Dickson v. Social Security Administration

Filing 21

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
VIRGIL PAUL DICKSON,

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

Case No. CIV-16-270-SPS

OPINION AND ORDER
The claimant Virgil Paul Dickson requests judicial review of a denial of benefits
by the Commissioner of the Social Security Administration (“Commissioner”) pursuant
to 42 U.S.C. § 405(g). The claimant 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 REVERSED and
REMANDED 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, 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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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 on March 1, 1978, and was thirty-seven years old at the
time of the administrative hearing (Tr. 171). He has a high school equivalent education,
and has worked as a vending machine attendant, store laborer, backhoe operator, cook,
and cashier (Tr. 24, 43-44, 62-63). The claimant alleges that he has been unable to work
since April 5, 2012, due to obesity, asthma, depression, anxiety, memory loss, and
problems with his legs, back, shoulder, and neck (Tr. 190).
Procedural History
The claimant applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, on December 3, 2013 (Tr. 171-74). His application
was denied. ALJ James Bentley held an administrative hearing, and determined that the
claimant was not disabled in a written opinion dated September 9, 2015 (Tr. 14-26). The
Appeals Council denied 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.
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 light work as

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defined in 20 CFR § 404.1567(b) with frequent, but not constant, handling and fingering
bilaterally; occasional climbing ramps and stairs, balancing, stooping, kneeling,
crouching, and crawling; and never climbing ropes or scaffolds (Tr. 19). Additionally,
the ALJ found the claimant must avoid concentrated exposure to dust, fumes, odors, and
poorly ventilated areas; and have the ability to change position every twenty minutes
without leaving the workstation so as not to diminish pace or production (Tr. 19). The
ALJ further imposed the psychologically-based limitations of performing simple tasks
with routine supervision, and occasional contact with co-workers, supervisors, and the
general public (Tr. 19-20). The ALJ 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., inspector packer, product assembler, and
electrical accessory assembler (Tr. 24-25).
Review
The claimant contends that: (i) the medical opinion evidence submitted to the
Appeals Council undermines the ALJ’s decision, and (ii) the Appeals Council failed to
properly consider Dr. Gambrill’s medical opinion evidence. Because the ALJ’s decision
is not supported by substantial evidence in light of the evidence submitted to the Appeals
Council, the decision of the Commissioner must be reversed and the case remanded to the
ALJ for further proceedings.
The ALJ found that the claimant had the severe impairments of morbid obesity,
mild degenerative changes of the lower thoracic spine, diabetes mellitus, hypothyroidism,

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sleep apnea, hypertension, low back pain, asthma, chronic obstructive pulmonary disease
(“COPD”), memory problems, and adjustment disorder (Tr. 28). The medical evidence
relevant to this appeal reveals that between August 2010 and May 2015, Dr. Rachel M.
Franklin regularly treated the claimant with medication for hypertension, dyslipidemia,
asthma, diabetes mellitus, and chronic low back pain (Tr. 342-81, 561-71, 670-734). Her
physical examinations of the claimant were generally normal, although an April 2013
treatment note reflects the claimant was shifting in his seat due to back discomfort
(Tr. 726). Additionally, the claimant presented to the McAlester Regional Health Center
Emergency Room for back pain on several occasions in 2010 and 2011 (Tr. 435-45, 50006, 519-22, 525-30). A CT scan of the claimant’s thoracic spine conducted on May 12,
2011, revealed mild degenerative changes, and CT scans of his cervical spine and lumbar
spine taken the same day were normal (Tr. 414-15).
As to his mental impairments, the claimant first reported having trouble with his
memory on July 11, 2012 (Tr. 342-46). On August 12, 2012, counselor Ivora Sensibaugh
conducted a psychosocial evaluation of the claimant (Tr. 597-613). Ms. Sensibaugh
observed that the claimant was oriented and had a tearful affect, depressed mood, and
loose process (Tr. 612).

She diagnosed the claimant with depressive disorder not

otherwise specified, assessed a Global Assessment of Functioning (“GAF”) score of
forty-five, and opined that the claimant’s history of head injury could be a factor in his
current behavior and functioning (Tr. 612-13).

