Woods 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
SHELLY A. WOODS,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-16-200-KEW

OPINION AND ORDER

Plaintiff Shelly A. Woods (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 41 years old at the time of the ALJ’s decision.
Claimant obtained her GED and some college.

Claimant has worked in

the past as a certified nurse’s aide. Claimant alleges an inability
to work beginning January 1, 2011 due to limitations resulting from
back

problems,

foot

pain

after

anxiety/panic attacks.

3

a

broken

heel

injury,

and

Procedural History
On

November

15,

2012,

Claimant

protectively

filed

for

disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) and for supplemental security income benefits under Title XVI
(42 U.S.C. § 1381, et seq.) of the Social Security Act. Claimant’s
On

applications were denied initially and upon reconsideration.

March 18, 2014 and August 25, 2014, an administrative hearing was
held before Administrative Law Judge (“ALJ”) J. Frederick Gatzke by
video with Claimant appearing in McAlester, Oklahoma and the ALJ
presiding from Paris, Texas.

By decision dated December 2, 2014,

the ALJ denied Claimant’s requests for benefits.

The Appeals

Council denied review of the ALJ’s decision on March 28, 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, she did not meet a listing and retained the residual
functional

capacity

(“RFC”)

to

perform

sedentary

limitations.
Errors Alleged for Review

4

work

with

Claimant asserts the ALJ committed error in (1) reaching an RFC
which was not supported by substantial evidence; and (2) finding
jobs existed that Claimant could perform at step five.

RFC Determination
In his decision, the ALJ found Claimant suffered from the
severe impairments of remote history of fracture of the left
calcaneus in 2008, obesity, degenerative disc disease of the
cervical spine, lumbar disc disease, bipolar disorder, depression,
post-traumatic stress disorder (“PTSD”), anxiety, and Hepatitis C
(not under current treatment).

(Tr. 14).

The ALJ determined

Claimant retained the RFC to perform sedentary work, except he
restricted Claimant to only incidental public contact and no more
than detailed work instructions.

(Tr. 15).

After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of document scanner,

address clerk, and product inspector, all of which the ALJ found
existed in sufficient numbers in both the regional and national
economies. (Tr. 22). As a result, the ALJ determined Claimant was
not disabled from January 1, 2011 through the date of the decision.
Id.
Claimant contends the RFC is not supported as a result of a
number of alleged errors.

Claimant first states that the ALJ

5

failed to properly evaluate the opinion of who she characterizes as
one of her treating physicians, Dr. John Wellman.

Dr. Wellman

completed a medical source statement dated August 9, 2014.

He

opined Claimant could lift/carry less than ten pounds, stand/walk
less than two hours in an eight hour workday, must periodically
alternate sitting and standing, and experiences limitations in
pushing/pulling with her upper and lower extremities.
Dr. Wellman also found Claimant could never climb stairs,
ladders, ropes, or scaffolds, balance, crouch, or crawl.

Claimant

was also determined to be limited in reaching, handling, fingering,
and feeling.

She should not be exposed to temperature extremes,

vibration, or hazards. Dr. Wellman attributed these limitations to
a bulging disc at C3-C4 which contacted the subarachnoid space, a
heel fracture and reflex sympathetic dystrophy, compression of the
cervical spine, chronic pain exacerbated by pressure, spasms in the
cervical and thoracic spines due to prolonged sitting requiring a
change in position.

(Tr. 805-07).

The ALJ could not find a treatment record from Dr. Wellman
and, therefore, concluded he was not a treating physician. He also
criticized Dr. Wellman’s citation to “old evidence” from 2008 and
2009 to support his findings.

The ALJ stated that Claimant

returned to substantial gainful activity after these tests were

6

performed.

He also found no evidence in the record to the spinal

cord compression to which Dr. Wellman referred. The ALJ determined
Claimant’s activities of daily living did not support the level of
limitations

set

out

in

Dr.

Wellman’s

Wellman’s opinion “little weight.”

opinion.

He

gave

Dr.

(Tr. 20).

As for Dr. Wellman’s treating physician status, Claimant
refers the Court to a treatment record from June of 2015 which is
attached to her brief which indicates Dr. Wellman was with the St.
Madron Medical Clinic (previously the Wellness Clinic of Roland),
a facility from which Claimant sought treatment.

This record is

certainly outside of the relevant period. Claimant does not direct
the Court to any document in the administrative record which
indicates Dr. Wellman rendered treatment to Claimant during the
period under consideration.

The ALJ did not commit error in

declining to recognize Dr. Wellman as a treating source and
declining to give his opinion controlling weight.
Barnhart,

See Doyal v.

331 F.3d 758, 763 (10th Cir. 2003).

The ALJ did not give Dr. Wellman’s opinion greater weight
because the evidence upon which he relied was aged but, more
importantly, Claimant worked after the testing was performed. This
activity would be appropriate for the ALJ to rely upon in rejecting
Dr. Wellman’s opinion.

See 20 C.F.R. § 404.1572.

7

The ALJ also rejected Dr. Wellman’s opinion because it was not
consistent with Claimant’s admitted activities.

As Defendant

indicates, in August of 2014, Dr. Tracy M. Baker noted after an
examination of Claimant that she had “[n]o physical disability.
Severe visual impairment.
(Tr. 809).

Normal activities of daily living.”

Claimant also reported that she performed significant

activities of daily living.

(Tr. 253-56, 451-52).

The level of

these activities also belie Dr. Wellman’s statements of limitation.
The ALJ also found the medical evidence contradicted Dr.
Wellman’s findings.

He reported a cord compression on the right

when the remainder of the medical treatment records do not reveal
such a condition.

