Morgan v. Social Security Administration

Filing 20

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
MICHAEL D. MORGAN,

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

Case No. CIV-16-196-SPS

OPINION AND ORDER
The claimant Michael D. Morgan requests judicial review of a denial of benefits
by the Commissioner of the Social Security Administration pursuant to 42 U.S.C.
§ 405(g). He appeals the Commissioner’s decision and asserts that the Administrative
Law Judge (“ALJ”) erred in determining he was not disabled. For the reasons discussed
below, the Commissioner’s decision is hereby REVERSED and the case is 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 W.
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,

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).

-2-

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 February 27, 1969, and was forty-five years old at the time
of the administrative hearing (Tr. 170, 172). He has at least an eighth grade education,

3

vocational training in computer repair and graphic design, and has worked as a graphic
designer (Tr. 49, 67). The claimant alleges he has been unable to work since an amended
onset date of October 31, 2012, due to bipolar disorder, depression, high blood pressure,
diabetes, sleep disorder, neck and back injuries, a learning disability, high cholesterol,
and numbness in his feet and hands (Tr. 37, 192, 239).
Procedural History
On October 16, 2012, the claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and on October 19, 2012, he
applied for supplemental security income benefits under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381-85 (Tr. 170-77). His applications were denied. ALJ James
Bentley held an administrative hearing and determined that the claimant was not disabled
in a written opinion dated September 9, 2014 (Tr. 13-26). The Appeals Council denied

3

The claimant testified at the administrative hearing that the highest grade he completed in
school was eighth grade, but reported on his Disability Reports that he completed twelfth grade
(Tr. 49, 193, 240).

-3-

review, so the ALJ’s written opinion is the Commissioner’s final decision for purposes of
this appeal. See 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 found that
the claimant had the residual functional capacity (“RFC”) to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with frequent, but not constant,
handling and fingering with the right upper extremity, and a sit/stand option defined as a
temporary change in position from sitting to standing and vice versa with no more than
one change in position every half-hour without leaving the workstation so as to not
diminish pace or production (Tr. 17). He further imposed the psychologically-based
limitations that the claimant could perform simple, repetitive tasks with routine
supervision, and could have occasional contact with co-workers and supervisors, but no
work-related contact with the general public (Tr. 17). 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 in the national economy, e. g.,
document preparer, clerical mailer, and touch-up screener (Tr. 25).
Review
The claimant contends that the ALJ erred by failing to properly: (i) account for his
moderate difficulty in maintaining concentration, persistence, or pace; and (ii) evaluate
the opinion of counselor Rachel Hattensty. The Court agrees with the claimant’s second
contention, and the decision of the Commissioner must therefore be reversed.

-4-

The ALJ found that the claimant had the severe impairments of back pain, right
hand neuropathy, diabetes, hypertension, obesity, anxiety, mood disorder, bipolar
disorder, personality disorder, substance abuse by history, and depression (Tr. 15). The
medical evidence related to the claimant’s mental impairments reveals that his treatment
largely consisted of medication management from varying providers at the Choctaw
Nation Medical Center (“CNMC”) (Tr. 354-98, 458-84, 533-630, 683-714, 758-61, 772858). His mental health treatment at CNMC dates back as far as May 2007, and his
diagnoses included panic disorder, anxiety, depression, bipolar disorder, and personality
disorder not otherwise specified (Tr. 394-98, 483, 535). In addition, the claimant was
treated in October 2012, December 2013, and February 2014 for suicide attempts, but did
not require inpatient treatment (Tr. 495, 501-03, 644, 656-57, 663-64, 675).
Nurse Practitioner Karen Taylor consistently treated the claimant between April
2012 and October 2014 (Tr. 465-74, 533-35, 550-53, 570-72, 584-88, 772-91). On April
10, 2012, Ms. Taylor noted the claimant had loud and slightly pressured speech; an
animated, euthymic, and anxious affect; goal-directed and relevant thought processes;
intact memory; poor insight and judgment; and fair impulse control (Tr. 473). She also
noted the claimant obsessed about being overmedicated while he was incarcerated
(Tr. 473). Ms. Taylor provisionally diagnosed the claimant with bipolar disorder not
otherwise specified and anxiety not otherwise specified, and assigned a Global
Assessment of Functioning (“GAF”) score of sixty (Tr. 473).