Providers at OU Physicians Family

Medicine regularly prescribed psychotropic medication between January 2014 and May

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2015 (Tr. 385-402, 678-711). On January 30, 2015, the claimant presented to Dr. Carol
Gambrill for depression and anger issues, reporting that his psychotropic medication was
helpful, but less effective (Tr. 742). Dr. Gambrill noted the claimant’s mood and affect
were within normal limits and diagnosed him with depression (Tr. 742). On March 27,
2015, the claimant reported “lots of anxiety,” but improved depression (Tr. 740). Dr.
Gambrill noted the claimant’s mood and affect were within normal limits and diagnosed
him with anxiety (Tr. 741).
Dr. Kathleen Ward conducted a consultative mental status examination of the
claimant on February 6, 2014 (Tr. 404-08). She noted the claimant’s mood appeared
slightly dysthymic, but that he self-described his mood as relaxed, and rated it as an eight
on a ten-point scale, with ten being the best (Tr. 405-06). Dr. Ward indicated that the
claimant had logical and organized thought processes, no bizarre thought content, and no
perceptual abnormalities; was oriented to time, date, and place; and that his cognitive test
score suggested normal cognitive functioning (Tr. 406). She diagnosed the claimant with
adjustment disorder with depressed mood (Tr. 406).
At the administrative hearing, the claimant testified that he was involved in a
motor vehicle-pedestrian accident as a child which resulted in injuries to his neck, jaw,
collarbone, and legs, and caused migraine headaches once or twice a month ever since
(Tr. 55-59).

He further testified that the pain in his back and legs was the most

significant limitation that prevented him from working (Tr. 50). The claimant stated that
he suffers from depression, which makes him “sad” and causes him to lose interest in the

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things he enjoys (Tr. 51). He also stated that he gets anxious in closed rooms and in
crowded spaces, and feels as though he is suffocating (Tr. 51, 55). As to specific
limitations, the claimant testified that he could sit for forty-five minutes before needing to
stand, stand for thirty minutes before needing to sit, walk less than block, and lift about
twenty pounds (Tr. 60).
In his written opinion, the ALJ summarized the claimant’s hearing testimony, as
well as most of the medical evidence contained in the record before him (Tr. 20-24). In
discussing the opinion evidence, the ALJ gave Dr. Ward’s consultative opinion great
weight, noting that she did not opine as to the claimant’s ability to work, but that her
unremarkable examination was consistent with the ability to perform simple tasks with
routine supervision (Tr. 23). Additionally, the ALJ gave great weight to the state agency
physicians’ opinion that the claimant could perform light work, but added postural and
environmental limitations due to the claimant’s sleep apnea, mild degenerative disc
disease, asthma, COPD, and hypertension (Tr. 23). The ALJ gave the state agency
psychologists’ opinion some weight, but due to the claimant’s mood deficits and the
possibility that the head injuries he sustained as a child could be a factor in his
functioning and behavior, he found that the claimant’s affective disorder was severe, and
then limited him to simple, routine tasks with only occasional social contact (Tr. 23).
Following the issuance of the ALJ’s written opinion, additional evidence was
submitted to the Appeals Council. Included in that submission was a Medical Source
Statement (“MSS”) from Dr. Gambrill dated October 30, 2015, wherein she opined that

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the claimant would be absent from work about three or more days per month due to back
pain, bilateral leg pain and weakness, neck pain, and memory loss (Tr. 769).
Additionally, Dr. Gambrill opined that the claimant’s pain was intractable and virtually
incapacitating to him; that physical work activities would increase his pain to such an
extent that rest and/or medication would be necessary; that pain would impair his mental
work activities to such a degree that he would inadequately function in such tasks or
abandon them; and that his prescribed medication would render him unable to function at
a productive work level (Tr. 770). As to psychological limitations, Dr. Gambrill opined
that the claimant could not understand, remember, or carry out simple instructions; make
simple work-related decisions; respond appropriately to supervision, co-workers, and
work situations; deal with changes in a routine work setting; maintain concentration and
attention for extended periods; handle normal work stress; or attend employment on a
sustained basis (Tr. 771-72).

