Noland 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
MARTIN NOLAND,
)
)
Plaintiff,
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of the Social )
Security Administration, 1
)
)
Defendant.
)
Case No. CIV-16-249-SPS
OPINION AND ORDER
The claimant Martin Noland requests judicial review pursuant to 42 U.S.C.
§ 405(g) of the decision of the Commissioner of the Social Security Administration
denying his application for benefits under the Social Security Act.
He appeals the
decision of the Commissioner and asserts that the Administrative Law Judge (“ALJ”)
erred in determining he was not disabled. As discussed below, the Commissioner’s
decision is hereby REVERSED and the case 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
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.
Social Security Act “only if 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 in the national economy[.]” 42 U.S.C. § 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
Judicial review of the Commissioner’s determination is limited in scope by 42
U.S.C. § 405(g). This Court’s review is limited to two inquiries: 1) whether the decision
was supported by substantial evidence, and 2) whether the correct legal standards were
applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997) [citation omitted].
The term “substantial evidence” requires “‘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). However, the Court may not reweigh the
2
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 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. Id. §§ 404.1521, 416.921. If the
claimant is engaged in substantial gainful activity, or if his 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), he is determined to be disabled
without further inquiry. Otherwise, the evaluation proceeds to step four, where the claimant
must establish that he lacks the residual functional capacity (RFC) to return to his 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 his 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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evidence nor substitute its discretion for that of the agency. See Casias v. Secretary of
Health & Human Services, 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, 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 March 13, 1962, and was fifty-two years old at the time
of the administrative hearing (Tr. 79). He graduated high school, and has worked as a
production machine tender, maintenance repairer, construction worker I, and a delivery
driver (Tr. 67, 79). The claimant alleges he has been unable to work since July 18, 2012,
due to liver cancer stage 2, liver disease, type II diabetes, high blood pressure,
depression, and Hepatitis B (Tr. 249).
Procedural History
On July 30, 2012, 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. His
applications were denied. ALJ Doug Gabbard, II, conducted an administrative hearing
and determined that the claimant was not disabled in a written decision dated August 8,
2014 (Tr. 57-69). The Appeals Council denied review, so the ALJ’s decision represents
the Commissioner’s final decision 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 found that the claimant had the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he
was restricted to semi-skilled work, which requires understanding, remembering, and
carrying out some detailed skills but does not require doing more complex work duties;
he is able to have superficial interpersonal contact with supervisors and co-workers; he
can have only occasional contact with the general public; and he can attend and
concentrate for extended periods with normal breaks (Tr. 63). The ALJ thus 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, e. g., housekeeping cleaner and
small product assembler (Tr. 67-69).
Review
The claimant alleges that the ALJ erred in assessing his subjective complaints,
particularly with regard to his mental impairments. The Court agrees, and the decision of
the Commissioner should therefore be reversed.
The ALJ determined that the claimant had the severe impairments of chronic liver
disease, status post liver cancer, and affective disorder (Tr. 60). Evidence related to the
claimant’s mental impairments indicates that the claimant went to the emergency room a
number of times for chest discomfort (Tr., e. g., 515, 627, 704). Heart problems were
ruled out, although he was noted to have anxiety (Tr. 515). On February 12, 2014, the
claimant was detained for an emergency detention period under mental health laws after
reporting feelings of helplessness and hopelessness and contemplating suicide (Tr. 769-4-
786). On February 19, 2014, his discharge diagnosis was major depressive disorder,
single episode, severe, specified as with psychotic behavior (Tr. 769). Inpatient treatment
notes reflect that the claimant was compliant with treatment and that he improved while
in the facility (Tr. 778-785).
The claimant then continued to receive outpatient mental health treatment through
Mental Health Services of Southern Oklahoma (Tr. 794-810). In April 2014, notes
reflect that the counselor was working with the claimant to take small steps in getting out
of his house (Tr. 798). In May 2014, a health screening indicated reports from the
claimant that he was having thoughts of hurting others, a loss of pleasure in most
activities, anxiety all the time, and panic attacks three or four times a week and made
worse around crowds (Tr. 808). He also reported problems with short term memory and
the ability to concentrate (Tr. 808). He was given a fair prognosis due to his health issues
and lack of treatment history (Tr. 808).
On March 23, 2013, Dr. Parind Shah conducted a psychiatric evaluation of the
claimant (Tr. 461-462).
