Hughes v. Social Security Administration
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
JANESSA J. HUGHES,
NANCY A. BERRYHILL,
Acting Commissioner of the Social )
Security Administration, 1
Case No. CIV-16-271-SPS
OPINION AND ORDER
The claimant Janessa J. Hughes requests judicial review of a denial of benefits by
the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g).
She appeals the Commissioner’s decision and asserts that the Administrative Law Judge
(“ALJ”) erred in determining she 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 h[er] physical or mental impairment or impairments are of
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.
such severity that [s]he is not only unable to do h[er] previous work but cannot,
considering h[er] 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,
Step one requires the claimant to establish that she is not engaged in substantial gainful
activity. Step two requires the claimant to establish that she has a medically severe impairment
(or combination of impairments) that significantly limits her ability to do basic work activities.
If the claimant is engaged in substantial gainful activity, or her impairment is not medically
severe, disability benefits are denied. If she 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, she is regarded as disabled and
awarded benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where
the claimant must show that she lacks the residual functional capacity (“RFC”) to return to her
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 her age,
education, work experience, and RFC. Disability benefits are denied if the claimant can return to
any of her past relevant work or if her RFC does not preclude alternative work. See generally
Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).
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.
The claimant was born October 8, 1972, and was forty-one years old at the time of
the administrative hearing (Tr. 46). She has a high school education, some college, and
vocational training in cosmetology, and has worked as an inspector (Tr. 46, 6). The
claimant alleges that she has been unable to work since July 22, 2011, due to joint pain
and stiffness in her fingers, toes, knees, and spine; mild to severe swelling and “flareups”; low immune system; depression; stress; and psoriatic arthritis (Tr. 51, 144, 171).
On December 3, 2012, the claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434 (Tr. 144-47). Her application
was denied. ALJ Doug Gabbard, II held an administrative hearing and determined that
the claimant was not disabled in a written opinion dated November 25, 2014 (Tr. 19-35).
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 a limited range of
medium work as defined in 20 C.F.R. § 404.1567(c), 3 i. e., she could lift/carry/push/pull
no more than twenty-five pounds frequently and fifty pounds occasionally, and
sit/stand/walk six to eight hours in an eight-hour workday with the option to alternately
sit and stand every fifteen to thirty minutes throughout the workday without leaving the
work station (Tr. 22). The ALJ then concluded that although the claimant could not
return to her past relevant work, she was nevertheless not disabled because there was
work she could perform in the national economy, e. g., arcade attendant and booth cashier
The claimant contends that the ALJ erred by failing to properly: (i) consider her
non-severe affective disorder and obesity; and (ii) evaluate the opinion of physician
assistant Sallee LaFave. The Court agrees with the claimant’s second contention, and the
decision of the Commissioner must therefore be reversed.
The ALJ found that the claimant’s inflammatory arthritis was a severe impairment,
but that her obesity, affective disorder, hypothyroidism, kidney stones, osteoarthritis,
psoriasis, deep vein thrombosis, chronic pain, and back pain were non-severe (Tr. 21).
The medical evidence relevant to this appeal reveals that between December 2009 and
In his RFC assessment, the ALJ stated that he limited the claimant to light work as defined in
20 C.F.R. §404.1567(b), but then specified exertional limitations consistent with medium work
as defined in 20 C.F.R. §404.1567(c) (Tr. 22). Elsewhere in the opinion, the ALJ stated he
limited the claimant to medium work, but then cited to 20 C.F.R. §404.1567(a), which defines
sedentary work (Tr. 34). In light of the fact that the ALJ gave great weight to the state agency
physician’s opinion that the claimant could perform medium work, it is apparent to the Court that
the ALJ’s RFC limited the claimant to medium work, and the extraneous references to light and
sedentary work are typographical errors (Tr. 31).
November 2012 the claimant was regularly treated by providers at Allen Rural Family
Medicine (“ARFM”) for weight loss management and medication refills (Tr. 386- 458).
Physical examinations at these appointments were consistently normal, and her diagnoses
included, inter alia, depression, anxiety, rheumatoid arthritis, gastroesophageal reflux
disease, hyperlipidemia, lumbar sprain/strain, osteoarthritis, hypothyroidism, and allergic
rhinitis (Tr. 386- 458 ).
Beginning as early as July 2009, the claimant was treated for psoriatic arthritis at
McBride Orthopedic Hospital and Clinic (Tr. 297-377, 469-96, 571-607).
March 2013, she regularly received biologic infusion treatments which reduced her
arthritic flares, but did not eliminate them (Tr. 297-377, 483-96).
At a follow-up
appointment on April 22, 2013, the claimant reported that her rheumatoid arthritis was
“very active” and that she was generally worsening and experiencing diminishing
function (Tr. 481). Dr. Robert McArthur concluded that infusion treatment had failed
and prescribed biologic injection therapy (Tr. 481). At a follow-up appointment on
November 19, 2013, Dr. McArthur noted the claimant was making “good progress.”
(Tr. 585). On July 9, 2014, Dr. McArthur noted the claimant was doing “quite well,” but
had some discomfort in her fingers, knees and back (Tr. 613). He referred her for a
lumbosacral spine MRI which revealed early degenerative disc disease and/or facet
disease at the lower three lumbar disc levels, minimal foraminal narrowing bilaterally at
L4-L5 and L5-S1, and no central spinal stenosis (Tr. 608).