Regarding the claimant’s exertional and postural

limitations, Dr. Gambrill opined that the claimant could walk less than one block without
rest or severe pain; sit for thirty minutes at a time; stand for fifteen minutes at a time;
sit/stand/walk for less than two hours total; would take unscheduled breaks every thirty
minutes for one hour; needed to elevate his legs up to waist level twenty-five percent of
the day; and could never lift/carry more than ten pounds, look down, twist, stoop,
crouch/squat, or climb ladders and stairs (Tr. 774-76). As objective support for her
opinions, Dr. Gambrill referred to the claimant’s score of eighteen on the Montreal
Cognitive Assessment, noting that a normal score was greater than or equal to twenty-six

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(Tr. 772). Dr. Gambrill concluded her assessment by indicating that her description of
the claimant’s limitations had been applicable since he was eight years old (Tr. 777).
The claimant’s contention regarding his impairments and their effect on his ability
to work is bolstered by the evidence contained in the record but submitted after the ALJ
issued his opinion.

The Appeals Council was required to consider such additional

evidence if it is: (i) new, (ii) material, and (iii) “relate[d] to the period on or before the
date of the ALJ’s decision.” Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir.
2004), quoting Box v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995). The Appeals Council
did consider this evidence (Tr. 5), and the undersigned Magistrate Judge has no difficulty
concluding that it does qualify.
Evidence is new if it “is not duplicative or cumulative.” 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). The additional records submitted to the Appeals
Council were clearly new evidence. Dr. Gambrill’s MSS was never presented to the ALJ
prior to his decision, nor did she opine as to the claimant’s limitations in the treatment
records the ALJ did review, thus her MSS is neither duplicative nor cumulative. 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.” Threet, 353 F.3d at 1191.
See also Lawson v. Chater, 83 F.3d 432, 1996 WL 195124, at *2 (10th Cir. April 23,
1996) (unpublished table opinion). In this regard, Dr. Gambrill’s MSS indicated that the

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claimant was not capable of performing unskilled or sedentary work due to his memory
impairment, back pain, leg pain and weakness, diabetes, anxiety, and depression (Tr. 76977). This evidence suggests the claimant has impairments discounted or completely
unaccounted for in his RFC, and it is therefore clearly material.
Finally, the evidence is chronologically relevant if 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). Dr. Gambrill supported her opinion
by referencing, inter alia, the claimant’s diagnoses of anxiety and depression, which she
first made in January and March 2015, as well as his back pain, which Dr. Franklin
treated as recently as May 2015, thus her MSS is chronologically relevant to the ALJ’s
decision. Therefore, the evidence presented by the claimant after the ALJ’s decision does
qualify as new and material evidence under § 416.1470(b), and the Appeals Council
considered it, so the newly-submitted evidence “becomes 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).
In denying the claimant’s request for review, the Appeals Council rejected Dr.
Gambrill’s opinion by finding that the new evidence did not provide a basis for changing
the ALJ’s decision (Tr. 1-5).

The Commissioner correctly states that the Appeals

Council is not required to make factual findings about a newly submitted treating
physician opinion when it denies review. See Vallejo v. Berryhill, 849 F.3d 951, 955-56

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(10th Cir. 2017). Nonetheless, the ALJ’s decision must be supported by substantial
evidence including any newly submitted evidence. Id. at 956, citing O’Dell, 44 F.3d at
858-59. Here, Dr. Gambrill’s opinion calls into question the claimant’s ability to perform
sedentary work, which is in direct conflict with the ALJ’s determination that the claimant
could perform a limited range of light work. Although not raised by the claimant, the
Court additionally notes that the opinion evidence from Dr. Franklin, Dr. Farrow, and a
State of Oklahoma Department of Rehabilitation Services physician, which was also
included in the submission to the Appeals Council, likewise conflicts with the claimant’s
RFC (Tr. 766-77, 797, 806-12). In light of this new evidence, the Court finds that the
decision of the Commissioner is not supported by substantial evidence. On remand, the
ALJ should re-assess the claimant’s RFC in light of all the new evidence, and then redetermine the work he 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.
DATED this 15th day of September, 2017.

____________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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