Dr. Shah assessed the claimant with depressive disorder,
recurrent, moderate without suicidality or psychotic features, and that he believed the
claimant’s symptoms would improve over the course of the next twelve months (Tr. 462).
He was alert and oriented, could not perform multiplication, and abstract reasoning and
judgment were intact.
State reviewing physicians found that the claimant had the severe impairment of
affective disorders, and that he was moderately limited in the ability to carry out detailed
instructions, maintain attention and concentration for extended periods, and interact
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appropriately with the general public (Tr. 134-135). This physician concluded that the
claimant could understand, remember, and perform simple and some complex tasks,
relate to others on a superficial work basis, and adapt to a work situation (Tr. 135).
Evidence submitted to the Appeals Council reflects that through December 2015,
the claimant reported continued depression, anxiety, and anger (Tr. 19). He had another
bout of suicidal ideation on October 6, 2015, and was hospitalized for it after missing
several mental health treatment appointments and running out of his medications (Tr. 2333, 42).
In his written opinion, the ALJ summarized the claimant’s hearing testimony, as
well as the medical evidence in the record. Specifically, he noted that the claimant’s
depression had developed alongside his liver impairment, and noted the lack of mental
health evidence as support for sending the claimant for Dr. Shah’s evaluation (Tr. 65).
He further noted the claimant’s hospitalization in 2014, noting his improvement upon
discharge but also stating that the depression did continue despite medications (Tr. 66).
He stated that the depression did not interfere with the claimant’s memory or orientation
and nothing in the record suggested that it was disabling on its own or in combination
(Tr. 66). He then found the claimant not credible, stating that he first pursued mental
health treatment after the alleged onset date and that the “brief period of treatment does
nothing to bolster his claims” (Tr. 66) Noting the claimant’s financial limitations, the
ALJ nevertheless stated that the record lacked emergency and clinical care that might be
expected with disabling levels of depression, and that the ALJ’s observations of the
claimant’s physical condition at the administrative hearing undermined the claimant’s
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asserted decrease in physical ability as well (Tr. 66). He gave great weight to the state
reviewing physician opinion, which pre-dated all of the mental health treatment evidence
except for Dr. Shah’s consultative exam, then stated without explanation that the later
evidence from the claimant’s hospitalization supported “the social restrictions” (Tr. 67).
His final comment with regard to the claimant’s impairments was that his depression
restricted his ability to focus on tasks and interact with others (Tr. 67).
The claimant argues that the ALJ failed to properly assess his subjective
complaints, particularly because the ALJ improperly found he failed to seek medical
treatment despite the fact that mental illness can cause a claimant to not comply with
medications or treatment.
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.
The Commissioner asserts that,
because the ALJ’s opinion pre-dated the new guidance, the previous standards still apply.
Moreover, the Commissioner agrees that blaming a claimant for failing to seek treatment
of a mental illness is a “thorny issue,” but nonetheless asserts that even if it was error to
make such a finding, the ALJ gave other reasons for finding the claimant not credible.
But even under the old standard, this is error. “Because a credibility assessment requires
consideration of all the factors in combination, when several of the factors relied upon by
the ALJ are found to be unsupported or contradicted by the record, [the Court is]
precluded from weighing the remaining factors to determine whether they, in themselves,
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are sufficient to support the credibility determination.” Bakalarski v. Apfel, 1997 WL
748653 at *3 (10th Cir. 1997).
Because the Court finds that the ALJ erred in his analysis under either standard,
the case must be reversed and remanded. See also Frantz v. Astrue, 509 F.3d 1299, 1302
(10th Cir. 2007) (“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.”) (quoting Sloan v. Astrue, 499 F.3d
883, 889 (8th Cir. 2007).
The Court further finds that a few more words on the ALJ’s analysis at step four
are necessary. The RFC assessment (which accounts for the medical evidence and the
claimant’s subjective complaints) must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e. g., laboratory
findings) and nonmedical evidence (e. g., daily activities, observations).” Soc. Sec. Rul.
96-8p, 1996 WL 374184, at *7 (July 2, 1996). “When the ALJ has failed to comply with
SSR 96-8p because he has not linked his RFC determination with specific evidence in the
record, the court cannot adequately assess whether relevant evidence supports the ALJ’s
RFC determination.” Jagodzinski v. Colvin, 2013 WL 4849101, at *2 (D. Kan. Sept. 11,
2013), citing Brown v. Commissioner of the Social Security Administration, 245 F. Supp.
