Scrivner v. Social Security Administration

Filing 19

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
JEWELL A. SCRIVNER,

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

Case No. CIV-16-264-KEW

OPINION AND ORDER

Plaintiff Jewell A. Scrivner (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 51 years old at the time of the ALJ’s decision.
Claimant

completed

her

education

through

the

eleventh

grade.

Claimant has worked in the past as a waitress, home health aide,
cook, cashier, and certified nurse assistant.

Claimant alleges an

inability to work beginning February 1, 2011 due to limitations
resulting

from

migraine

headaches,

3

back

problems,

dizziness,

tingling in the legs, mental problems, chest pain, and high blood
pressure.
Procedural History
On May 14, 2008, 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 applications
were

denied

initially

and

upon

After

reconsideration.

an

administrative hearing, an Administrative Law Judge (“ALJ”) denied
benefits.

The denial was appealed to the United States District

Court for the Northern District of Oklahoma, which reversed the
ALJ’s decision and remanded the case for further proceedings.
While

the

appeal

was

pending,

Claimant

filed

additional

applications for Title II and XVI benefits on November 18, 2012 and
January 15, 2013, respectively.

On remand, the ALJ consolidated

the earlier applications filed in 2008 with the later applications
for consideration.

On July 1, 2014, ALJ Deborah Rose conducted an

additional administrative hearing on Claimant’s applications.

By

decision dated August 29, 2014, the ALJ denied Claimant’s requests
for benefits. The Appeals Council denied review on April 15, 2016.
As a result, the decision of the ALJ represents the Commissioner’s
final decision for purposes of further appeal.

4

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. She 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 (1) failing to
properly weigh, discuss, evaluate, and consider all of the medical
evidence; (2) failing to perform a proper analysis at steps four and
five; and (3) failing to properly apply the Medical-Vocational
Guidelines.

Consideration of the Medical Evidence
In her decision, the ALJ found Claimant suffered from the
severe impairments of degenerative joint disease of the knees,
bipolar disorder, and a history of polysubstance abuse. (Tr. 818).
The ALJ found Claimant retained the RFC to perform light work.

In

so doing, the ALJ determined Claimant could lift/carry 20 pounds
occasionally and ten pounds frequently, stand/walk for six hours in
an eight hour workday, and sit for six hours in an eight hour
workday.

Claimant was found to have only occasional public

interaction and could have superficial and incidental interaction

5

with co-workers and supervisors for work purposes.

Claimant was

found by the ALJ to be able to adapt to most routine workplace
changes and was able to perform simple, routine tasks.

(Tr. 820).

After consultation with a vocational expert, the ALJ found
Claimant

could

perform

the

representative

jobs

of

production

inspector, press machine operator, and bench assembler, all of
which the ALJ determined existed in sufficient numbers in both the
regional and national economies.

(Tr. 828).

As a result, the ALJ

concluded Claimant was not disabled from February 1, 2011, the
amended alleged onset date, through the date of the decision.

Id.

Claimant asserts the ALJ failed to properly consider the
opinion of Dr. Edgar J. Kranau, who performed a psychological
evaluation of Claimant on June 16, 2014.

His evaluation included

conducting a clinical interview of Claimant, performing a mental
status examination, administering the Millon Behavioral Medicine
Diagnostic, Center for Epidemiologic Studies Depression Scale, and
reviewing the records.
was

suffering

from

(Tr. 1430).

“significant

Dr. Kranau concluded Claimant
levels

of

depression.”

Her

attention and concentration were adequate and her memory was within
normal limits for her age group.

Claimant’s cognitive functioning

appeared to be in normal limits for her age group as well.
psychiatric

symptoms

were

well

6

controlled

with

Her

medication.

Claimant’s coping skills were somewhat limited but she had crafted
a lifestyle which minimized stress in her life.
Dr.

Kranau

noted

Claimant

had

been

(Tr. 1431).

suffering

from

a

psychiatric disorder for many years, with the record suggesting
that she had considered suicide many times and attempted it on many
occasions which required hospitalization.
type behavior.

She had suffered manic-

She had been under psychiatric care for many years

and had been diagnosed with bipolar disorder.

Id.

Dr. Kranau then concluded that Claimant “is unable to maintain
employment” and had been “unable to work on a consistent basis
since prior to June 30, 2011.”
I disorder.

He diagnosed Claimant with bipolar

Id.

The ALJ found that Dr. Kranau’s opinion was “prepared simply
to enhance the claimant’s eligibility for benefits.”

