Mendez v. Social Security Administration

Filing 25

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
CHARLOTTE MENDEZ,

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

Case No. CIV-16-189-KEW

OPINION AND ORDER

Plaintiff Charlotte Mendez (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).

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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 52 years old at the time of the ALJ’s latest
decision. Claimant completed her high school education and one year
of college. Claimant has worked in the past as a collections clerk,
corrections officer, home attendant, appointment clerk, poultry
hanger, bandsaw operator, and machine packager.

Claimant alleges

an inability to work beginning November 1, 2009 due to limitations

3

resulting

from

degenerative

disc

disease,

chronic

back

pain,

arthritis, migraines, fibromyalgia, high blood pressure, diabetes,
depression, and anxiety.
Procedural History
On October 11, 2011, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) of the

Social Security Act.

On September 13, 2011, Claimant filed an

application 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.

February

7,

2013,

an

administrative

hearing

was

held

On

before

Administrative Law Judge (“ALJ”) Doug Gabbard, II in McAlester,
Oklahoma.

By

decision

dated

May

10,

2013,

the

ALJ

denied

Claimant’s requests for benefits. The Appeals Council reversed and
remanded the decision on June 11, 2014.
On remand, the ALJ conducted a second administrative hearing
on November 20, 2014 in McAlester, Oklahoma.
unfavorable decision on January 8, 2015.
denied review on March 15, 2016.

He issued a second
The Appeals Council

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

4

The ALJ made his 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 light work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in rejecting the
opinion of her treatment provider that Claimant must use a cane to
ambulate.

RFC Determination
In his decision, the ALJ found Claimant suffered from the
severe impairments of minimal degenerative disc disease of the
spine, left knee medial meniscus tear status post surgical repair,
diabetes mellitus, and obesity.

(Tr. 13).

The ALJ determined

Claimant retained the RFC to perform light work except that she can
only occasionally climb ramps and stairs but never climb ropes,
ladders, and scaffolds.
kneel,

crouch,

bilaterally.

and

She could occasionally balance, stoop,

crawl.

She

could

not

reach

overhead

According to the ALJ, Claimant must be allowed to

alternately sit and stand every 15 to 20 minutes throughout the
workday for the purpose of changing positions without leaving the
workstation.

(Tr. 22).

After consultation with a vocational expert, the ALJ found

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Claimant could perform the representative jobs of arcade attendant,

and small product assembler, both of which he found existed in
sufficient numbers in the regional and national economies.
29).

(Tr.

As a result, the ALJ determined Claimant was not disabled

from November 1, 2009 through the date of the decision.

Id.

Claimant contends the ALJ failed to properly consider the
opinion of Claimant’s medical treatment provider that she must have
a cane to ambulate.

On July 20, 2012, Tonya J. Boles, a certified

physician’s assistant, examined Claimant.

She noted Claimant’s x-

ray showed arthritis in the right knee and Claimant complained of
the knee buckling.

(Tr. 569).

knee to be tender to palpation.

Ms. Boles found Claimant’s right
Among her assessments, Ms. Boles

diagnosed Claimant with right knee buckling and osteoarthritis.
(Tr. 570).
directed.

Ms. Boles directed Claimant to begin using a cane as
Id.

The ALJ discussed Ms. Boles treatment and assessments in his
decision.

(Tr. 15).

He recognized Ms. Boles recommended the use

of a cane due to buckling and tenderness.

Id.

The ALJ also

discussed Claimant’s testimony regarding her knee problems and that
her “doctor suggested that she use a walker” but that a cane was
prescribed in 2012.

(Tr. 24).

The ALJ, however, included no

discussion of the weight accorded Ms. Boles opinion and did not

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include any restrictions in the RFC or the hypothetical questioning
of the vocational expert to accommodate the use of an assistive
device or reject the recommendation for the use of the device.
A physician’s assistant is not an “acceptable medical sources,”
as that term is defined by the regulations.

Physician’s assistants

fall within the category of “other sources” and are deemed to be
“medical sources” who are not “acceptable medical sources.”
C.F.R. §§ 404.1513(d)(1); 416.913(d)(1).
Sec.

R.

06-3p

regulations.

was

intended

as

a

20

The formulation of Soc.

clarification

of

existing

This ruling states, in pertinent part:

[The existing] regulations provide specific criteria for
evaluating medical opinions from “acceptable medical
sources”; however, they do not explicitly address how to
consider relevant opinions and other evidence from “other
sources” listed in 20 C.F.R. 404.1513(d) and 416.913(d).
With the growth of managed health care in recent years
and the emphasis on containing medical costs, medical
sources who are not “acceptable medical sources,” such as
nurse practitioners, physician assistants, and licensed
clinical social workers, have increasingly assumed a
greater percentage of the treatment and evaluation
functions previously handled primarily by physicians and
psychologists. Opinions from these medical sources . . .
are important and should be evaluated on key issues such
as impairment severity and functional effects, along with
the other relevant evidence in the file.
In order to effectuate this express policy, the ALJ should
discuss these “other sources” and fully explain the weight given to
any such opinion.

Bowman v. Astrue, 512 F.3d 1270, 1275 (10th Cir.

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2008).

The ALJ failed to expressly weigh and evaluate Ms. Boles’

opinion, in particular as it pertains to the use of a cane.
Defendant’s explanation for the ALJ’s omission is without support.
The fact Defendant now argues Ms. Boles failed to explain the
circumstances for the use of a cane only points up the ALJ’s
deficiencies in addressing this opinion.

If further explanation

were needed, he should have re-contacted Ms. Boles to ascertain the
basis

for

the

prescription,

although

relatively clear - knee buckling.

the

explanation

appears

On remand, the ALJ shall

consider Ms. Boles’ opinion concerning the use of a cane, state the
weight given to the opinion and the basis for doing so, and its
effect upon the RFC and the available cache of jobs to Claimant.
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 13th day of September, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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