2d 1175, 1187 (D. Kan. 2003). Here, the ALJ failed to cite to any evidence in the record
to connect his RFC findings with the evidence related to the claimant’s mental
impairment, appearing at times to even question the severity of the impairment entirely.
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Furthermore, the ALJ appeared to largely discount the claimant’s mental
impairment based on his improvement upon discharge from inpatient hospitalization for
his mental impairments. In doing so, however, the ALJ disregarded the highly structured
environment the claimant experienced during his first hospitalization. See, e. g., 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(6)(b) (“[A claimant’s ability to complete
tasks in settings that are highly structured, or that are less demanding or more supportive
than typical work settings does not necessarily demonstrate [a claimant’s] ability to
complete tasks in the context of regular employment during a normal workday or
workweek.”).
This conclusion is bolstered by the evidence submitted to the Appeals Council,
which demonstrates that the claimant was hospitalized again for very similar suicidal
ideation the following year. Even though the ALJ did not receive this evidence prior to
issuing his decision, the Appeals Council was required to properly consider this evidence
if it was: (i) new, (ii) material, and (iii) “related to the period on or before the date of the
ALJ’s decision,” see Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004),
quoting Box v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995), but failed to do so here.
Evidence is new if it “is not duplicative or cumulative,” and this evidence qualifies as
such. Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003), quoting Wilkins v. Sec’y,
Dep’t of Health & Human Svcs., 953 F.2d 93, 96 (4th Cir. 1991). Second, evidence is
material “if there is a reasonable possibility that [it] would have changed the outcome.”
Threet, 353 F.3d at 1191, quoting Wilkins, 953 F.2d at 96.
The evidence must
“reasonably [call] into question the disposition of the case.” Id. See also Lawson v.
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Chater, 83 F.3d 432, 1996 WL 195124, at *2 (10th Cir. April 23, 1996) (unpublished
table opinion). Here, this evidence supports the serious nature of the claimant’s mental
impairments, and calls into question the ALJ’s decision, particularly in light of the
claimant’s combination of impairments. In finding the claimant could perform a limited
range of light work, the ALJ relied, at least in part, on the sparse nature of the claimant’s
mental health treatment records.
Finally, the evidence is chronologically relevant because it pertains to the time
“period on or before the date of the ALJ’s Decision.” Kesner v. Barnhart, 470 F. Supp.
2d 1315, 1320 (D. Utah 2006), citing 20 C.F.R. § 404.970(b). The claimant meets the
insured status through December 31, 2016, so all of the records are relevant to the
claimant’s condition as to the existence or severity of her impairments. See Basinger v.
Heckler, 725 F.2d 1166, 1169 (8th Cir. 1984) (“[M]edical evidence of a claimant’s
condition subsequent to the expiration of the claimant’s insured status is relevant
evidence because it may bear upon the severity of the claimant’s condition before the
expiration of his or her insured status.”), citing Bastian v. Schweiker, 712 F.2d 1278,
1282 n.4 (8th Cir. 1983); Boyd v. Heckler, 704 F.2d 1207, 1211 (11th Cir. 1983);
Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981); Poe v. Harris, 644 F.2d 721, 723
n. 2 (8th Cir. 1981); Gold v. Secretary of H.E.W., 463 F.2d 38, 41-42 (2d Cir. 1972);
Berven v. Gardner, 414 F.2d 857, 861 (8th Cir. 1969).
The evidence presented by the claimant after the administrative hearing thus does
qualify as new and material evidence under C.F.R. §§ 404.970(b) and 416.1470(b), and
the Appeals Council considered it (Tr. 2), so the newly-submitted evidence “becomes
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part of the record . . . in evaluating the Commissioner’s denial of benefits under the
substantial-evidence standard.” Chambers, 389 F.3d at 1142, citing O’Dell v. Shalala, 44
F.3d 855, 859 (10th Cir. 1994). The ALJ had no opportunity to perform the proper
analysis, and while the Appeals Council considered this new evidence, they failed to
analyze it in accordance with the aforementioned standards.
In light of this new
evidence, the Court finds that the decision of the Commissioner is not supported by
substantial evidence because the ALJ may not have had the opportunity to perform a
proper analysis of the newly-submitted evidence in accordance with the authorities cited
above, and the Commissioner’s decision must therefore be reversed and the case
remanded for further proceedings. On remand, the ALJ should properly evaluate all the
evidence in the record. If the ALJ’s subsequent 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
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 25th day of September, 2017.
____________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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