At a follow-up

appointment on July 17, 2012, Ms. Taylor noted the claimant’s attention/concentration
seemed impaired and she assigned a GAF score of fifty-six (Tr. 466). By March 2013,
-5-

the claimant reported his mood stabilized once his brother moved out of the family home
(Tr. 552). Ms. Taylor assigned a GAF score of sixty (Tr. 552). At an appointment the
following month, the claimant reported a depressed mood and stated his prescribed antidepressant medications had never effectively treated his depression (Tr. 533). In a letter
dated July 21, 2014, Ms. Taylor stated she had treated the claimant for many years and
that his prescribed psychotropic medications could potentially cause some central
nervous system depression and could impair concentration/focus (Tr. 763).
The claimant established care with counselor Rachel Lee Hattensty on January 8,
2013 (Tr. 573). At this initial appointment, Ms. Hattensty noted the claimant had a bright
affect and was cooperative but somewhat labile (Tr. 573).

The claimant reported

increasing problems due to family conflict within his home, and Ms. Hattensty
encouraged him to identify ways to improve self-care (Tr. 573).

At a follow-up

appointment on April 9, 2013, Ms. Hattensty noted the claimant appeared “bright and
comfortable, similar to past visits,” diagnosed him with mood disorder not otherwise
specified and cluster b traits, and assigned a GAF score of sixty (Tr. 628-30). In a letter
dated July 31, 2014, Ms. Hattensty indicated the claimant’s diagnoses included mood
disorder and generalized anxiety disorder, both of which affected him daily (Tr. 762).
She opined that the claimant could not do work with the public or with moderate to high
stress, and could not cope with co-workers (Tr. 762).
Dr. Kathleen Ward performed two consultative mental status examinations of the
claimant (Tr. 399-402, 504-10). At the September 2010 examination, Dr. Ward noted the
claimant was somewhat effusive and dramatic in presentation, seemed to exaggerate
-6-

symptoms to at least some degree, and seemed to search for the right answer to questions,
rather than respond candidly (Tr. 400-01). She indicated his thought processes were
logical and organized; he had no bizarre thought content or delusions; he was oriented to
time, date, and place; his intellectual abilities were estimated to be within the average
range; and he had no significant deficits in social judgment and problem solving
(Tr. 401). Dr. Ward’s impression was that the claimant was a questionable historian, and
while she was certain he had some mental health concerns, and likely had some difficulty
adjusting to his medications, she was unable to accurately assess his level of disability
(Tr. 401-02). Similarly, at a December 2012 consultative examination, Dr. Ward noted
the claimant appeared to be a marginally reliable historian, but indicated that mood
disorder, substance use issues, and personality disorders were suggested in discussion and
demeanor (Tr. 506).
State agency psychologist Janice B. Smith reviewed the record and completed a
Mental Residual Functional Capacity Assessment (“MRFC”) on October 4, 2010
(Tr. 404-06).

She found that the claimant was markedly limited in his ability to

understand, remember, and carry out detailed instructions, and to interact appropriately
with the general public, but was otherwise not significantly limited (Tr. 404-05). She
concluded that the claimant could perform simple tasks with routine supervision, relate to
supervisors and peers on a superficial work basis, and adapt to a work situation, but could
not relate to the general public (Tr. 406).
At the administrative hearing, the claimant testified that his bipolar disorder was
the most significant limitation that prevented him from working (Tr. 50). He testified
-7-