Again, the inconsistency in the record and Dr.

Wellman’s report formed a reasonable and reliable bases for giving
the opinion diminished weight.
Claimant also contends the ALJ improperly assessed the opinion
provided by Dr. Theresa Horton, a licensed psychologist engaged as
a consultative examiner in this case. Dr. Horton examined Claimant
on February 19, 2013 and diagnosed her with Dysthymia, early onset;
Major

Depressive

Disorder,

Recurrent,

irritability; and Panic Disorder.
Personality Traits.

(Tr. 708).

stating

8

Moderate

with

chronic

She also demonstrated Dependent
She concluded her report by

Ms. Woods appears capable of understanding, remembering
and managing simple and complex instructions and tasks,
She likely will struggle with ability to do so
successfully in most occupational settings at this time.
She
likely
would
benefit
from
more
intense
cognitive/behavioral focused counseling in order to see
any marked decrease in her anxious symptoms.
Id.
The ALJ gave Dr. Horton’s opinion concerning the likelihood
she would struggle in an occupational setting “little weight.”

He

found the opinion was based upon Claimant’s subjective complaints
and presentation at the examination.

He also found Claimant’s

statement that she felt anxious when socializing or being in public
places was inconsistent with other statements in the record which
indicated Claimant had improved her life after treatment for panic.
(Tr. 20).
“[T]he fact that a medical source relies on a plaintiff's
subjective

reports

of

her

symptoms

provides

no

basis

for

Gonzales v. Colvin, 69 F. Supp.

discrediting a medical opinion.”

3d 1163, 1170-71 (D. Colo. 2014) citing Nieto v. Heckler, 750 F.2d
59, 60-61 (10th Cir. 1984); Gutierrez v. Astrue, 2008 WL 5246300,
at

4

(D.Colo.

Dec.

15,

2008).

“The

ALJ's

own

disbelief

of

plaintiff's subjective complaints provides no basis on which to
discredit an otherwise valid medical source opinion, since the ALJ
may not substitute his lay opinion on the effect of medical
9

findings for that of a medical professional.” Id. citing Hamlin v.
Barnhart, 365 F.3d 1208, 1221 (10th Cir. 2004); McGoffin v.
Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002)(“[A]n ALJ may not
make speculative inferences from medical reports and may reject a
treating

physician's

opinion

outright

only

on

the

basis

of

contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”).
The ALJ should not have merely rejected the opinion out of
hand based upon Dr. Horton’s reliance upon Claimant’s subjective
statements.

Indeed, psychological testing will largely be based

upon such statements and the examiner’s professional expertise to
ferret out any malingering or fakery.

Although Defendant argues

the ALJ did not reject the opinion because it was based upon
Claimant’s subjective statements, that is precisely the basis for
rejection the ALJ expressly provided. On remand, the ALJ shall reevaluate

Dr.

Horton’s

opinion

and

consider

her

professional

conclusions.
Claimant asserts the ALJ failed to find her physical and
mental conditions imposed a sufficiently severe limitation upon her
ability to engage in basic work activities.

As for her physical

condition, Claimant suggests that her foot and back conditions
precluded her from standing/walking for the two hours provided by

10

sedentary work.

Nothing in the medical record suggests the level

of restriction Claimant now argues.

The focus of a disability

determination is on the functional consequences of a condition, not
the mere diagnosis. See e.g. Coleman v. Chater, 58 F.3d 577, 579
(10th Cir. 1995)(the mere presence of alcoholism is not necessarily
disabling, the impairment must render the claimant unable to engage
in any substantial gainful employment.); Higgs v. Bowen, 880 F.2d
860, 863 (6th Cir. 1988)(the mere diagnosis of arthritis says
nothing about the severity of the condition), Madrid v. Astrue, 243
Fed.Appx. 387, 392 (10th Cir. 2007)(the diagnosis of a condition
does not establish disability, the question is whether an impairment
significantly limits the ability to work); Scull v. Apfel, 221 F.3d
1352 (10th Cir. 2000)(unpublished), 2000 WL 1028250, *1 (disability
determinations turn on the functional consequences, not the causes
of a claimant's condition).

additional

restrictions

The ALJ did not err in failing to find
attributable

to

Claimant’s

physical

condition.
As for Claimant’s mental condition and the effect it may have
upon Claimant’s ability to engage in basic work activity, the ALJ
shall re-evaluate her mental status once he has properly considered
Dr. Horton’s opinion.
Claimant contends the ALJ improperly assessed her credibility.

11

She argues the ALJ failed to consider her attempts to return to
work, her treatment history, and medications for pain in assessing
the credibility of her statements.
Claimant’s

testimony

of

limiting

The ALJ properly recited
conditions

contradictions with the statements in the record.

and

indicated

(Tr. 21).

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.

The ALJ properly analyzed and considered Claimant’s testimony and
no error is attributed to his credibility analysis.
The

ALJ

also

considered

the

third

party

statement

of

Claimant’s daughter but did not base “afford[ing] significant
consideration or weight” to the statement upon its content but
rather

upon

the

subjective

statement

of

Claimant

consistency with the objective medical record.

and

its

On remand, he

should set forth the specific basis for the weight given to the
daughter’s statement and consider its content. Soc. Sec. R. 85-16.
Step Five Evaluation
Claimant

asserts

the

ALJ

failed

12

to

include

all

of

her

impairments in the hypothetical questions posed to the vocational
expert employed in this case.

Since the ALJ is re-evaluating

Claimant’s mental condition on remand, he shall also consider any
modifications to the questions posed to the expert in order to
accurately represent Claimant’s limitations contained in the RFC.
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 26th day of September, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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