motion throughout her spine, as well as
mild kyphosis and increased lordosis.” He concluded, however, that
she was not tender to palpation in any region and “a neurological
evaluation was entirely normal.”

(Tr. 31).

Among Dr. Howard’s

assessments, he found Claimant had “[o]ngoing problems with lifting
due to persistent lumbar lordosis, increased pain in the lumbar
spine.”

(Tr. 336).

extension,

flexion,

abduction,

adduction,

bilaterally.

Claimant also exhibited diminished hip
and
and

abduction
forward

bilaterally

elevation

of

and
her

reduced
shoulders

(Tr. 337-38).

These limitations would appear to have more than a minimal
effect upon Claimant’s ability to engage in basic work activity and

9

should have been addressed by the ALJ in his evaluation of the
medical evidence. Salazar v. Barnhart, 468 F.3d 615, 625-626 (10th
Cir. 2006)(citing 20 C.F.R. § 416.927(d))(The ALJ must evaluate
every medical opinion in the record, and he will consider several
factors in deciding the weight that should be given to any medical
opinion).

Also, 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.”
1205, 1208 (10th Cir. 2007).

Haga v. Astrue, 482 F.3d

On remand, the ALJ shall consider the

totality of the evidence offered by Dr. Howard.
Step Four and Five Assessment
Claimant
limitations

in

contends

the

ALJ

concentration,

failed

to

persistence,

include
or

hypothetical questioning of the vocational expert.

pace

the

mild

in

the

The ALJ found

Claimant’s depression was non-severe because it did not cause more
than a minimal limitation in Claimant’s ability to perform basic
mental work activities.

(Tr. 28).

He included a limitation for

being off task for up to five percent of the day “[d]ue to episodic
symptomatology” in both the questioning of the vocational expert
and the RFC.

(Tr. 30, 69).

Presumably,

Claimant

references

the

mild

limitation

in

concentration, persistence, or pace that the ALJ found at step

10

three.

(Tr. 28).

The social security ruling on assessing a

claimant's RFC cautions that “[t]he adjudicator must remember that
the limitations identified in the ‘paragraph B’ ... criteria are
not an RFC assessment but are used to rate the severity of mental
impairment(s) at steps 2 and 3 of the sequential evaluation
process.”

Soc. Sec. R. 96–8p.

The Tenth Circuit has specifically

found that the failure to include a moderate limitation in social
functioning, for example, in the RFC based solely upon the finding
at step three is not error.
754 (10th Cir. 2013).

Beasley v. Colvin, 520 Fed. Appx. 748,

The ALJ was not required to mirror the

limitation at step four and five.
As for the inclusion of a five percent off task, the ALJ
should explain the basis for including this limitation. This Court
is unsure whether it was included to address Claimant’s non-severe
depression or some other condition which he was considering. Since
the case is to be remanded on other bases, the ALJ should clarify
this finding in any future decision.

This might include ordering

a consultative mental examination, if the limitation is in place to
address her mental condition.
In a rather jumbled argument with little support offered,
Claimant suggests that she could not perform any of the three
representative jobs identified by the vocational expert and adopted

11

by the ALJ because she can only perform simple tasks.

The three

jobs identified by the expert and ALJ require a reasoning level of
three which exceeds Claimant’s mental ability to work.

Claimant

offers little to no evidence to support this restrictive of an RFC
based upon her mental condition.

The RFC need only include such

limitations as the medical record substantially supports.
Arles v. Astrue, 438 Fed.Appx. 735, 740 (10th Cir. 2011).

See

The ALJ

did not err in failing to include additional mental limitations in
the RFC or in identifying jobs with a reasoning level of three.
Claimant also contends the jobs identified do not exist in
sufficient numbers since the combined numbers in the regional
economy total 482. The multi-factor analysis for assessing whether
a job exists in sufficient numbers espoused in Trimiar v. Sullivan,
966 F.2d 1326 (10th Cir. 1992) is inapplicable in cases such as
this one where the ALJ evaluated both the numbers in the regional
and national economies.

Raymond v. Astrue, 2009 WL 4799960, 4 n.2

(10th Cir.).
The Tenth Circuit in Trimiar did establish that “[t]his
Circuit has never drawn a bright line establishing the number of
jobs necessary to constitute a ‘significant number’ and rejects the
opportunity to do so here.”

Trimiar at 1330.

Rather, an ALJ must

explicitly set forth a discussion of the factors identified above

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in determining that the number of jobs a claimant can do exist in
significant numbers and an ALJ's finding is sufficient if the
record supports a conclusion that the ALJ used a common sense
approach in “weighing the statutory language as applied to a
particular claimant's factual situation.”
WL 4215557, 3 (W.D. Okla.).

Johnson v. Colvin, 2014

Since the jobs existed in sufficient

numbers in the national economy, the analysis has been satisfied.
See, Rogers v. Astrue,

2009 WL 368386, 4 (10th Cir.)(testimony by

vocational expert of 11,000 hand packager jobs in the national
economy could be relied upon by the ALJ as substantial evidence to
support a finding of non-disability).
Credibility Determination
On

remand,

the

ALJ

should

consider

the

testimony

of

accommodation provided by Claimant’s prior employer in evaluating
her credibility.
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.

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IT IS SO ORDERED this 19th day of September, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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