that because of it, he cannot get along with anybody, gets nervous and anxious around
other people, and his mind wanders (Tr. 50). He then stated the next most significant
issue was his medication, which makes him tired and unable to function (Tr. 51). He
stated that he would fall asleep if he were working and took all of his medication (Tr. 61).
As to his memory, the claimant testified that he is forgetful, and makes lists and sets
reminders for everything he does, including grocery shopping and taking medication
(Tr. 61). He indicated that his hallucinations and anger issues improved recently due to a
change in medication (Tr. 46, 63).
In his written opinion, the ALJ summarized the claimant’s testimony, the medical
records, and the third party function reports. In discussing the opinion evidence, the ALJ
noted Ms. Hattensty was not an acceptable medical source, and gave little weight to her
opinion that the claimant was unable to work in “moderate to high stress,” finding such
limitation was vague because it did not describe the specific source of stress such as task
complexity or production pace (Tr. 23). As to the claimant’s social difficulties, the ALJ
concluded that the claimant could control his behavior, but occasionally experienced
aggravated irritability when triggered by a specific, acute stressor (Tr. 23). Therefore, he
afforded some weight to Ms. Hattensty’s opinion that the claimant could not work with
the public since it limited the risk of a trigger, but little weight to her opinion that he
could not work with co-workers since the claimant would be familiar with his co-workers
due to regular interaction (Tr. 23). The ALJ then gave significant weight to the state
agency psychologist’s opinion, but further limited the claimant to simple, repetitive tasks
with routine supervision in light of the claimant’s allegations of difficulty with memory
-8-

and concentration, and to occasional interaction with co-workers and supervisors in light
of his allegations of social difficulty, but cooperative and appropriate behavior at
appointments (Tr. 23). The ALJ seemed to adopt Dr. Ward’s opinion as to the claimant’s
reliability, but did not assign her opinion any specific weight (Tr. 20).
Social Security regulations provide for the proper consideration of “other source”
opinions such as the one provided by Ms. Hattensty. See, e. g., Frantz v. Astrue, 509
F.3d 1299, 1302 (10th Cir. 2007) (noting that other source opinions should be evaluated
with the relevant evidence “on key issues such as impairment severity and functional
effects” under the factors in 20 C.F.R. §§ 404.1527, 416.927), quoting Soc. Sec. Rul. 0603p, 2006 WL 2329939 at *3, *6 (Aug. 9, 2006) (“[T]he adjudicator generally should
explain the weight given to opinions from these ‘other sources,’ or otherwise ensure that
the discussion of the evidence in the determination or decision allows a claimant or
subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have
an effect on the outcome of the case.”). The factors for evaluating opinion evidence from
“other sources” include: (i) the length of the relationship and frequency of contact;
(ii) whether the opinion is consistent with other evidence; (iii) the extent the source
provides relevant supporting evidence; (iv) how well the source's opinion is explained;
(v) whether claimant's impairment is related to a source's specialty or area of expertise;
and (vi) any other supporting or refuting factors. See Soc. Sec. Rul. 06–03p, at *4–5;
20 C.F.R. § 404.1527(c), 416.927(c). The ALJ noted at the outset of step four that he
considered the opinion evidence in accordance with SSR 06-03p, but made no reference
to these factors in connection with Ms. Hattensty’s MSS, and it is therefore unclear
-9-

whether he considered any of them. See, e. g., Anderson v. Astrue, 319 Fed. Appx. 712,
718 (10th Cir. 2009) (“Although the ALJ’s decision need not include an explicit
discussion of each factor, the record must reflect that the ALJ considered every factor in
the weight calculation.”). This analysis was particularly important because Ms. Hattensty
was the claimant’s treating counselor for more than a year prior to issuing her MSS, and
her opinion is the only one in the record from a treating provider, albeit a treating “other
source” provider. Furthermore, there is nothing in the record to support a finding that
“familiarity” with co-workers would overcome the claimant’s difficulty in coping with
them, and the ALJ’s assumption that it would is not supported by the record, suggesting
an improper approach to assessing the evidence.
Because the ALJ failed to properly consider Ms. Hattensty’s opinion, the decision
of the Commissioner must be reversed and the case remanded to the ALJ for further
analysis. If such analysis results in any changes to the claimant’s RFC, the ALJ should
re-determine what work the claimant can perform, if any, and ultimately whether he is
disabled.
Conclusion
In summary, the Court FINDS that correct legal standards were not applied by the
ALJ, and the Commissioner’s decision is therefore not supported by substantial evidence.
The Commissioner’s decision is accordingly REVERSED and the case REMANDED for
further proceedings consistent herewith.

-10-

DATED this 22nd day of September, 2017.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

-11-