On December 19, 2012, the claimant established care with physician assistant
Sallee LaFave, also a provider at ARFM (Tr. 383-85). Ms. LaFave treated the claimant
with medication for obesity, osteoarthritis, chronic pain syndrome, hypertension, and
diabetes through March 7, 2014, the last treatment note in the record (Tr. 380-85, 501-19,
537-58). Initially, Ms. LaFave’s physical examination findings were normal except for
the claimant’s obesity, and the claimant had no concerns apart from medication refills
(Tr. 380-85, 502-03). On July 28, 2013, the claimant reported back pain, but stated that
she was doing well, her medications effectively controlled her pain, and was able to
conduct her daily activities (Tr. 504). On physical exam, Ms. LaFave noted midline
tenderness in the claimant’s cervical spine and lumbar sacral spine, but found no other
abnormalities (Tr. 504-06). She indicated the claimant’s chronic pain syndrome, obesity,
and osteoarthritis were controlled (Tr. 506).
Thereafter, the claimant had similar
appointments with Ms. LaFave through December 4, 2013 (Tr. 508-19, 539-45). On
January 7, 2014, and continuing for the remainder of the appointments in the record, Ms.
LaFave’s physical examination findings were normal (Tr. 546-58).
On October 13, 2014, Ms. LaFave completed a medical source statement (“MSS”)
wherein she opined that the claimant could lift/carry ten pounds frequently and twenty
pounds occasionally, stand/walk less than six hours out of an eight-hour workday for an
hour and thirty minutes continuously, sit less than two hours out of an eight-hour
workday for an hour and thirty minutes continuously, and needed to lie down at times
during the workday to manage pain and other symptoms (Tr. 622-23). She further opined
that the claimant could occasionally climb, balance, stoop, kneel, crouch, crawl, reach,
handle, finger, and feel (Tr. 623). As to environmental restrictions such as heights,
machinery, temperature extremes, dust, fumes, humidity, vibration, etc., Ms. LaFave
stated “Patient can not physically handle these conditions. Patient is not able to work due
to her pain and conditions. She has to take days of [sic] every week.” (Tr. 623). As
support for her opinions, Ms. LaFave noted the claimant’s psoriatic arthritis diagnosis,
which she stated caused flare-ups, limited mobility, and severe pain, as well as the
claimant’s diagnoses of osteoarthritis and degenerative disc disease (Tr. 623).
LaFave indicated that her description of the claimant’s limitations were applicable since
she began treating her in December 2012 (Tr. 623).
At the administrative hearing, the claimant testified that her arthritis, which causes
extreme pain in her back and joints, was the most significant limitation that prevented her
from working (Tr. 51, 53). She further testified that her symptoms vary from day to day,
but that on a “good day” she can get dressed, pack lunches for her children, get them to
school, and do “maybe four hairdos” at the salon where she works twelve hours per
week, and on a “bad day” she can “hardly do anything.” (Tr. 52, 56). She stated she has a
“bad day” every three to seven days, and that she experiences swelling in her hands and
ankles on “bad days.” (Tr. 56) The claimant stated that she could work full-time ten days
per month, and must alternate between sitting and standing every hour and a half to two
hours (Tr. 54-55).
In his written opinion, the ALJ summarized the claimant’s testimony as well as the
evidence contained in the medical record. In discussing the opinion evidence, the ALJ
gave little weight to Ms. LaFave’s MSS because: (i) it was inconsistent with her own
treatment notes and the medical evidence of record, and (ii) she may have been
sympathetic towards her patient and issued her opinion in an effort to avoid
doctor/patient tension (Tr. 29-31).
The ALJ then gave great to the state agency
physician’s opinion that the claimant could perform medium work, but further required a
sit/stand option in light of the claimant’s testimony (Tr. 31).
Social Security regulations provide for the proper consideration of “other source”
opinions such as the one provided by Ms. LaFave. 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. 06-03p,
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, and set forth the types of sources that constitute “other
sources,” but made no reference to the factors in connection with Ms. LaFave’s MSS, and
it is therefore unclear 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 here because Ms. LaFave treated the claimant for nearly two years prior to
issuing her MSS, had the benefit of the entire treatment record from ARFM, and provided
the only MSS contained in the record. Furthermore, while the Court notes that the
consideration given to the inconsistencies between Ms. LaFave’s treatment notes and her
MSS was appropriate, the ALJ’s other reasons for rejecting her opinion were not legally
sound. First, the ALJ stated Ms. LaFave’s opinion was “not consistent with the medical
evidence of record,” but failed to identify any of the inconsistencies to which he was
See, e. g., Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004)
(“Because the ALJ failed to explain or identify what the claimed inconsistencies were
between Dr. Williams's opinion and the other substantial evidence in the record, his
reasons for rejecting that opinion are not ‘sufficiently specific’ to enable this court to
meaningfully review his findings.”), quoting Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003). Additionally, there is no evidence that Ms. LaFave completed her MSS
out of sympathy or that the claimant was insistent in obtaining a supportive opinion from
her, as the ALJ implied. See, e. g., Langley, 373 F.3d at 1121 (“The ALJ also improperly
rejected [the treating physician's] opinion based upon his own speculative conclusion that
the report . . . was ‘an act of courtesy to a patient.’ The ALJ had no legal nor evidentiary
basis for . . . these findings. Nothing in [the treating physician's] reports indicates . . .
that his report was merely an act of courtesy. ‘In choosing to reject the treating
physician's assessment, an 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.’”), quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th
Cir. 2002) [emphasis in original].
Because the ALJ failed to properly consider the “other source” evidence provided
by Ms. LaFave, 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 she is disabled.
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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