She went

further, however, and stated
The objective findings only show normal mental
functioning, other than somewhat limited coping skills
and a history of significant levels of depression and
suicide attempts.
However, there is nothing severe
enough to support his opinion that she has been unable to
maintain employment since June 30, 2011, due to a mental
impairment. He reported severe and marked limitations in
many areas. I give this no weight. It is contradicted
by the findings of Snider, the treating records from
Family and Children’s Services, and the record as a
whole.
(Tr. 826).
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This Court agrees with Claimant that rejecting a medical
opinion on the basis that it was intended to “enhance” Claimant’s
application for benefits smacks of the old “physician’s report
appears to have been prepared as an accommodation to the patient”
statement that has been roundly rejected as a basis for reducing
the weight afforded a physician’s opinion.

Miller v. Chater, 99

F.3d. 972, 976 (10th Cir. 1996) citing Frey v. Bowen, 816 F.2d 508,
515 (10th Cir. 1987).

This reasoning, however, was not the sole

basis for rejecting Dr. Kranau’s opinion.
The primary basis for the ALJ’s reduction of Dr. Kranau’s
opinion was the conflict with his own notes from his examination
and testing of Claimant.

As stated, Dr. Kranau’s findings on

attention and concentration, memory, and cognitive functioning were
essentially normal and Claimant’s psychiatric symptoms were “well
controlled by her current medication regimen.”

(Tr. 1431).

Dr.

Kranau then proceeded to find Claimant moderately, markedly, or
severely

limited

assessment.

in

all

functional

(Tr. 1434-35).

areas

in

his

mental

RFC

The inconsistency in these findings

could not be more pronounced.
The ALJ also found Dr. Kranau’s findings were contradicted by
the opinion of Dr. Brian R. Snider, who also performed a mental
status examination on Claimant.

While Dr. Snider found Claimant’s

8

affect to be “slightly restricted and her mood appeared to be
somewhat

depressed”,

she

demonstrated

adequate

memory

and

concentration, average intelligence, and mild difficulty with
memory and concentration.

(Tr. 1264).

He concluded

[Claimant] would probably have little difficulty
understanding and carrying out simple instructions and
would likely have mild to moderate difficulty with
complex and detailed instructions. She is likely to have
moderate difficulty concentrating and persisting through
a normal work day due to psychiatric symptoms.
Her
ability to maintain a normal workday and work week
without interruptions from her psychiatric symptoms is
likely moderately impaired. In all likelihood, she would
have mild to moderate difficulty responding appropriately
to coworkers and supervisors. [Claimant] appears capable
of managing her own funds.
(Tr. 1265).
The ALJ is entitled to evaluate the inconsistency of a medical
opinion with the record and discount the weight given to the
opinion.
2009).

See Raymond v. Astrue, 621 F.3d 1269, 1272 (10th Cir.

Contrary to Claimant’s argument that Defendant provides a

post hoc explanation for the ALJ’s rejection of Dr. Kranau, the ALJ
stated the basis for rejection and this Court finds he was within
his function to assess the validity of the opinion in light of the
record.
Claimant also suggests that the ALJ erred in not addressing
Dr. Snider’s diagnosis of major depressive disorder and panic

9

disorder with agoraphobia. 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).

The fact Dr. Snider diagnosed these

conditions does not give rise to any further functional limitation
than those set out by the ALJ in the RFC.
Claimant next points out that the ALJ gave some weight to the
opinions of Dr. Jack Bankhead and Dr. Evette Budrich, consultative
reviewers but excluded some of the functional limitations that they
found.

These

physicians

identified

several

postural

and

environmental limitations which were not included in the RFC or
generally addressed by the ALJ in the decision.

(Tr. 820, 954-56,

985-87). While Defendant argues that these omissions were harmless
10

because the identified jobs do not implicate these restrictions,
the ALJ was required to address their effect upon Claimant’s
functional performance.

When evaluating the evidence, the ALJ

cannot pick and choose the evidence upon which he relies simply
because it supports his finding of non-disability.

Hardman v.

Barnhart, 362 F.3d 676, 681 (10th Cir. 2004). Without allowing the
vocational expert to consider these additional limitations, it
becomes problematic for the ALJ to have relied upon his testimony
at

step

five

in

identifying

representative

Claimant’s functional limitations.

jobs

which

met

On remand, the ALJ shall

address the additional limitations set out by the consultative
reviewers upon which the ALJ relied.
Application of the Grids
Claimant contends the ALJ erred in concluded she did not “grid
out” under the Medical-Vocational Guidelines (the “grids”).

In

doing so, Claimant argues that she should have been limited in the
RFC to sedentary work with no transferrable skills. Given that the
ALJ must reassess the RFC after considering the additional postural
and environmental limitations found by the consultants, the ALJ
shall consider the application of the grids should the appropriate
modifications to the RFC warrant.
Conclusion

11

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 28th day of September, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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